Determining Appropriate Jurisdiction in Divorce

Flicker, Kerin, Kruger & Bissada LLP

When a matter requires legal intervention, the first issue to be resolved is what court has jurisdiction over the case. This is just as true in family law as in civil or criminal law. However, determining jurisdiction in family law cases such as divorce can be more complicated than in other situations. 

The question of jurisdiction is particularly important in cases where spouses no longer live in the same area. Each state has its own laws regarding divorce and related concerns. If your spouse no longer lives in California, the regulations in their new state may differ significantly from those to which you are subject. Determining which state has jurisdiction will shape the outcome of your divorce. 

Understanding Jurisdiction in California

The Legal Information Institute defines jurisdiction as both the “[p]ower of a court to adjudicate cases and issue orders” and the “[t]erritory within which a court or government agency may properly exercise its power.” The term refers to both the powers courts have to make legally binding orders and the area in which courts have those powers. When a court has jurisdiction over a matter, it has the right to judge it, and other courts typically cede the right to make decisions about the case in favor of the court with primary authority.

This is true across all aspects of the law. However, there are several jurisdictions through which courts may gain the right to adjudicate a case. These include:

  • In personam (personal) jurisdiction: A court has the power to adjudicate matters directed against a person if that person lives or maintains connections within its boundaries, or otherwise consents. 
  • In rem jurisdiction: A court can adjudicate matters regarding property within its area of authority, such as personal or real property involved in a divorce. 
  • Quasi in rem jurisdiction: Effectively a mix of in rem and in personam, this allows the court to affect a specific named defendant’s interest in a particular piece of property, as opposed to all parties as permitted by in rem or all interests as permitted by in personam

When cases involve parties in different states, multiple courts will likely have the right to decide the case under in rem and in personam rules. Most states courts, including those in California, will cede the right to hear a case if the matter has already been brought before another court with the authority to adjudicate it.

Determining Jurisdiction in Divorce Cases

A combination of in personam and in rem jurisdictions are typically used to end marriages. Only one spouse must consent for a judge to dissolve a couple’s legal marriage, so it is not necessary for both partners to live within its boundaries. As long as one spouse is subject to it, the court can perform the most fundamental element of the dissolution. 

Every state has specific residency requirements that dictate whether a specific person falls within local jurisdiction for divorce proceedings. In California, a person must:

  • Have lived in California as their primary domicile for at least the past six months.
  • Have lived in a specific county as their primary domicile for at least the past three months.

If they meet both criteria, they are eligible to file for divorce in their local county court, regardless of where their spouse lives. This leaves two other concerns: the division of assets and spousal support

In rem theory allows a court to adjudicate matters involving the property of someone over whom it has in personam jurisdiction. In all states, assets a couple acquires during a marriage are considered joint property unless a valid prenuptial or postnuptial agreement dictates otherwise. As such, the assets eligible for division are considered the filing spouse’s property, granting the court authority in most situations regardless of where the property is actually kept. 

If a couple has no children and no interest in spousal support, this is all that is necessary for a divorce across state lines to proceed. The assets will be divided according to the laws of the state in which the petition for dissolution of marriage was first filed.

Spousal support adds an additional complication, however. Spousal support, or alimony, is an order by the court for one partner to pay the other person out of their separate property funds after their divorce is finalized. This can pose complications regarding in rem jurisdiction. Once the divorce decree is issued, the marriage is dissolved, and the assets are divided, the court no longer has direct authority over funds stored by the partner living outside the state. 

In this case, the court must exercise personal authority over the nonresident spouse. California has a “long-arm” statute permitting the state to authorize action against nonresidents. This statute states that its court “may exercise jurisdiction on any basis not inconsistent with the Constitution of [California] or of the United States.” 

This allows courts to exercise personal jurisdiction as long as the spouse consents, makes a “general appearance” in the state, or maintains “minimum contacts” with the state. A general appearance includes engaging with a legal proceeding within the state, such as divorce proceedings. As long as your spouse responds to your divorce settlement, they have likely made a general appearance and are subject to personal jurisdiction.

The Importance of Skilled Legal Counsel in Divorce

The legal theories surrounding jurisdiction are complex. If you are considering divorce in California, but you or your partner have not called the state home for at least half a year, you will benefit from knowledgeable legal representation. An experienced attorney will guide you through determining the most favorable jurisdiction for your divorce.

At Flicker, Kerin, Kruger & Bissada LLP, our skilled attorneys are prepared to assist you with your divorce, regardless of how complex it may be. Schedule your consultation today to learn more about how we can help resolve jurisdictional issues in your divorce.

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