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Jurisdictional Disputes in Divorce

So-called jurisdictional disputes occur when something or someone vital to the court case is in another state (jurisdiction). Jurisdictional disputes arise from an attempted assertion of power by that other state over them (dispute). Because the power of your state court almost always stops at the state line, another state may properly issue an order in conflict with yours. You’ll usually need another professional to get the job done right.

A somewhat similar appearing problem occurs if you and your spouse file in different counties within the same state. This is not a jurisdictional dispute. Your attorney resolves this, although another attorney may be needed to appear in the distant county until one court is selected. The court where the spouse who served the other first filed the case has preference, provided the requirements were met for filing there in the first place.

These jurisdictional disputes are complex matters in a contested proceeding. The point here is to make you aware of them. Handling child custody disputes under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a recognized subspecialty. Further information on the UCCJEA is given in Chapter Twelve.

Jurisdictional disputes generally occur in one of three ways. First, you may have joint property in another state. Second, your spouse may live in another state. Third, your spouse may have taken your children to another state.

If you and your spouse agree in writing which court should decide the issue, you have no jurisdictional dispute. You have only an unresolved problem, which the court you’ve agreed upon will decide if it finds it has the legal basis to do so.

Property in another state is the most straightforward situation. One approach is to agree to include the property in your home state action and be bound by the result. If your spouse won’t agree and the out-of-state property is at risk, you must act quickly to protect your interest.

Let’s look first at personal property. A California court assumes power over personal property wherever located. Whether or not your state asserts this broad power, you are advised to act to protect all valuable out-of-state personal property to make sure that it’s still there when it’s time to hand it out.

Direct methods are often the best. If you can remove the property yourself, or have someone do it, transfer it to a place of safekeeping in your home state. Inform your spouse in writing you are holding this until you have an agreement or court order. If the direct approach isn’t available, have an attorney in the state where your property is located obtain a court order to preserve and protect all valuable property such as stocks, bonds and jewelry. Simply stating this is joint property included in a pending divorce proceeding, and requesting it be held until either a joint written request or court order is received, may be adequate.

Your home-state court will distribute the personal property at the end of your divorce action—if you ask! A certified copy of your judgment should be sufficient for your attorney in the distant state to carry out the order, asking the court there to give full faith and credit to the California order, fairly obtained.

Real property is always subject to the jurisdiction and laws of the state where located. You’ll need a lawyer in the state in which the real property is located to work with your lawyer here and to file an appropriate action there if your interest in the land is threatened. Your lawyer here will coordinate this with your home-state action. You’ll probably let the action in the distant state lie idle, once the property is protected, until the home-state action is concluded. Your spouse may have other thoughts, and is entitled to fight you in the other state where the real property is located. Some courts will award the property in the distant state to the uncooperative spouse, and something of equal value to the other spouse, to help discourage two lawsuits going to trial, where one will do.

The second type of jurisdictional dispute arises when your spouse lives in another state. You may have to fight there, because a person has the right to be sued where he or she lives. You must file there if your spouse stays there. If you wait, your spouse must file in your state! Your spouse could sue you in the distant state only if you had “sufficient contacts” (a legal term) with it, or you could sue your spouse in your state if there were sufficient contacts with it. A small change in the facts makes a big difference.

Kirsten and her son had lived here for two years. Walter, husband and father, remained two thousand miles away. Kirsten’s case was one of those in which the husband encourages the wife to go on to California while he stays behind to wrap things up. In many such unfortunate cases the husband never came, so the divorce was filed where the husband lived. Our court has no power over a man whose only link with California is his wife’s presence, other than to terminate the marriage based on the wife’s presence.

Walter hadn’t stayed home, entirely. He’d been here several times, taken and passed a professional examination entitling him to practice in California and had applied for work. We filed here based on his professional license. We had Walter served in his state with the California court papers. When our attempts to negotiate showed he was unreasonable, we warned his attorney that we would proceed, with or without him. Walter filed for divorce in his state, and served Kirsten. We informed Walter we would seek judgment here. We did, and the California court was satisfied that Walter had “sufficient contacts” with California. We personally served Walter with the California judgment.

We then had judgment entered in Walter’s state on the California judgment so that we could enforce it there. Walter’s state had the right to examine the basis for the judgment, and decided that California did not have “sufficient contacts.” We appealed that ruling, unsuccessfully. Kirsten now had to litigate the divorce in Walter’s state, losing the considerable advantage she had here.

This problem of jurisdiction over the person will be met if you can serve your spouse with your summons and petition in your state, unless you trick your spouse into coming into your state or your spouse is deemed legally not present. Evaluate the situation in advance, using an expert consultant as is usually necessary, to ensure that your victory where you fight the battle will stand up.

Even more difficult is the third problem when two states both assert jurisdiction over your children. Unlike the jurisdictional problems above, the choice here must be made between states which each have a valid basis for making a custody order. Retain a specialist in this area as soon as a problem is suspected.

How do you first know you have a problem? Your children are gone! However, the children may have been taken legally. The jurisdictional problem emerges when using your custody order you try to have your children returned to you, after being found in another state. Your spouse then claims custody rights to your children, which he or she has taken, relying upon the custody order issued by the state where he or she is now living with the children. The custody order issued by your state conflicts with the custody order issued by your spouse’s state. Your children are there, not here. Your spouse took the children to another state and got just the order he or she wanted.

If this happens to you, you need the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which is designed to deal with this problem. Overwhelmingly endorsed by the states, it also applies internationally. It is the exclusive means for handling child custody jurisdictional disputes.

Briefly, the UCCJEA creates the concept of "home state" for your children. Your children retain their existing home state until they have lived in a new state for six months. This alone solves most of the grab-and-run situations.

Roughly, the two involved states are required to communicate with each other, agree on the approach to be followed and rule which custody order prevails. If your custody order was validly obtained, was in place first, and you moved quickly to protect your children and yourself, you will end up with your children. As an example, the first custody order is given preference under the UCCJEA. A broader explanation of UCCJEA is presented in Chapter Twelve, Child Custody Disputes.