Chicago natives may now know that Cubs player Ben Zobrist filed for a legal separation from his wife, Julianna Zobrist, in Tennessee, citing marital misconduct. Meanwhile, Julianna Zobrist has filed for dissolution of their marriage in Cook County, Illinois. Local reports seem to indicate that Ben Zobrist filed before Julianna Zobrist, but it is unclear since the filings were so close together. Of course, the legal question in all of this is, which state has divorce jurisdiction?
Divorce Jurisdiction and Illinois Residency Requirement
In order to file for divorce in Illinois, you have to be a resident of the state of Illinois for ninety (90) days or more. So, clearly, by Ben Zobrist’s wife filing for divorce in Illinois she is alleging that she is an Illinois resident. Tennessee, presumably, has their own residency requirement for filing separation or divorce proceedings.
Exceptions to “First to File ‘Wins’ Jurisdiction”
Generally speaking, the first petition filed “wins” jurisdiction, with some exceptions. The first person to file usually secures jurisdiction in the state they filed in, but this can be challenged. For example, if someone files first, but in a state where they do not meet that state’s residency requirement, that could be grounds to have the first filed petition dismissed, depending upon local laws.
“Home State” Divorce Jurisdiction When Children are Involved
Further, if there are minor children involved, their Allocation of Parental Responsibilities (formerly known as Custody) has to be adjudicated in their “home state”. The home state is the state where the minor children resided for the six (6) months directly prior to filing (periods of temporary absence for vacations, etc. are not included in the six-month calculation.) So, even if the first filed petition would technically win jurisdiction, if there are minor children and that first filed petition wasn’t filed in the children’s home state it gets complicated. You are faced with one court deciding the merits of the divorce like property division and support, and a different court in a totally separate jurisdiction deciding on a parenting time schedule and allocation of parental responsibilities (previously known as Custody in Illinois).
That is a lot of attorneys and a lot of litigation between two different states. So, generally in those sorts of proceedings, the person who filed in the divorce jurisdiction that is not the home state (even if it was the first filing filed) will dismiss their action voluntarily so that everything can be litigated in the same state, to conserve resources.
Divorce Jurisdiction Complicated By Unique Property Division Issues
Another scenario where first to file may not win jurisdiction is in situations with unique property division issues. For example, some military pensions and retirement accounts can only be divided by a specific state, until the former/current service member agrees to the division. In that scenario, even if a spouse was “first to file” if it wasn’t in the state which has authority to divide the spouse’s military retirement, the person may dismiss their case in favor of going with the jurisdiction which can divide the asset.
It will be interesting to see how the jurisdictional issue in the Ben Zobrist divorce (or legal separation) case is resolved. We suspect that someone will file a Motion to Dismiss the other’s case; or, that someone will withdraw their petition, but it certainly raises serious questions about competing jurisdictions in domestic relations proceedings.
In the meantime, while we wait to see what happens with the Zobrist divorce jurisdiction battle – Go Cubs, go!