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Which State Can and Should You File Your Divorce Proceeding?
Maneuvering Through Complex Rules
Jurisdiction issues in divorce are more complex than those in civil cases. The jurisdictional requirements for an order or judgment for support or attorneys' fees are entirely different from those to obtain custody. Similarly, a court may have jurisdiction to dissolve a marriage, but not be able to issue binding judgments regarding support or custody. For example, a California court could issue a child support order against a father living in California, based on the fathers contact with the state, but find that another state has custody jurisdiction because that is where the child lived in the last six months.
Furthermore, a race to the courthouse can result when more than one state has jurisdiction. Though most states say the first to serve the divorce petition has priority, some states, such as Texas, hold that filing the action gives the court jurisdiction.
Due service of process according to state and local rules is necessary to gain divorce jurisdiction. If the defendant is a nonresident, absent from the state, or in hiding, most state statutes provide for substituted service, service by mail, and in some cases service by publication (24 Am. Jur. 2d 310-317).
Personal jurisdiction must be established for a court to order payment of money. To exercise personal jurisdiction over a nonresident defendant, a state must have a "long-arm" statute that authorizes actions against non-residents.
Courts have recognized the following bases for establishing jurisdiction:
It is not enough to simply meet these criteria for jurisdiction; the defendant must purposefully avail himself or herself of the benefits and protections of the state. Additionally, when a court attempts to assert jurisdiction on the grounds that the defendant caused an effect in the state, that effect must be foreseeable.
Merely visiting a child or sending child support does not in itself constitute "minimum contacts" with the state asserting jurisdiction, but failure to provide support for a needy family has been held to "cause an effect" in the state.
Personal jurisdiction until recently was automatically acquired when there was personal service of process on the defendant in the state. But there is a case on point before the U.S. Supreme Court challenging whether service alone is sufficient without minimum contacts and the person availing himself or herself of the benefits and protections of the state.
A state must have personal jurisdiction over a retirement-plan member to order the plan's division, unless the plan itself has sufficient contacts with the state to establish jurisdiction. Jurisdiction over a military pension plan cannot be based solely on the member's military assignment, but on domicile, residence, or consent (Federal Uniformed Services Former Spouses Protection Act of 1982). States differ in their treatment of military pensions; so choice of forum is critical.
Forum non conveniens
A particular state with jurisdiction may not be a convenient forum for litigation. A case may be stayed or dismissed for the following reasons:
A court ordinarily will stay rather than dismiss an action, so that if the case does not proceed in the convenient forum, the original state might once an take over (20 Am. Jur. 2d 172-182).
In rem jurisdiction
Domicile by either party gives that state in rem jurisdiction to dissolve marital status, even though the other party resides out of state. "Domicile" is defined as physical presence and an intention to live permanently in a location. Intentions are determined by where a person registers to vote and files a state tax return, which state issues his or her driver's license, and where the home is. The domicile of military personnel generally is the designated "home state," not necessarily the place of permanent residence (24 Am. Jur. 2d 238-240, 254).
A residence is where a person lives for any period of time, however short. A person may have several residences, but only one domicile. A state has no jurisdiction to grant a divorce if neither party has a bona fide domicile there.
Some courts have overlooked domicile and relied solely on residency to determine jurisdiction when the place of domicile is inconvenient. Some states are signatories to the Uniform Divorce Recognition Act, which states: "If both parties are domiciled in the state when a proceeding begins, a divorce filed in another jurisdiction has no effect." The act also provides rules for proof of domicile.
Owning property in a state is no longer sufficient to obtain in rem jurisdiction there. For a court to transfer property other than money (real estate, vehicles, etc.), the property must be in the state, and the court have personal jurisdiction over both parties. If the property is located in another jurisdiction, the title can be transferred only by filing a separate action in the state where it is located.
Because state interpretations of the Uniform Child Custody Jurisdiction Act (UCCJA) vary, the Parental Kidnaping Prevention Act (PKPA, 28 U.S.C. § 1738A) was enacted to set forth certain basic rules for determining jurisdictional disputes; the PKPA was designated for state courts and preempts state law. The PKPA provides that the home state of the child shall have custody jurisdiction, unless one state asserts continuing jurisdiction (28 U.S.C. § 1738 A(c)(2)).
Under the PKPA, the state that rendered the original custody decree can assert jurisdiction in any modification proceeding as long as one of the parties remains a resident and that state has jurisdiction under its own laws. (Alaska, for example, does not have jurisdiction under its own law; it uses the home-state test as the only basis for jurisdiction.)
The Supreme Court has held that the PKPA does not give federal courts jurisdiction to resolve custody disputes between two states. (Thompson v. Thompson, 484 U.S. 174, 108 S. Ct. 513, 98 L. Ed. 2d 512 (1988)). Thus there is no way to resolve competing state-court interpretations of the act.
The purposes of the UCCJA are:
The UCCJA applies to custody and visitation, and includes juvenile dependency, guardianship, and step-parent-adoption cases. It has been adopted in every state and the District of Columbia, but not in Puerto Rico and the Virgin Islands. Because it is a uniform act, state of interpretations may be cited as the authority. The provisions of the UCCJA apply in an international custody dispute, even though the foreign jurisdiction does not follow the UCCJA.
Jurisdiction becomes complex in custody cases involving American Indians. The UCCJA may apply to the case in question, but you might also need to invoke the Indian Child Welfare Act; the Indian Civil Rights Act; the Act of August 15, 1983; 67 Stat. 588; 28 U.S.C. § 1360; the appropriate tribal code; and the PKPA.
The UCCJA maintains that the child's home state or "recent home state" (the home state if not for a recent abduction) is the preferred forum to determine custody. Thus the state can assume jurisdiction if it is now, or has been within six months before proceedings began, the child's home state.
A court may exercise jurisdiction:
The UCCJA also mandates that courts apply the "clean hands" doctrine to discourage parties from unilateral action or from gaining an advantage in the litigation.
Although courts will consider the parties' agreement that a custody dispute be litigated in a particular forum, they are not bound by it.
The UCCJA has not been entirely successful in preventing custody litigation over the same child in sister states that have modified the uniform act. And, a judge can interpret the statute without regard to decisions in a sister state. Some judges have ignored sister-state interpretations of key sections of the act to find a basis for exercising jurisdiction when there was no basis for it (R.E. Crouch, Interstate Custody Litigation, BNA 1981).
Federal tort jurisdiction
Federal courts have consistently held that there is no diversity jurisdiction if the primary issue is the status of parent/child or husband/wife. But in many family-related tort actions, federal district courts have asserted jurisdiction. The Ninth Circuit, for example, has held that a federal district court has diversity jurisdiction over a non-custodial parent's tort action on interference with visitation. The Sixth Circuit has held that although the PKPA does not permit a cause of action for depriving a party of custody, a cause of action may be stated under the Civil Rights Act (72 U.S.C. § 1983).
Another state's final judgments and orders, if rendered by a court with subject-matter and personal jurisdiction over the parties, must be given recognition and enforced. For foreign and sister-state judgments to be recognized, the defendant must have been given notice and an opportunity to be heard.
The Revised Uniform Reciprocal Enforcement of Support Act (RURESA) and URESA (the original act) were passed to standardize and streamline procedures for enforcing support orders across state lines. The authority of the obligor's new state is asserted through the district of attorney's or another office or by registration of a foreign order and use of private counsel.
The RURESA provides for a two-state lawsuit: An action filed by the obligee in one state is sent to the obligor in another; the obligor's state establishes jurisdiction over the obligor, and may enter an order of support in the obligee's state. The RURESA also applies to "any foreign jurisdiction in which this or a substantially similar law is in effect."
Personal jurisdiction can be acquired over a party if he or she makes a general appearance in an action. States and judges differ on what constitutes a general appearance; consequently, it is possible to unwittingly appear.
An opposing lawyer can trap you into making a general appearance by your signing a written stipulation for a continuance, by commencing discovery, by making motions for sanctions, or by requesting other temporary relief. These tactics place you in a catch-22: If you do not defend the proceeding, and lose on the motion to dismiss, you may be subject to sanctions, attorney's fees, and malpractice exposure. On the other hand, if you defend the action, you may have made the fatal general appearance.
Some state statutes permit ex parte hearings and continuances after the motion to dismiss is filed. But unless this protection exists, indicate in writing to opposing counsel that you cannot respond formally, but will file the appropriate written response as soon as jurisdiction is determined. Type "special appearance" on all documents that are filed until jurisdiction is resolved. When you appear in court, state orally that you are present only for the purpose of making a special appearance to quash or dismiss the action.
In at least one state, however, losing a motion to dismiss constitutes a general appearance (5 Am. Jur. 2d 51-35). A counter tactic is to obtain an "antisuit injunction" that restrains your opponent from filing an action in a foreign jurisdiction. This can provide leverage by forcing your opponent to fight (24 Am. Jur. 2d 333-336).
In the jurisdiction battle, winner takes all. When both sides stand to lose everything, settlement is possible. The parties are willing to make concessions. If you can use the jurisdiction impasse to settle the case, everyone can be a winner.
A party may also obtain a quick and easy divorce if the spouse fails to file a response in the case and therefore defaults. The filing spouse serves their spouse with the Petition for Dissolution of marriage and if he or she does not respond with a formal Response to the court, then the case will proceed by default.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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