If you are going through a divorce, or are about to go through a divorce, you have many important legal rights. The Constitution, the U.S. Supreme Court, as well as the laws of many states, guarantee you a number of rights and protections.
Your ex-spouse may try to “run you through the wringer.” However, you have legal rights, which can prevent him from doing that. Some of the many legal rights, which frequently arise in divorce cases, include:
The right to notice and opportunity for a hearing
The Fourteenth Amendment to the Constitution says that no state can deprive you of life, liberty, or property without due process of law. The Supreme Court has held that this means that, before a court takes any action against you, the court has to notify you, and the court has to give you an opportunity to present your argument in court. Thus, a court cannot grant your ex-spouse a divorce, or make any ruling regarding custody, visitation, property division, or alimony, without first notifying you and giving you an opportunity to respond.
The right to a neutral decision-maker
The Supreme Court has also held that the “due process” clause guarantees you the right to a judge who is neutral. Thus, if you have a judge who is biased (for example, is your ex-spouse’s relative or friend) then you have the right to ask that the judge recuse himself from your case.
The right to file your divorce petition for free, if you can’t afford the filing fee
Most states require you to pay a filing fee when you file your divorce petition. But, in Boddie v. Connecticut, the Supreme Court ruled that the state cannot deny you the right to a divorce if you can’t afford to pay the filing fee. So, if you want to file for divorce and can’t afford to pay the fee, ask the court clerk for a “pauper’s affidavit” which will allow you to file for free.
The right to remarry someone of another race
In Palmore v. Sidoti, the mother, who was white, divorced her husband, and obtained custody of their three-year-old daughter. The mother then remarried an African-American. The trial court then changed custody of the child to the father; the trial court held that, because of the “social consequences of interracial marriage,” it was not in the child’s best interests to grow up in a household with a stepfather of a different race.
The Supreme Court reversed the trial court. The Supreme Court ruled that the trial court could not take the race of the stepparent into consideration when awarding custody. The mother had the constitutional right to marry anyone regardless of race. So, it the mother married interracially, the trial court could not penalize the mother for her marriage, by removing the child from her custody.
The right to custody of your children if your ex-spouse dies
The Supreme Court has stated that, if your ex-spouse dies, the state must return your children to you, unless a court rules that you are an unfit parent. A court cannot rule that you are an unfit parent unless the court first gives you notice and a hearing.
In many states, you cannot be denied custody simply because you are a woman
In much of the nineteenth century, the husband was considered the “head and master” of the household, and the husband would automatically obtain custody of the children when the parties divorced. Then, in the late nineteenth century, many states changed their laws and created the “tender years doctrine,” which held that courts were to prefer the mother in child custody cases.
Since the 1970s, many states have passed laws stating that the predominant consideration in custody cases is the “best interests of the child,” and that a court may not prefer to award custody to either parent because of the gender of that parent. The Supreme Court, however, has not yet ruled on this issue, and the laws vary from state to state. It would be wise to consult an experienced family attorney to see what the law in your state says on this issue.
If a third-party, who is not a parent, seeks visitation with your child, the court must give your decision “special weight.”
In Troxel v. Granville, the Supreme Court held that parents have a “fundamental right … to make decisions concerning the care, custody, and control of their children.” Troxel held that a consequence of this right is, if someone other than a parent seeks visitation with a child, the court must give the parent’s decision “special weight.” This holding often comes into play when grandparents seek visitation.
This does not mean, however, that a court may never award visitation to a non-parent. The Supreme Court did not specify exactly how much weight a trial court must give to a parent’s decision; the Court said, “We do not, and need not, define today the precise scope of the parental due process right in the visitation context.” However, Troxel makes clear that a court may not award visitation to a non-parent simply because the court believes visitation would be in the child’s best interests.
The right to have your case heard in a state with which you have some contact
In general, you must have some contact with a state, in order for a court of that state to have jurisdiction to hear your case. The state in which your case may be heard depends in part on the issues being adjudicated.
Granting of a divorce – which state may hear the case?
A court may grant a divorce decree if either spouse resides in the state where the petition is filed. Thus, if your husband files a divorce petition in his state of residence, the court may grant him a divorce decree even if you have no connection with the state. See Williams v. North Carolina. However, the court may not adjudicate financial issues, or custody issues, unless you have some type of contact with the state.
Adjudication of financial issues – which state may hear the case?
The Supreme Court has held that, in a divorce case, a court may not adjudicate financial issues (for example property division and alimony) unless the defendant has “minimum contacts” with the state. In Kulko v. Superior Court, the father, who lived in New York, bought his daughter a one-way plane ticket to California, where the girl’s mother lived. The mother then filed a motion in a California court. In the motion, Mother asked the California court to modify Father’s financial obligations which had been entered in the original divorce decree.
Father’s only connection with California was that he had bought his daughter a one-way plane ticket to go there. The Supreme Court held that Father’s buying his daughter an airline ticket to California was not enough to give a California court jurisdiction to rule on financial issues related to the divorce. In the Supreme Court’s view, Father did not have minimum contacts with California.
The Supreme Court has not precisely defined “minimum contacts”, and the law on minimum contacts is highly complex and takes up the space of many law school lectures and textbooks. However, other Supreme Court cases have said that in order to have minimum contacts with a state, a person must have “purposefully avail[ed] [her]self of the privilege of conducting activities within the forum State,” and “the defendant’s conduct and connection with the forum State [must be] such that he should reasonably anticipate being haled into court there.”
So, in order for a court to have jurisdiction to rule on financial issues in your divorce case, you must have purposefully availed yourself of conducting activities with the state, and your conduct and connection with the state must be such that you should reasonably anticipate being haled into court there. (The Supreme Court has also held that, if you do not have “minimum contacts” with a state, a court of that state may still hear financial issues in your divorce case, if you are served with the summons when you are present in the state.)
Adjudication of child custody and visitation – which state may hear the case?
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) governs the venue for child custody decisions. The UCCJEA is state law, not federal law, but, because all fifty states have adopted the UCCJEA, then your rights under the UCCJEA are similar anywhere in the country. The UCCJEA is highly complex, and cannot be fully discussed here. However, to sum it up, the UCCJEA says that a court may not make a child custody determination unless at least one of the following is true:
Also, if any court has made a child custody determination, that court has “continuing, exclusive jurisdiction” over any future cases involving custody of the child. “Continuing, exclusive jurisdiction” means that no other court may modify or change the child’s custody decree unless a court determines that the child, the child’s parents, and any person acting as a parent do not currently reside in the state.
NOTE: The above description only scratches the surface of the UCCJEA. There are other provisions of the UCCJEA that may allow, or not allow, to hear your particular case. If you have further questions about the UCCJEA, consult an attorney.
Know Your Rights and Protect Them!
If you are in the process of a divorce, and you believe that a court has violated any of your rights mentioned in this article, speak up and assert your rights. Your ex-husband may want to trample on you, but courts and legislatures have determined that you have the constitutional right not to be trampled on.
Can a family court proceed against me in a divorce case without my knowledge?
A family court cannot proceed against you in a divorce case without your knowledge. It means that a family court would have to notify you in case your spouse filed for divorce. You will be afforded an opportunity to engage an attorney, appear before the court and present your side of the story before any orders are passed.
What to do if a judge has bias against you in a divorce case?
You have the right to ask a judge not to hear your case if he has a bias against you in a divorce case. It’s part of the due process as held by the Supreme Court. However, you would have to give reasons for the bias or prove that the judge is related to your soon-to-be ex.
How do I file a divorce case if I don’t have money?
The Supreme Court says you can file for a divorce if you don’t have money. See Boddie v. Connecticut (case) in this regard. You would have to ask the court clerk to give you a pauper’s affidavit for filing a divorce case without having to pay for the court fee.
Will custody change if I remarry someone from another race?
A trial court cannot change the custody law if a mother remarries someone from another race, the Supreme Court has decided this unequivocally.
Is gender a consideration in custody cases?
Gender is no longer a consideration for trial courts in awarding custody to either parent. A family court, however, will consider the best interest of the child as well as fitness of a parent while awarding custody.
Can someone else ask the court for visiting my children?
A court would have to give “special weight” to a parent’s decision if someone else files for visitation. This is because the Supreme Court in Troxel v. Granville decided that only parents have a fundamental right to make decisions regarding the care, custody, and control of their children.
How do I choose a state to file divorce case?
If you choose a state to file a divorce case, make sure you have lived there for a while and that it’s convenient for you to live there now. Commuting from one state to another for hearing of a divorce case would test your limits. The state in which your case may be heard depends in part on the issues being adjudicated.
Can a state other than my resident state hear divorce case?
A court can hear a divorce case in a state where your spouse resides—irrespective of the state of your residence. It means either of the spouses can file a divorce case in the state of their residence.
Attorney Kyle Persaud is the founder of Persaud Law Office based in Bartlesville, OK, where he has years of experience assisting local women and moms handle cases in divorce/separation. Mr. Persaud holds a B.A. from Oklahoma Wesleyan University and a J.D. from the University of Tulsa College of Law.
Hello, I am seeking advice as I have been unable to divorce my spouse. I filed for divorce in 2018 and I still have not been able to have a final trial. The judge is not responding to the Judicial Complaints Commission. The judge went as far as to grant child support and orders, however my husband has not responded or abided by any of the rulings of the court. The court at this point is not holding him to any of the rulings and the court is now not responding.
Have you ever come across a case such as mine and what recourse do I have? I would appreciate any information or direction you can point me toward. I feel as if my life and rights as a person are being stripped of me.
