Where you file your action is important, and if you and your spouse are already separated then you may have some questions about where you can file your divorce.
In determining where to file, you may hear the terms “Jurisdiction” and “Venue.” Jurisdiction simply refers to the power of a court to act. To have that power, Courts must have (1) personal jurisdiction and (2) subject matter jurisdiction.
Personal jurisdiction is the authority of a court to make decisions regarding the person involved in the lawsuit. For a court to have personal jurisdiction, they must have “minimum contacts” with the state that the court is in. Minimum contacts can include having a child living in the state or owning real estate or a business.
Subject matter jurisdiction is whether the court has the authority to hear a particular type of legal issue. For example, the Fourth Circuit Court for Knox County has subject matter jurisdiction to resolve the legal questions involved with divorces. Circuit, Chancery and Juvenile Courts can all resolve the legal questions involved in adoptions. But Circuit and Chancery Court do not generally have jurisdiction to resolve questions involving abuse of children. Knowing where to file a lawsuit is a question your lawyer will need to resolve.
Venue refers to the actual court where the matter may be heard, such as which county. In Tennessee, your lawyer can file a divorce in any county where either the husband or wife resides. However, some people can argue that another court (or venue) may be more appropriate. Generally, the most important consideration for a court dealing with a venue contest is to determine where most of the relevant evidence is located.
If only one party currently lives in Tennessee, your lawyer must determine if Tennessee has personal jurisdiction over the person that lives out of state. Tennessee has a statute that determines when nonresidents are subject to the jurisdiction of Tennessee Courts. The Tennessee long arm statute codified at Tennessee Code Annotated Section 20-2-214 states:
“Persons who are nonresidents of this state and residents of this state who are outside the state and cannot be personally served with process within this state are subject to the jurisdiction of the courts of this state as to any action or claim for relief arising from: (1) The transaction of any business within this state… (3) The ownership or possession of any interest in property located within this state;… (5) Entering into a contract for services to be rendered or for materials to be furnished in this state;… (6) Any basis not inconsistent with the constitution of this state or of the United States; (7) Any action of divorce, annulment or separate maintenance where the parties lived in the marital relationship within this state, notwithstanding one party's subsequent departure from this state, as to all obligations arising for alimony, custody, child support or marital dissolution agreement, if the other party to the marital relationship continues to reside in this state.”
As noted in subsection (7), if the parties resided in Tennessee as a married couple and one party continues to reside in Tennessee, then Tennessee has jurisdiction and the divorce can be filed in Tennessee.
In order to file for a divorce in Tennessee, Tennessee Code Annotated Section 36-4-104 requires that at least one party has to live in Tennessee for at least six months prior to filing. For purposes of a divorce action, “residency” refers to the domicile of a party. “Domicile” is a legal term that means not only where you live, but where you intend to live permanently. For example, a student may live in a dorm in Tennessee, but s/he doesn’t intend to live there permanently, so the student is not “domiciled” in Tennessee. At court, your lawyer will need to present evidence including the party’s driver’s license, voter registration card, change of mail request, utility bills, or perhaps employment records, to establish that this person not only is in Tennessee but intends to live here long term.
Thus, if you and your spouse have lived in Tennessee for over six months, then you can file for divorce in Tennessee. If you and your spouse lived together in Tennessee as a married couple, and you have resided in and remain in Tennessee for over six months, you can file for divorce even if you spouse has relocated. If you live out of state, but your spouse has resided in Tennessee for over six months, you can file for divorce in the county where your spouse lives. However, if you live out of state and file in Tennessee where your spouse resides, then you will be submitting yourself to the personal jurisdiction of Tennessee courts.
For any questions regarding jurisdiction, it would be wise to consult with an attorney to make sure you understand your options and the impact of filing for divorce. Held Law Firm is here to help. Call us at (865) 637-6550 to set up a consultation.
This article was written and produced by Melanie Hogg.