Which State Should A Divorce Be Filed In

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There are always trends in family law practice.  One trend that I am seeing in my practice is an uptick in cases that involve spouses living in different states.  The big question in these cases is which state should the divorce be filed in?  The unpublished opinion for the Vallo case out of San Bernardino County helps us to better understand the challenging legal question of personal jurisdiction.  The case involves multiple family law proceedings filed in Maryland, the District of Columbia, and San Bernardino County between 2010 and 2013.

Jurisdiction in a family law case involves three independent jurisdictional requirements:  jurisdiction over the subject matter; jurisdiction over the marriage; and personal jurisdiction over the parties.  (Muckle v. Superior Court (2002) 102 Cal.App.4th 218, 225; see County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1225.)

1.   The superior court has subject matter jurisdiction over marital dissolutions.  (Fam. Code, §§ 200, 2000 et seq.)  The scope of jurisdiction includes spousal support and attorney’s fees.  (Fam. Code, § 2010.)

2.   When there is a nonresident spouse or a preexisting out-of-state support order, a California court can exercise jurisdiction to establish, enforce or modify support orders only if consistent with the Uniform Interstate Family Support Act.  (UIFSA, Fam. Code, § 4900.)

3.   The exercise of personal jurisdiction is ultimately limited by substantive and procedural due process concerns.  The forum court must have an adequate basis for the exercise of personal jurisdiction.  (Burnham v. Superior Court of Cal. (1990) 495 U.S. 604, 609; County of San Diego v. Gorham, supra, 186 Cal.App.4th at p. 1227.)  Traditional notions of fair play and substantial justice permit the exercise of personal jurisdiction on the basis of either:  a) physical presence in the forum state when personally served with process, b) domicile in the forum state at the time suit is commenced, c) consent to the exercise of personal jurisdiction, or d) minimum contacts with the forum state.  (Burnham, at pp. 610-611; Muckle v. Superior Court, supra, 102 Cal.App.4th at p. 226.)

In the Vallo case husband had never been to California so the court decided that California had no personal jurisdiction over him, and a California divorce could not be pursued against him.

Please click her to read the original Vallo opinion.

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