A reader, Cathy from California wondered if she could file for divorce in her state if her husband lives in New York state, or does she have to file her papers in New York? The answer for her, unfortunately, is that there is no easy and straightforward answer in the matter the jurisdiction of interstate divorce. It’s maybe yes, maybe no and maybe in both. It just depends on the facts of Cathy’s situation, the international divorce laws of California and the international divorce laws of New York. It revolves around jurisdiction – which state has jurisdiction to enter an enforceable order that covers the legal issues involved in her interstate divorce and which state has primary venue if both states could have jurisdiction in her interstate divorce case.
Jurisdiction in and interstate divorce is defined as “the power and authority that a court or a judge has to hear and determine a particular type of case and issue.” Personal jurisdiction and subject matter jurisdiction are the two types that most frequently come up in an interstate divorce case. A divorce court has to have personal jurisdiction over “the person” of each party to a lawsuit in order to enter an enforceable judgment. This means that each person must have been properly served notice of the pending lawsuit and, in some instances, must submit to the jurisdiction of the court by filing an entry of appearance in the court file.This is what is referred to as personal jurisdiction.
Subject matter jurisdiction, unlike personal jurisdiction, is the power of the court to enter an enforceable order regarding the issues in a divorce. Examples of issues are: child custody, disposition of certain types of property, child support, and spousal support. The court must also have the statutory authority to hear a family law case. This is subject matter jurisdiction.
Venue refers to which state court is the right one for holding a trial when more than one court has subject matter jurisdiction. A court may have jurisdiction without venue. But, it cannot have venue without jurisdiction.
Here’s another example of subject matter jurisdiction in an interstate divorce. Let’s say it was the case of Mickey and Minnie. They were married in Missouri, had a child in Missouri, then moved to Texas, subsequently got divorced in Texas, where Minnie got custody of their child and Mickey was ordered to pay her support. Then Minnie and their child returned to Missouri – with Mickey’s permission.
Several years later, when their child was a senior in high school, Minnie filed a motion to modify the Texas divorce judgment in the Missouri court asking the Missouri court to increase the amount of child support and to extend the date for termination of the support obligation– to comply with Missouri law instead of Texas law. Her ex-husband was served the Missouri papers and hired a Missouri lawyer to contest subject matter jurisdiction.
The Missouri court modified the Texas judgment – using Texas law – not Missouri law. The Missouri court used the power conferred upon it in accordance with the Uniform Interstate Family Support Act, a federal law, of which Missouri and Texas had each adopted its own version.
As you can see by these examples, interstate divorces can be convoluted processes, and having the proper legal counsel is essential. The outcome of an interstate divorce all depends upon the facts of each marriage, the laws of each state, the issues to be worked out in divorce court, the legal opinion you get from a lawyer about which state is more advantageous to your position, the state that is most likely to win any battle over jurisdiction and venue, your spouse’s position on any contested issues, and whether the possible outcome will be worth the risk and cost to you, your spouse, or to your combined estate.
Whether it’s a matter of personal jurisdiction, subject matter jurisdiction, venue, or other factors, legal help is essential.
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