Maneuvering Through Complex Jurisdictional Rules During Divorce
Jurisdiction issues in divorce are complex. For example, a court may have jurisdiction to dissolve a marriage, but not be able to issue binding judgments regarding support or custody. This could play out in a scenario where 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.
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:
(1) Presence, domicile, or residence in the state;
(2) Consent of the party;
(3) General appearance in the action;
(4) Doing business or some other act in the state that meets the “minimum contacts standards” of the due process clause;
(5) Causing an effect in the state by act or omission elsewhere;
(6) Ownership of property in the state; or
(7) “Other relationships to the state” that make the exercise of jurisdiction reasonable (20 Am. Jur. 2d 118. 146. 146-2. 146-7).
It is important to note that it is not enough to simply meet these criteria for jurisdiction. Additionally, 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.
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.
Personal jurisdiction may 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. 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.
For guidance on common divorce issues such as jurisdiction, contact an expert Los Angeles family lawyer at Walzer Melcher LLP today.