Jurisdiction and venue

• Author: Annette J. Szorosy/Stephanie Matalon
• Profession: General Magistrate/General Magistrate
• Pages: 327-366

JURISDICTION,

VENUE

6-1

CHAPTER 6

Jurisdiction and Venue

QUICK VIEW

Jurisdiction, because it relates to fundamental constitutional rights of due process, is an area with pitfalls to

the family lawyer. Year after year, the same jurisdictional issues arise, causing f‌inal judgments to be void and

awards entered unenforceable. Florida can act as to the marriage if one of the parties has been a resident for

six months prior to the f‌iling of the petition for dissolution of marriage. But it is the respondent’s connection to

Florida that dictates whether the court can do anything else.

If the respondent is outside of the state of Florida, then the family lawyer needs to determine the potential

bases of personal jurisdiction and plead them specif‌ically in the petition based on Chapter 48, Florida Stat-

utes. Failure to do so may result in a successful attack on the f‌inal judgment long after entry. Florida can act

on real property within the state of Florida, but if sale is the request, then partition must be pleaded strictly in

conformance with Chapter 64, Florida Statutes. If the client wants more than just a dissolution of marriage,

a Florida court’s jurisdiction to make a binding order against a respondent may determine whether the client

actually gets the relief sought.

When there are children of the marriage, jurisdiction is governed by the Uniform Child Custody Jurisdiction

and Enforcement Act (UCCJEA). The biggest pitfalls for the lawyer lie in when personal jurisdiction is required

and when it seems that two states may have jurisdiction.

TABLE OF CONTENTS

I. SUBJECTMATTER JURISDICTION: PROPER COURT

§6:01 Circuit Court

§6:02 County Court

§6:03 Family Divisions

§6:04 Application of Foreign Law and Enforcement of a Judgment or Order of a

Court of a Foreign Country

II. SUBJECTMATTER JURISDICTION FOR DISSOLUTION: RESIDENCE REQUIREMENT

A. General Points

§6:10 Def‌ined

§6:11 Six Months Residence by One Party Required for Dissolution

§6:12 Either Party May Be Resident

§6:13 No Subject-Matter Jurisdiction by Stipulation, Waiver, or Acquiescence

§6:14 Compare: No Residence Requirement for Separate Maintenance Action

§6:15 Compare: No Residence Requirement for Domestic Violence Actions

§6:16 Compare: No Residence Requirement for Parental Responsibility Actions

JURISDICTION,

VENUE

Florida Family Law and Practice 6-2

B. Establishing Residence

§6:30 Def‌inition of Residence

§6:31 Domicile Distinguished

§6:32 Burden of Proof and Corroboration of Residence

§6:33 Actual Presence During Six-Month Period Is Not Required

§6:34 When Petitioner Moves From Florida After Filing

§6:35 Residence Facts Point to Two States

§6:36 Military Service

§6:37 Foreign Citizens

C. Attacking Residence

§6:50 Options for Raising

§6:51 Motion Papers

§6:52 Evidentiary Hearing Required on Motions to Dismiss

§6:53 Compare: Abatement of Florida Action

III. IN REM JURISDICTION TO DISSOLVE MARRIAGE AND DIVIDE PROPERTY IN FLORIDA

A. Dissolution

§6:60 In Rem Jurisdiction Over Marriage

§6:61 Death of Party Before Final Judgment

B. Distribution of Property Located in Florida

§6:70 In Rem Jurisdiction Required for Awards of Florida Property

§6:71 Jurisdiction Over Florida Property Based on Constructive Service

§6:72 Jurisdiction for Sale of Property Requires Partition Count

§6:73 Compare: Property Located Outside Florida

§6:74 Compare: Division of Military Retirement Benef‌its

§6:75 Property Cannot Be Adjudicated in Separate Maintenance Action

IV. PERSONAL JURISDICTION: SUPPORT AND OTHER

ORDERS ENFORCEABLE AGAINST RESPONDENT

A. General Points

§6:90 When Personal Jurisdiction Is Necessary

§6:91 Over Petitioner

§6:92 Over Resident Respondent

B. Nonresident Respondent

§6:100 Methods for Obtaining Personal Jurisdiction

§6:101 Personal Service Upon Nonresident Within Florida

§6:102 Consent

§6:103 Long- Arm Jurisdiction Over Nonresident Respondent

§6:104 Marital Domicile

§6:105 Florida Residence “Proximately Preceding Commencement”

§6:106 One Spouse’s Residence Does Not Necessarily Follow Other Spouse’s Residence

§6:107 Part y in Military

§6:108 Petition Must Contain Long- Arm Allegations

§6:109 Additional Acts Conferring Long- Arm Jurisdiction

C. Contesting Long-Arm Jurisdiction

§6:120 How to Raise

§6:121 Special Appearance No Longer Required

§6:122 Waiver by Seeking Aff‌irmative Relief

§6:123 Motion for Change of Venue as Request for Aff‌irmative Relief

§6:124 Default Judgment Entered Without Personal Jurisdiction

JURISDICTION,

VENUE

6-3 Jurisdiction and Venue

V. JURISDICTION FOR CUSTODY DETERMINATIONS: UNIFORM CHILD

CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA)

A. Overview

§6:130 Jurisdiction in Interstate Custody Matters Governed by UCCJEA

§6:131 Purposes of UCCJEA

§6:132 Applicable Proceedings

§6:133 International Application

§6:134 Application to Indian Tribes

B. Personal Jurisdiction Over Parents

§6:140 Personal Jurisdiction Over Parents Not Required for Custody Determination

§6:141 Participation in Custody Proceeding Not Basis for Personal Jurisdiction in Other Proceedings

§6:142 Ef fect of Personal Jurisdiction Over Parent

§6:143 Personal Jurisdiction Required for Child Support Issues

C. Initial Custody Determinations

§6:150 Grounds

§6:151 Priorit y of Home State

§6:152 Home State Def‌ined

§6:153 Other Bases for Subject-Mat ter Jurisdiction in Initial Child Custody Determinations

D. Emergency UCCJEA Action

§6:160 Requirements for Emergency Jurisdiction

§6:161 Jurisdiction Is Temporary

§6:162 Immediate Communication Bet ween Courts

§6:163 Limitations on Order: No Previous Determination or Custody Proceeding

§6:164 Limitations on Order: Previous Determination or Custody Proceeding

E. Jurisdiction to Modify Child Custody Determination

§6:170 Modif‌ication of Child Custody Determination of Cour t of Another State

§6:171 Exclusive, Continuing Jurisdiction

F. UCCJEA Aff‌idavit

§6:180 Mandator y Filing

§6:181 Mandator y Supplementation of Information

G. Communication Between Courts

§6:190 Mandator y Communication

§6:191 Permissive Communication

§6:192 Participation by Parties Mandated

§6:193 Cooperation Between Cour ts and Preservation of Records

H. Notice

§6:200 Notice Is Required

§6:201 How Notice Is to Be Given

§6:202 Joinder of Part y and Right to Intervene

§6:203 Service

§6:204 Binding Ef fect of Orders Based on Notice and Service

I. Appearance of Parties and Taking of Testimony

§6:210 Appearance by Party and Child Who Are Present in Florida

§6:211 Appearance in Person by Party and Child Who Are Outside Florida

§6:212 Safet y of Child and Person Ordered to Appear

§6:213 Payment of Travel and Other Expenses to Appear

§6:214 Testimony From Party and Witnesses Who Are Outside Florida

§6:215 Deposition or Testimony From Nonresidents by Telephone or Other Electronic Means

J. When Florida Courts May Decline Jurisdiction Under UCCJEA

1. Prior Custody Proceeding Pending in Another State

§6:220 Priorit y of Prior Proceedings

§6:221 Florida Cour t Must Stay and Communicate With Other Court

§6:222 Florida Cour t Must Dismiss When Not More Convenient Forum