Few divorces are cut and dry, and no child custody case is ever the same. Divorce jurisdiction may play a very important role in your situation. Your divorce may be simple enough if you and your spouse live together with no children and few shared assets. But what if your spouse lives in another state? Another country? What if you share high-worth assets across the United States or even the world?
Considering the complexities of our modern lives, you could face multiple challenges in your divorce and child custody proceedings. One common issue that spouses and parents run into is jurisdiction for divorce and custody cases across state or country lines.
What do you do when you live in California but your soon-to-be-ex does not? How do you determine child custody when your co-parent lives hours away or in another time zone entirely?
Under the Full Faith and Credit Clause, every state has to respect the “public acts, records, and judicial proceedings of every other state.” So even if you got married in another state, California recognizes your marriage and can hear your divorce.
But first, you must establish jurisdiction over your spouse.
Jurisdiction is what gives a court the power and authority to make legally binding orders in a case. Without proper jurisdiction, you can’t bring a case to court.
Jurisdiction also determines which state laws apply to your case. Depending on the specifics of your situation, filing in one state may be more advantageous than another.
Your lawyer can help you file your case with the right court and establish jurisdiction over your spouse, wherever they may be.
Jurisdiction Requirements in Divorce and Custody Proceedings
You must establish two types of jurisdiction for your divorce or custody case:
- Subject matter jurisdiction is the court’s ability to hear certain types of cases, and
- Personal jurisdiction is the court’s ability to make legally binding decisions and orders related to a specific person.
In California, family courts have exclusive subject matter jurisdiction over divorces, child custody disputes, and legal separations. Other types of family matters may belong to a different branch of the court system. For example, the probate court handles adoptions and guardianships, while some child custody cases go through juvenile court.
Personal jurisdiction requires that:
- Your spouse can be served with process, and
- Your spouse has “minimum contacts” with the state of California.
The California family court must also have personal jurisdiction over your spouse. This is required to make binding legal or financial orders, such as:
- Alimony or other support payments
- Child custody determinations
- Divisions of assets or debts
The only exception for personal jurisdiction involves cases where children are under the protection of the state. In these custody cases, the court doesn’t need personal jurisdiction over the parents to make legally binding decisions.
In addition to subject matter jurisdiction and personal jurisdiction, you must also choose the proper venue to bring your divorce or custody case.
Residency Requirements for Venue in California
Venue refers to the specific county court where a case should be filed and processed. Proper venue ensures that the court location isn’t too inconvenient for either party.
In divorce cases, you can establish venue by meeting certain residency requirements. In order to have proper venue in California, at least you and/or your spouse must:
- Have been a resident of California for at least 6 months, and
- Reside in the county where the divorce petition is filed for at least 3 months.
If you’re filing for a legal separation in California instead of a divorce, you don’t have to meet any residency requirements. Your lawyer can help you decide which is the best option for you.
How to Establish Jurisdiction in Child Custody Cases
Determining child custody and visitation in divorce cases can be a difficult and emotional process for parents. This is especially true if there’s a long distance between you and your spouse. You want to remain close to your children but so does your ex. In addition, the government considers the interests and well-being of your children as paramount.
Generally, whenever child custody is an issue, venue is the county where the child lives.
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) governs how child custody cases are handled in California. Under this law, a California family court has the jurisdiction to make decisions related to child custody and visitation if:
- Your child has lived in California for at least 6 months,
- Your child is less than 6 months old but was born in California and has continued to live in the state after their birth, or
- The situation is an emergency, such as a child abduction incident.
Jurisdictional disputes in divorce cases can get complicated, especially when multiple states or countries are involved. Family disputes can take a lot out of you emotionally and mentally. Busy professionals can see their lives upended in ways they’d never imagined. In addition, your case may have unique challenges if you’re a high-earning or high-net worth individual.
Which State Gets Jurisdiction in a Divorce or Custody Case?
If your spouse lives in another state, both states could have jurisdiction over your case. So how do you decide where to file your case?
You might consider distance to be the most important factor. After all, it’s more convenient for you if you don’t have to travel far to get to the courthouse.
Although distance is important, it’s not the only factor to consider. Others include:
- How different laws and procedures between states could affect your divorce
- How California’s community property laws could affect the outcome of your divorce compared to laws in non-community property states
- Whether the other state decides child custody based on finances (such as New Jersey)
- Differences in how states calculate child and spousal support
Depending on the specifics of your case, the most advantageous jurisdiction might not be the most obvious one. This is where a seasoned lawyer’s expertise comes in.
In some cases, you and your spouse may agree on where to file. If you don’t agree, it’s important that you file for divorce and serve notice to your spouse first. Whoever files first gets to establish jurisdiction in the state they prefer.
Jurisdiction may sound like a dry procedural issue, but it can have a major effect on the outcome of your divorce or child custody case. This is especially true with cases across state lines, where distance could put one party at a disadvantage compared to the other.
Where child custody and visitation rights are at issue, the UCCJEA controls jurisdiction. Even when both parents agree, they cannot choose a court in California or any other state if that court would not actually have jurisdiction under the UCCJEA.
How to Change Jurisdiction or Venue
What if your spouse files before you and you want to change the jurisdiction they chose?
You may want to change jurisdiction for a number of reasons, such as:
- Inconvenient distance between your home and the courthouse
- Whether witnesses and evidence are available in a specific jurisdiction or venue
- Differences in law and procedure between states that could affect your case
- Different types of relief and remedies available in different states
If your spouse serves you with notice and you object to the jurisdiction or venue they chose, then you have a limited amount of time to file your objection with the court. You would do this with a Motion to Quash, which you must generally file within 30 days.
A Motion to Quash is a special appearance that allows you to argue your side with the court without admitting that the court has jurisdiction.
If you fail to file a Motion to Quash by the deadline, the case can move forward and you’ll lose your right to challenge the court’s jurisdiction.
What If More Than One Country Has Jurisdiction?
Similar to issues involving different states, jurisdiction might exist simultaneously in different countries. When you consider where to file for divorce or child custody, you must carefully weigh the advantages and disadvantages of the laws in each country.
If you live in California and you want to establish jurisdiction in this state, then you must be proactive. You have to file first and serve your spouse with notice before they serve you.
Special rules and procedures apply when serving notice across international borders. The Hague Service Convention provides the primary set of rules for completing service. However, these rules only apply to countries that have signed the treaty.
You can establish jurisdiction over a spouse in another country if:
- That country is covered under the Hague Service Convention, and
- You are able to complete proper service under the international rules.
If your spouse’s exact location is unknown, you may be able to complete the notice requirement by publication, usually through a local newspaper.
If you’re able to notify your spouse, then the California court of your choosing will have the ability to process your case regardless of what the other country’s court may do.
When you and your spouse live in different states or countries, jurisdiction is a complicated issue that must be handled properly early on in the case. The issue is further entangled when child custody and complex assets are on the line.
When most people consider divorce, they don’t usually think about jurisdiction. But picking the right jurisdiction can actually change the outcome of your case. On the other hand, if your spouse chooses the jurisdiction and you fail to challenge it, you could find yourself at a disadvantage throughout the rest of your divorce and custody proceedings.