Q: As the defendant, can I file a motion to dismiss a divorce under these circumstances?
My wife and I have lived in separate states for a couple of years and my kids have been living with *me* for the last year. She filled for divorce in her state of Georgia about 3 months ago. Since then, I've moved from state to state, currently residing in Florida, and have not yet filed a response to the divorce. Can I have this divorce dismissed under the grounds of her filling in the wrong state or that the home state of the kids is not Georgia? I would then like to file from Florida.
A: She did not file in the wrong state. She is allowed to file for divorce in Georgia if she has lived here for at least 6 months. Child custody is a separate issue. The home state is where the children have lived for the last 6 months, which seems difficult to determine based upon you saying you've moved from state to state. It is possible for the divorce to proceed, while custody is determined in another state. However, it is sometimes best to look at the big picture. If the case is already filed in Georgia, the case may be in a county and with a judge where you would be likely to get a good result. You should consult with an attorney about your options.
A: If you haven't lived in Georgia then jurisdiction and venue is inappropriate and she cannot file a divorce here. That said, objections to jurisdiction and venue are called "affirmative defenses" that need to be raised in your answer. If you were served three months ago, which is unclear, the court may not allow you to assert affirmative defenses at this time because you did not respond within 30 days.
All that said, if it was dismissed, and you decided to refile, you'd have to file in Georgia, because this is where she lives. As confusing as it sounds, jurisdiction and venue typically lie in the county where the Respondent lives. You file, she's in Georgia, you file in Georgia. She files, you're in Florida, she files in Florida.
Home state of the child would factor in if this was an issue of custody alone, but it is not.
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