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Jurisdictional Considerations in Divorce


Divorce practitioners need to remember that divorce itself can be divisible from those economic claims which are ancillary to divorce. Thus a court in one state may have jurisdiction to divorce the parties yet not have proper jurisdiction to effectuate those financial claims which are typically attached to the divorce. Jurisdiction over the divorce itself is much easier to satisfy than jurisdiction over the economic considerations ancillary to divorce. For instance, if a state wishes to divorce two individuals then all that state needs for jurisdictional purposes is for one of the two parties to be domiciled in that state's jurisdiction for the requisite period of time. On the other hand, if the court seeks to adjudicate economic claims between the parties then the court will need to have personal jurisdiction over the defendant.

If a state does not have personal jurisdiction over the defendant spouse and it thus only effectuates a "status divorce" then the defendant can still litigate the economic claims incident to the divorce in the defendant's home state. A defendant who wishes to litigate the economic issues in his or her own state must currently not be subject to personal jurisdiction of the other state but also must refrain from taking any action which would subject him or her to the other state's jurisdiction. The Plaintiff's chosen state court will not obtain personal jurisdiction over Defendant unless defendant is served in Plaintiff's state or otherwise enters an appearance in Plaintiff's state court.

Even without personal jurisdiction, Plaintiff may be able to obtain jurisdiction over Defendant for the purpose of litigating the economic claims of the divorce if Plaintiff can show that Defendant has "minimum contacts" with Plaintiff's home state. Minimum contacts sufficient in a divorce case must be more significant than those contacts which would be required in a commercial contract dispute for instance. The reason for this is that parties to a divorce action do not typically seek economic benefit by conducting their marital affairs in other states. To meet the long arm jurisdictional requirements of a state there must typically be multiple contacts by the Defendant. Those contacts may include such things as the parties having their marital residence, other real estate, place of employment, memberships in organizations as well as other factors in this state. Typically, more than just one of these factors will be required.

Thus, there will be times when a divorcee will have the option of pursuing divorce in more than one jurisdiction. The practitioner overseeing the divorce must thus make a determination as to what jurisdiction will most benefit practitioner's client. State laws differ with respect to many economic factors considered in divorce. For instance, prenuptial and postnuptial agreements can be treated far differently in differing jurisdictions. Some states are more likely to set aside an agreement if that agreement is far too one sided for one of the spouses leaving the other spouse in a state of complete disrepair. Other states are more likely to uphold those same "unconscionable" agreements assuming there is no finding of fraud or duress.

Alimony considerations must always be front and center in a practitioner's mind. Some states are far more liberal with their alimony laws than others. These states may award larger alimony awards for longer periods of time. These financial repercussions can be staggering. Also, it is important to look to see if either of the parties have professional degrees or licenses. Some states consider these professional licenses and degrees to be a marital asset, thus subject to division in divorce. Other states do not consider these licenses and degrees to be martial assets, however they do take these licenses and degrees into consideration in issuing potential alimony awards. Just as licenses and degrees differ in treatment so does by analogously the treatment of enhanced earning capacity. Some states will treat this enhanced earning capacity as a marital asset subject to division.

Speculative assets are also treated differently from jurisdiction to jurisdiction. Speculative assets include such things as pensions, stock options, and military retirement. The treatment as to whether these assets are in fact community property differs from jurisdiction to jurisdiction. Some jurisdictions consider such speculative assets to be "mere expectancies" and thus not community property subject to division. Within the jurisdictions which do consider this property to be community the techniques engaged for valuing these assets vary. Jurisdictional consideration as to treatment of speculative assets should always be a major concern of the practitioner.

Other, often smaller items, should also be considered. For instance interspousal gifts are treated differently across varying jurisdictions. In some jurisdictions that gift, from one spouse to the other during the marriage, is considered marital property while in other jurisdictions such gift is considered to be the separate property of the recipient spouse, not subject to division. If this gift is substantial, such as cars or jewelry, then jurisdictional considerations are warranted.

In these cases it is imperative that counsel diligently research the alternative forum's law. Counsel may want to contact counsel in the alternative jurisdiction for the purpose of conferencing on these issues.

Categories: Family Law