Divorce Jurisdiction

Terms:

In rem jurisdiction:
An action that is taken directly against the defendant’s property.

In personam jurisdiction:
Power which a court has over the defendant personally in contrast to the court’s power over the defendant’s interest in property.

Quasi in rem:
Proceedings which are not strictly and purely in rem, but are brought against the defendant personally, though the real object is to deal with particular property or subject property to the discharge of claims asserted.

Bilateral divorce:
When the court has jurisdiction over both parties in a divorce proceeding.

Ex parte divorce:
Divorce proceeding in which only one spouse participates or one in which the other spouse does not appear. The validity of such divorce depends upon the nature of the notice given to the absent spouse.

Collateral attack:
An attempt to impeach or overturn a judgment rendered in a judicial proceeding, made in a proceeding other than within the original action or an appeal from it.

Estoppel:
Estoppel is a bar or impediment which precludes allegation or denial of a certain fact or set of facts after a final adjudication of the matter in a court of law.

Res Judicata:
Rule that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action.

Comity:
The respect which sovereign nations render to the legal proceedings and judgments of other sovereign nations.

A divorce action seeks to terminate the marital status of the parties. The marital status is the “res” or thing which “exists,” and serves as a basis of jurisdiction in the state of the domicile of either party. As such, a state in which either spouse is domiciled has jurisdiction through its courts to terminate the marriage by granting a divorce decree.

Residency

All petitions for divorce are handled by state courts. A state has jurisdiction to grant a divorce where at least one spouse is domiciled in that state, and a minimum residency requirement is met. Statutes in nearly all states impose, as a condition upon the right to sue for divorce, requirements that either plaintiff or one of the parties has been a resident (domicile) of the state for a specified period, ranging from six weeks to two years.

Such requirements have been upheld by the U.S. Supreme Court. Specifically, this issue was discussed in Sosna v. Iowa, 419 U.S. 393, 95 S. Ct. 553, 42 L.Ed.2d 532 (1975). In Sosna, Iowa imposed a one year residency requirement before obtaining a divorce. The wife challenged the residency requirement, claiming that her intent to stay in the state should be enough. The court held that a state may validly impose a reasonable residency requirement in divorce actions because a state has a legitimate interest in not becoming a divorce mill.

In New York, pursuant to its Domestic Relations Law, the residency requirement is written in terms of “continuous residency”, because the state wants to ensure that a person filing is not a part-time resident. See N.Y. Dom. Rel. § 230. In defining "residency" most states use the term “domicile,” rather than “resident,” because a person can only have one domicile, but can have more than one residence. In New York, if a couple was married in New York, the statute requires the one year residency to be continuous. If the couple was married out of state, however, they must live in NY for two years in order to sue for divorce in New York.

A period of residence is jurisdictional—it is a necessary element needed for subject matter jurisdiction in a divorce action. Lack of subject matter jurisdiction may not be waived. Yet, it may be asserted at any stage of the proceeding and it may be the basis for collateral attack of the decree. See, e.g., Hartman v. Hartman, 89 Ill.App.3d 969, 412 N.E.2d 711 (1980).

In circumstances involving more than one state, the law of the state in which the plaintiff is domiciled at the time the divorce action is commenced determines the grounds available for the divorce. As long as a plaintiff is a resident of a state, the court can grant her a divorce regardless of whether there is personal jurisdiction over the defendant. Once a valid decree is obtained in one state’s court, that decree is valid in all other states, pursuant to the Full Faith and Credit Clause of the United States Constitution, which states:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Example: Susan and Robert are domiciled in a state (State A) where mental cruelty is not a ground for divorce. Susan moves to anther state (State B) where she establishes residence and sues for divorce from Robert on the ground of mental cruelty. Mental cruelty is a ground for divorce in State B. Susan may be granted the divorce since she is a bona fide resident of State B and has grounds for divorce. It is immaterial where the cause of action arose. See Rest. 2d, Conflict of Laws, § 285.

Res Judicata

A spouse who has had an opportunity to contest the jurisdiction of the court when suit for divorce is filed and does not do so, may not later collaterally attack the jurisdiction of the first court.

In Sherrer v. Sherrer, 334 U.S 343, 68 S. Ct. 1087, 92 L.Ed. 1429 (1948), the wife, domiciled in Massachusetts with her husband, went to Florida and sued for divorce. The Florida court granted her a divorce after finding that she was a resident. The husband appeared at the proceeding. The question of whether Florida was the wife’s domicile was not litigated in this action; the decree did state she was domiciled in Florida. Subsequently, her “ex-husband” sued her in Massachusetts, claiming the Florida divorce was invalid because the wife was not a Florida resident at the time of divorce.

The Court held that Full Faith and Credit Clause of the United States Constitution bars one who personally appeared at a divorce proceeding and was accorded the full opportunity to contest the jurisdictional issues in the original action from collaterally attacking the decree on jurisdictional grounds in the courts of a sister state. The defendant had consented to personal jurisdiction by his appearance in a Florida court. Furthermore, he had an opportunity to contest the issue of the Florida court’s jurisdiction to hear the case at that time; however, he neglected to do so.

Example: Edward and Francine are domiciled in Oregon. Francine goes to Washington, and after the requisite period needed to establish residence, files for divorce. Edward enters a general appearance and contests the divorce. Edward has an opportunity to raise the question of Francine’s domicile, but does not do so. A divorce is entered in Francine’s favor. Later in Oregon, Edward serves Francine and attacks the decree on the ground that Francine was not domiciled in Washington at the time of the divorce. The Oregon court dismisses Edward’s petition. When he entered a general appearance in Washington, he should have contested Francine’s domicile at that time. As such, that issue became res judicata when the decree was issued. Under the Full Faith and Credit Clause, a state must recognize the decree of another state where all the issues of the case are contested and decided or where there was full opportunity to do so. See, e.g., Coe v. Coe, 334 U.S. 378 (1948).

In Sherrer, full faith and credit turned on the doctrine of res judicata prevailing in the divorcing state (i.e. Florida). Specifically, if a divorce decree is immune to attack in that state on the ground that both spouses were personally before the court, then under Sherrer, it will be immune to attack in other states. In other words, one is only entitled to “one bite at the apple;” therefore, all issues should be raised during the original proceeding.

Example: Tony and Carmella have been having marital problems for awhile. One day Carmella decides to leave Tony and packs up her belongings and moves to Texas. Once she establishes residence, Carmella files for divorce. Although Tony received notice of the impending divorce, he does not appear in the proceeding. Instead, he files for divorce in New Jersey, where they lived together as a couple. Here, since Tony never appeared in the Texas proceeding, he might be able to succeed in his lawsuit against his wife.

Many parties can easily go to another state to obtain a no-fault divorce if the state has a short-term residency requirement. For example, Nevada only requires a six-week period to meet its residency requirement. Connecticut and New Jersey require a one-year period to establish residency.

Example: A husband wanted to avoid the drawn out process of getting a divorce in New York, where the couple lived. As an alternative, the husband went to Las Vegas (making sure to bring along his golf clubs) and stayed for six weeks—the period needed to establish residency. While there, the husband got an ex parte divorce. His wife decided to collaterally attack the divorce in New York and served him in Las Vegas. The court found that the husband’s six week residency was a sham. Of course, it did not help that he had brought along his golf clubs.

Ex Parte Divorce

In an ex parte divorce, a court has jurisdiction over only one party. The doctrine of divisible divorce allows a party to obtain an in rem ex parte divorce to terminate the marital relationship, while retaining the right to orders of support, custody and property. These aspects of divorce may be litigated at a later date because adjudicating these issues require personal jurisdiction over the person.

In Newport v. Newport, 219 Va. 48, 245 S.E.2d 134 (1978), the defendant contended that the ex parte divorce he obtained in Nevada precluded his wife (the plaintiff) from obtaining an alimony award in Virginia. The Nevada decree was silent as to property and support. The court held that an ex parte decree of divorce in one state does not necessarily preclude an assertion of property and support rights in another state. Personal jurisdiction was required to litigate property and support rights.

The U.S. Supreme Court’s current view regarding in rem jurisdiction is: “in order to justify an exercise of jurisdiction in rem, the basis for jurisdiction must be sufficient to justify exercising jurisdiction over the interests of persons in a thing.” See Shaffer v. Heater, 433 U.S. 186, 207; 97 S. Ct. 2569, 2581 (1977). This standard is commonly known as the amount of “minimum contacts” a person has with the forum state, as required under the Due Process Clause. This area of the law is quite extensively studied in a typical law school civil procedures course. “Minimum contacts” in a nutshell deals with someone having enough connection with a jurisdiction such that he or she is not surprised to be sued there.

In Kulko v. Superior Court, 436 U.S. 84 (1978), the U.S. Supreme Court denied California jurisdiction in a child support action when the father (a New York resident) allowed his daughter to visit her mother in California. The mere fact that the child lived in California was insufficient to extend personal jurisdiction over her father because the father lacked the requisite minimum contacts with the state. Conversely, someone’s transient presence in the forum state at the time of personal service is sufficient to exercise personal jurisdiction over the party. See, e.g., Burnham v. Superior Court of California, 495 U.S. 604 (1990).

Example: Mac and Jenna were divorced and had an agreement giving custody and support to Jenna. Later they modified the agreement to transfer custody, but not support, to Mac. Their child Timmy went to New York to live with his father. The defendant advanced a defense of lack of minimum contacts with the state. The court disagreed because, by modifying the agreement, (which put the child in New York); the defendant subjected himself to the court’s jurisdiction when he agreed to modify the agreement in a New York court.

Foreign Divorce

States recognize ex parte decrees from another state under the Full Faith and Credit Clause; however, no state recognizes ex parte decrees from a foreign country. Recognition of bilateral divorces that were granted in a foreign country is governed by notions of “comity” rather than the Full Faith and Credit Clause. See, e.g., Perrin v. Perrin, 408 F.2d 107 (3rd Cir. 1969).

In Perrin, the wife attacked the validity of a Mexican divorce, contending that neither she nor her husband was domiciled in Mexico at the time of the divorce. During the proceeding the wife appeared personally (representing to the Mexican court that she resided in Mexico) and the husband appeared by an attorney. Since the wife had procured the decree she could not now collaterally attack the validity of the Mexican divorce.

Foreign migratory divorces fall into three classes:

(1) Mexican mail-order divorces: These are not recognized in the United States as ending the marital relationship since they exhibit a complete absence of any of the usual bases for divorce jurisdiction. See, e.g., Cammarota v. Secretary of Health, Education and Welfare, 329 F.Supp. 1087 (N.D.N.Y. 1971).

(2) Ex parte divorces: These are divorces based solely on the plaintiff spouse’s physical presence in the divorcing nation, without his ever having become domiciled in that nation. The defendant spouse neither participated in the divorce proceeding, did not make an appearance in the proceeding, nor was personally subject to the jurisdiction of the divorcing court. Divorces of this kind are also generally not recognized by United States courts but may be immune from attack by virtue of the estoppel doctrine. See, e.g., Montemurro v. Immigration and Naturalization Service, 409 F.2d 832 (9th Cir. 1969).

(3) Domicile in Mexico: One or both spouses actually live in Mexico for a short period of time. If the time period is long enough to obtain a Mexican domicile, the divorce will be held valid in the United States.

Where the foreign nation divorce was not obtained out of a desire to evade the law of the parties’ home state, and is valid by the law of the country in which it was obtained, it certainly should be recognized in the United States.

Estoppel

Generally, a court’s judgment given without jurisdiction over the subject matter of the action is void and open to collateral attack, either by the parties to the original suit or by others whose interests may have been affected thereby. This rule goes beyond divorce decrees to apply to other kinds of decrees and judgments. The policy underlying this rule is that which demands finality in litigation after a person has had a chance to present his case.

The application of res judicata depends upon the conditions under which the divorce was granted and is really a function of the divorce decree itself. Estoppel is an equity principle dependent upon events which may have occurred after the divorce was granted or apart from the divorce action. It is not a function of the decree but a personal disability of the party attacking the decree. It is not a rule of jurisdiction. Therefore its application is not governed by the Full Faith and Credit Clause of the United States Constitution.

One who procures a void divorce or who uses a void divorce decree to his or her advantage by remarrying, is estopped from attacking that decree at a later time. A party will also be estopped from later attacking a divorce decree if the attack is inconsistent with the position taken at the time of the divorce, or the party upholding the divorce has relied upon the decree.

Example: Bill and Priscilla live in Connecticut. Bill becomes totally and permanently disabled. Priscilla procures a “paper Mexican divorce” through a Mexican court. She makes no appearance in Mexico and no service of process is made on Bill. Priscilla then marries Douglas. Upon Bill’s death, Priscilla claims part of the estate as Bill’s widow. The Mexican divorce is void; Bill and Priscilla were still married at Bill’s death. As such, Priscilla’s marriage to Douglas is considered bigamous. Yet, since Priscilla procured the Mexican divorce in order to remarry, she is now estopped to later claim that the divorce was valid for one purpose (remarriage) but invalid for another. Thus, the court denied Priscilla’s claim for any proceeds from Bill’s estate. See, e.g., Rediker v. Rediker, 221 P.2d 1 (Cal. 1950).

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