We’re talking here about a term called “venue.” Pronounced “VIN you,” it describes where within the state of Alabama (in what county) a divorce should be filed. This note addresses venue for adversarial divorce. I’ll follow up in the next day or two with separate notes on venue for post-divorce matters and venue for uncontested divorce.
Alabama has a specific code provision that specifies venue for a divorce, Ala. Code Â§ 30-2-4. Here’s what it says: “Complaints for divorce may be filed in the circuit court of the county in which the defendant resides, or in the circuit court of the county in which the parties resided when the separation occurred, or if the defendant is a nonresident, then in the circuit court of the county in which the other party to the marriage resides.”
Let’s look at a real-life example. Let’s say that John and Mary lived in Shelby County together, and then they separated. John moved to Escambia County, and Mary now lives in Jefferson County.
If John files for divorce, he has his choice of Shelby County (the county where they lived when they separated) or Jefferson County (where the defendant Mary resides), but he cannot file in Escambia County. And if Mary files instead of John, she has her choice of Shelby County or Escambia County but cannot file in Jefferson County.
Can you see the way this might set up a race to the courthouse? How about a waiting game? Let’s say that John is comfortable with the treatment he would receive in Shelby County or Escambia County but wants to avoid Jefferson County at all costs. If he wants to file now, he can file in Shelby County. If he wants to wait, he can do so, secure in the knowledge that Mary cannot file in Jefferson County as long as John doesn’t live there.
What if John is comfortable with Jefferson County but wants to avoid Shelby County and Escambia County? And let’s say that, at the same time, Mary really wants to be in Escambia County. This sets up the proverbial race to the courthouse. If John files first, he can ensure that venue is in Shelby County, and if Mary files first, she can put the divorce in Escambia County.
What about that waiting game? Let’s say that, for whatever reason, neither party wants to litigate this divorce in Shelby County, and that both parties know this to be the case. Mary really wants it to be in Jefferson County, and John really wants it to be in Escambia County. John decides to wait, hoping to force Mary to file in Escambia County. Mary decides to wait, hoping to force John to file in Jefferson County. Hmmm. This could take a while.
Now let’s change the facts and assume that John now lives in Nashville. He can still file in Alabama. Where? We know he can file in Jefferson County, because that’s clearly stated in Ala. Code Â§ 30-2-4. Can he also choose to file in Shelby County, where the parties resided when they separated? To my knowledge, this issue hasn’t yet been litigated. The better argument would seem to be that he could, because the statute clearly states alternatives by the use of the term “or.”
Now let’s keep the same addresses but assume that it’s Mary who is filing. She lives in Jefferson County and John now lives in Nashville. Can she sue him for divorce in Alabama? Yes, because Mary lives in Alabama now and because they lived in Alabama when they were together.
Where can she file? She must file in the county in which she resides, Jefferson County. This is by case law, Ex parte Moss, 179 So. 2d 753 (Ala. 1965).
Venue can be waived. Ex parte AAMCO Transmissions, Inc., 897 So. 2d 285 (Ala. 2004). The use of waiver of venue is often crucial in uncontested divorce, so that’s the subject of a later note.