§ 13.01 Jurisdiction and Choice of Law

• Jurisdiction: United States
• Publication year: 2021

§ 13.01 Jurisdiction and Choice of Law

[1]—Jurisdiction to Order Support Payments

A court has jurisdiction to order support payments from a spouse only if the court has personal jurisdiction over the obligor.¹ One way that courts may obtain personal jurisdiction over the obligor is if that spouse has sufficient contacts with the forum to make the exercise of jurisdiction consistent with traditional notions of fair play and substantial justice.² A number of cases involve a discussion of what level of contacts is sufficient to satisfy this test.³ Under a long-arm statute, if the person is served within the state personal jurisdiction can exist via transient jurisdiction, even absent sufficient minimum contacts with the state.⁴ Personal jurisdiction obviously requires proper notice.⁵ The spouse may make a special appearance in the initial proceeding to challenge the forum court's jurisdiction, or may wait and collaterally attack the decree when the other spouse attempts to enforce the judgment in the obligor's domicile. If the objecting spouse files a general answer in the initial proceeding, however, this will be treated as a consent to the court's jurisdiction, and the spouse will not be able to challenge the rendering court's jurisdiction.⁶

A number of cases consider the outer reaches of personal jurisdiction in divorce. A North Carolina appellate court held that the trial court had personal jurisdiction over the husband despite the fact that the parties never established a permanent home in North Carolina.⁷ (The parties married in North Carolina and moved to various countries due to the husband's job.)

Courts tend to require the parties' contact with the forum to have been close in time to the filing of the divorce action. In a Georgia case, the parties married in Georgia in 1978. The husband lived in North Carolina or was posted abroad in the military. The wife moved to Georgia in 1998 and filed for divorce. The Georgia Supreme Court held that Georgia did not have personal jurisdiction over the husband.⁸

In Kulko v. Superior Court,⁹ the U.S. Supreme Court concluded that the husband did not have sufficient contacts with California for a California court to establish personal jurisdiction over the husband for purposes of ordering child support, where the couple had married in California during a brief stay decades earlier and the husband had consented to his children moving from New York to live in California with their mother.

In a California case, the wife sued for divorce in California. The court ruled that, because the husband had moved from California three years before, the court did not have personal jurisdiction.¹⁰

The last marital domcile can impact personal jurisdiction analysis. In a Pennsylvania case, the parties married in Pennsylvania in April 2005, where they lived in rental housing. In December 2006, the couple moved to Wisconsin. They later separated in August 2007. The wife returned to Pennsylvania and filed for divorce, while the husband stayed in Wisconsin. The appellate court affirmed the trial court's ruling that it did not have personal jurisdiction over the wife.¹¹

In a Georgia case, the spouses spent part of the year in Georgia and part of the year elsewhere. When the husband filed for divorce in Georgia, the court ruled that it had personal jurisdiction over the wife, emphasizing that she had filed Georgia tax returns claiming to be a resident of Georgia.¹²

In a Mississippi case, a party did not live in Mississippi, but had frequent telephone conversations, texts and emails with a Mississippi resident. Because the cause of action related to these communications, the court held that Mississippi had personal jurisdiction over the non-resident.¹³

Some courts have held that a state can have personal jurisdiction over a spouse if that party, due to harassment and abuse of the other spouse, effectively forced that spouse to flee to another state.¹⁴

To establish "minimum contacts" that warrant the exercise of personal jurisdiction, the contacts must be more than sporadic. For example, in a Florida case the wife lived in Florida attending school and the husband lived and worked in Alabama. On weekends, one would visit the other. When the wife filed for divorce in Florida, the appellate court concluded the trial court lacked personal jurisdiction over the husband.¹⁵

In a Missouri case, the parties' marital domicile was Illinois. The husband owned a time share in Missouri and the parties sometimes visited there. When the parties separated, the husband had leased vehicles for the wife in Missouri and had helped her buy a condominium there (by signing the loan and making the down payment). The appellate court concluded that Missouri did not have personal jurisdiction over the husband because he had always been an Illinois resident, was employed in Illinois, and paid Illinois income taxes.¹⁶

In another Missouri case, the parties had lived in Texas during marriage. After they separated, the husband moved to Missouri with their children. The husband later filed for divorce, custody and child support in Missouri. The Missouri trial court ordered the wife to pay certain marital debts and to pay child support. The court of appeals reversed this order because the Missouri court did not have personal jurisdiction over the wife. The wife had never lived in Missouri and had only passed through Missouri a few times on trips to other states.¹⁷

A New York case involved two Americans who had married in China. The wife returned to the United States to attend school and obtain work experience. The husband sometimes visited the wife in New York. He spent a total of ninety-one days in New York, and he had not visited for five years when the wife initiated a New York divorce. The appellate court affirmed the ruling by the trial court that it did not have personal jurisdiction over the husband.¹⁸

A Massachusetts court reached a different conclusion involving similar facts. The wife moved from Virginia, the marital domicile, to Massachusetts to be near her daughter. The wife's lease was in the name of both spouses. The husband paid a substantial portion of the rent, and visited on holidays. The parties discussed purchasing a retirement home together in Massachusetts but never did. When the wife filed for divorce, the court found that the husband had committed acts in Massachusetts which gave rise to the divorce action, so the court had personal jurisdiction over the husband.¹⁹

A North Carolina court concluded that personal jurisdiction did not exist where the party had only made brief visits to the state.²⁰

Personal jurisdiction may also arise via "transient jurisdiction" as well as by minimum contacts.²¹ A Virginia court has held that personal jurisdiction over a spouse is not obtained when the spouse is served while in the state to appear at a custody hearing.²² In addition, personal jurisdiction may also be conferred by consent.²³

If a court attempts to order an obligor to pay support, and the court does not have personal jurisdiction over the obligor, that portion of the decree is not entitled to full faith and credit.²⁴

[2]—Jurisdiction to Divide Property

[a]—Property Within the State

If real or personal property is present in the forum when a divorce action is filed, under traditional jurisdiction rules the forum court may assert jurisdiction over the property, even if the owner of the property had no other contacts with the forum. The rule that existed prior to 1977 that quasi in rem and in rem jurisdiction over the property was possible, even if the owner did not have significant contacts with the forum,²⁵ is no longer always constitutional.²⁶ After Shaffer v. Heitner,²⁷ a court may adjudicate questions regarding the ownership of property only if there are sufficient contacts between the forum and the defendant and the controversy involved.²⁸ However, if property is located within the forum, courts normally conclude that there are sufficient contacts to adjudicate ownership.²⁹ As the Supreme Court stated:

"[W]hen claims to the property itself are the source of the underlying controversy between the plaintiff and the defendant, it would be unusual for the State where the property is located not to have jurisdiction. In such cases, the defendant's claim to property located in the State would normally indicate that he expected to benefit from the State's protection of his interest. The State's strong interests in assuring the marketability of property within its borders and in providing a procedure for peaceful resolution of disputes about the possession of that property would also support jurisdiction, as would the likelihood that important records and witnesses will be found in the State. The presence of property may also favor jurisdiction in cases, such as suits for injury suffered on the land of an absentee owner, where the defendant's ownership of the property is conceded but the cause of action is otherwise related to rights and duties growing out of that ownership."³⁰

So, a court may generally divide property in the forum without personal jurisdiction over both spouses.³¹

A Texas case illustrates a potential limit to the statement in the preceding paragraph. In this case, Minnesota was the marital domicile, but the husband moved to Texas with some personalty and filed for divorce. The Texas Supreme Court concluded that, because the wife had not consented to the husband's actions, and because the wife had no Texas contacts, it would be unfair for a Texas divorce court to divide the personalty brought to Texas by the husband.³²

Another similar Texas case is Mason v. Mason.³³ The couple lived in Virginia and separated, with the husband moving to Texas. The wife had no Texas contracts. The husband brought property with him from Virginia to Texas and continued to acquire property after moving there. The appellate court concluded that, based on Dawson-Austin (discussed in the preceding...