While ending a marriage is often an intensely emotional process, it is also a detailed legal process. When a couple files a petition for a dissolution of marriage, they are requesting that the state dissolve their marital status as well as their financial partnership.
Unlike a business partnership, a marriage is not bound to a specific location. If spouses no longer live in where the parties originally married, or acquired property, this can make the question of jurisdiction in divorce significantly more complex than in a business dispute.
There are several ways that jurisdiction in a divorce is determined. One of the most common methods is acquiring the non-filing party’s consent. Below, we examine how to obtain consent to jurisdiction and how it can impact a divorce.
Basis for Determining Jurisdiction in California
In the United States, a court can hear the case if it has subject-matter and personal (in personam) jurisdiction. The judicial system is broken down into districts, also called venues. In California, the venue depends on the county where the involved parties are located. For example, if a couple lived in San Mateo their entire marriage and files for divorce, their case is under the authority of the Unified Family Court division of the Superior Court of San Mateo.
The question of jurisdiction becomes more complex if a couple recently relocated or if they no longer live in the same county. If a couple recently moved to California, or if one party moved to another state or county, determining jurisdiction will be more complicated. While laws regarding court jurisdiction vary by state, they rely on in personam jurisdiction, which is authority over the person. This means that the court in which the petition is filed must have the right to make decisions for at least one party in the divorce, i.e. one party meets the residency requirements. A family court in California may have authority over a case if either spouse has lived in the state for the last six months and in the county for the previous three months.
Couples who no longer live together can have more than one venue where they can file the petition for dissolution. If one person has lived in San Mateo County for four months and the other has lived in Marin County, both courts have in personam jurisdiction and can hear the matter. If multiple petitions are filed, the court that receives the first petition served effectively on the other party will typically handle the case, while the other petition will be most commonly dismissed.
In multi-jurisdictional situations, neither court has personal jurisdiction over both parties. There may be few differences between the courts in neighboring counties, but there can be significant differences in the laws surrounding characterization of assets, spousal support, etc. from state to state. The venue where a divorce is heard can shape the division of assets, support, and other financials issues in a dissolution. It can be beneficial for one party to file and serve their petition first and ensure their local court establishes personal jurisdiction for their non-resident spouse.
What Is Consent to Jurisdiction?
There are two primary ways to establish personal jurisdiction over a non-resident spouse during a divorce proceeding:
- Personal service of process: The filing spouse can work with another, uninvolved adult to have their partner personally served with divorce paperwork in the jurisdiction. This may include the county sheriff, a professional process server, or another legal adult, depending on the laws of the state where the non-resident person lives. If the person is only visiting for custodial reasons, the court may decline jurisdiction.
- Consent to jurisdiction: Alternately, the non-resident spouse may consent to the court’s jurisdiction directly or indirectly if they are not personally served, typically by signing a Notice of acknowledgement of the proceedings.
Consent can take on other forms. Examples of jurisdictional consent include attending related legal proceedings, following the rules or orders issued by the court, signing an affidavit of service, or otherwise participating in the case. Participation is considered implicit consent to the jurisdiction of the court.
The Importance of Consent to Jurisdiction During Divorce
Consenting to jurisdiction matters because it permits the court to make decisions not just over the resident but also regarding the couple’s assets. Most couples have significant joint property that must be divided in their split. However, because it is jointly owned, the court cannot make decisions regarding it unless it has personal jurisdiction over both parties or the property itself.
Direct consent is usually the most efficient way to resolve this issue. If both spouses are cooperative, the filing party can have a server mail the other person the petition for dissolution packet (divorce paperwork) and wait for them to return the signed Notice and Acknowledgement of Receipt. This satisfies both the requirements to serve them and to achieve consent in a matter of days, allowing the proceedings to move forward without delay.
If the recipient refuses to sign the acknowledgment, any other engagement with the legal proceedings constitutes consent. This may take longer but will still permit the case to move forward.
An experienced divorce attorney can provide expert legal counsel to help couples living in different counties or states proceed with a dissolution. (Custody disputes can also impact jurisdictional issues, but that topic is not discussed in this article.)
Answering Your Divorce Jurisdiction Questions
Jurisdiction plays a significant role in the outcome of marital dissolutions. It is crucial to understand how different venues may impact the outcome of a divorce before filing the initial petition. At Flicker, Kerin, Kruger & Bissada LLP, our experienced attorneys are prepared to counsel clients on the most effective ways to confirm personal jurisdiction in divorce. Consultations may be scheduled to discuss specific needs and explore the best path forward for prospective clients.