Many residents of Bucks County Pennsylvania work in the adjoining counties of Mercer, Burlington and Hunterdon, New Jersey and vice versa. When those residents experience marital problems, it is not unusual that one or the other of them may relocate from Pennsylvania to New Jersey or vice versa, and may then have a legitimate option to file for a divorce in either state.
It is, of course, only in those cases in which the relocating party has resided in the new state for the required period of time to qualify them to file for the divorce in the newly acquired state of residency that this is a legitimate option. No party can or ever should attempt to avoid the jurisdiction of their home state by relocating or fabricating the length or legitimacy of their new residency in order to acquire jurisdiction.
If the new state is New Jersey, a person must have 12 months of continuous residency prior to the filing of the complaint for divorce. If the new state is Pennsylvania, the period of continuous residency prior to the filing of the petition for divorce is 6 months.
In either case, the party filing for the divorce also has the option of filing in the original state if his/her spouse continues to reside in the original state. The change of a person’s state of residency may have significant ramifications on a variety of levels above and beyond simply the jurisdiction for their divorce. State Income Tax, Estate Tax and a variety of other factors must all be considered before changing one’s residency.
However, as Divorce Attorneys we are often asked whether a client should file in one state or the other and the legal ramifications of doing so. In order to analyze that question, the procedural and substantive differences in the law of the respective states as they apply to the facts of a specific case must be carefully considered.
There can be no definitive answer as to which state may be the preferred jurisdiction for the divorce, and each case must be examined in the context of its own factual and legal issues as well as in the context of the other factors mentioned above. Our office has six attorneys who are licensed to practice divorce law in New Jersey and four who are licensed to practice in Pennsylvania. Very often, one or more of those attorneys must be consulted in each case in order to make an intelligent decision as to whether a complaint can be properly filed in either state and what may be the ramifications of such filing.
Very often, we, as Divorce Attorneys, need to also confer with our estate, tax and real estate partners. Sometimes the decision can be made based solely upon divorce related issues, and other times, it is far more complex. However, typical divorce related issues which must be addressed often include:
- The grounds for the divorce – that issue is generally not significant since both Pennsylvania and New Jersey now include and encourage the use of broad “no fault” grounds for divorce.
- The time which either state may take to process the case – New Jersey has adopted a “Best Practices” doctrine which encourages the Courts of New Jersey to conclude an action for divorce within 12 months of its filing date; Pennsylvania has no similar provision. Generally, but not always, cases take longer to conclude in Pennsylvania than in New Jersey.
- The Child Support Guidelines – although each state’s Guidelines are different, they are not vastly different. In both states, the Guidelines are applicable to families up to a combined income of $240,000 and over that amount, both states have similar case law for determining “above guidelines” child support.
- Alimony – Pennsylvania has a presumptive amount for temporary alimony defined as being an amount equivalent to 40% of the difference between the parties income; New Jersey has no such presumption. Generally speaking, New Jersey is more liberal in awarding post divorce alimony in higher amounts and for longer periods of time.
- College expenses – a party’s responsibility for college expenses for the children may vary depending upon the state of jurisdiction
Procedurally, Pennsylvania and New Jersey are very different and depending upon the needs of each case, the respective procedure of one or the other of the states may be better suited or lesser suited to a particular case.
In short, just as when one establishes a state of residency for real property tax reasons, personal income tax reasons or estate planning reasons, care should be taken to choose the proper jurisdiction for one’s divorce if, in fact, a person qualifies for jurisdiction in either state.