In addition to satisfying residency requirements for the spouses in a military divorce, the Wisconsin divorce court must also have jurisdiction over the children. Wisconsin is one of 49 states that adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). This law establishes the proper state to handle issues of child custody and placement.
The UCCJEA requires that the “child custody determination” (including divorce and paternity cases) occurs in the child’s “home state.” The home state is where the child has lived during the six months before the case was filed. There are some exceptions for cases involving domestic violence/safety and children under t he age of six months. Once an order is entered in the home state, it is very difficult to modify the order by filing a motion in another state, unless neither parent lives in the home state anymore.
Therefore, not only must the residency of the parents be established to file for divorce, but the proper jurisdiction of the couple’s children must be established under the UCCJEA. It is entirely possible that Wisconsin could have jurisdiction to hear a divorce through a parent’s residency, but not to address child-related issues.
Consider this example: Both servicemembers are originally from WI, and vote here. They are married in Wisconsin. Husband is then stationed to Texas. The couple buys a home and live there for three years. Wife becomes pregnant and gives birth in Texas in January. She then moves with the child to Wisconsin and files for divorce in March. Where is jurisdiction? Arguably, either could be residents of Wisconsin based on their home of record, voting record, etc. They could also be residents of Texas due to their home ownership. But jurisdiction of the child is unclear, as she does not have a clear “home state.”
Because servicemembers are often stationed around the country, or even overseas, the above scenario is rather common. Your divorce or child custody lawyer must have a clear understanding of jurisdiction for the spouses and children to avoid unnecessary waste of time and fees.
Attorney David Kowalski routinely handles military divorces for both servicemembers and their spouses. Contact him at 608-405-6663 with any questions.
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