t is no secret that some divorces can be complex. But before a court decides the typical divorce issues such as alimony, child support, and an equitable division of the marital estate, a court must have jurisdiction to enter these orders. “Jurisdiction” refers to the power or ability to decide certain issues (sometimes called “subject matter jurisdiction”) and the ability to enter orders that can be enforced against the parties (sometimes referred to as “personal jurisdiction”). State courts are often referred to as courts of “general jurisdiction,” meaning that they have the ability to hear a wide variety of cases like divorce cases and can decide issues such as alimony and property division. Nevertheless, if a court lacks either type of jurisdiction, it may not be able to enter orders. Even if the parties would want a Florida court to decide divorce issues, a Florida court that lacks jurisdiction (especially subject matter jurisdiction) can decline to hear the case.
In the majority of Florida divorce cases, jurisdiction is not an issue. But where the spouses have only recently moved to Florida, where one spouse has left Florida and gone to live in another state, or where the spouses have property located outside of Florida, jurisdictional issues can arise. Experienced divorce attorneys can help the parties successfully navigate these issues.
General Jurisdictional Requirements for Florida Divorces
Florida statutes describe the situations under which a Florida court can hear a particular divorce case. In general, so long as one of the divorcing spouses has lived in Florida for at least six months prior to the filing of the divorce petition a Florida court can exercise jurisdiction and hear the case. It often matters very little where the parties were married or where the parties spent the most of their time as a married couple.
Many other states have statutes and jurisdiction requirements similar to Florida. Therefore, it is possible for more than one state to have the ability to hear a divorce action between two spouses. For instance, suppose that Marco and Emily were married and living in Florida for several years. After several years, problems develop in the marriage. The two of them decide that it is best they should separate for a period of time while they consider what to do next. Marco and Emily jointly decide that it would be best that Marco returns North Carolina and lives with his family for the next few weeks. But suppose further that a “few weeks” turns into six months. In this case, Emily can file for divorce in Florida, even though Marco is no longer living in Florida and has not lived in Florida for several months. But it is also true that Marco can file for divorce in North Carolina, even though Emily has never lived in North Carolina.
Jurisdiction to Order Alimony
Unlike the jurisdictional requirements to hear a divorce petition, the jurisdictional requirements necessary for a court to order one spouse to pay the other any amount of spousal support are more stringent. A Florida court cannot order one spouse to pay alimony to the other spouse if the other spouse has never established any sort of contact with Florida. For instance, if Marco and Emily spent their entire marriage living apart and Marco never visited Emily in Florida, never conducted any business in Florida, or never established some “minimum contacts” with Florida, then Florida cannot order Marco to pay Emily any alimony. (Note, though, that nothing would stop Emily from filing for divorce and seeking alimony in North Carolina, if that is where Marco is living. Or Emily can file for divorce in Florida and not ask for alimony.)
Jurisdiction Over Property Removed from the State
One party may attempt to protect themselves or property to which they feel entitled by removing the property from Florida and relocating with the property in a different state. However, if the property that was removed is considered “marital property,” Florida courts can continue to exercise jurisdiction and control over the property. Generally, “marital property” consists of all property that one or both of the parties acquired during the course of the marriage. This can include real estate, cars, clothing, and other tangible and intangible things.
Suppose, for example, that Erin and Michael are married and reside in Florida. While they are married, the two of them acquire quite a bit of property – including certain collectible cars and rare coins. Michael pays for these cars and coins out of his paychecks; in fact, Eric did not contribute at all to the acquisition of the cars or coins. When marital difficulties develop, Michael relocates the cars and coins out-of-state, thinking that this will prevent the court from making any orders concerning the property once a divorce is filed. Unfortunately for Michael, the court is likely to consider the cars and coins to be marital property. This means that the court can consider these assets in making a division of property as well as other financial-related decisions.
What Should I Do if I Am Served with an Out-of-State Summons?
While a court cannot proceed with a case if it does not have jurisdiction over the subject matter of the case (for instance, a federal bankruptcy court cannot hear a divorce case), the same is not necessarily true if a court lacks personal jurisdiction. If a party is not careful with what he or she does when he or she receives a summons from another state, he or she may unwittingly subject him- or herself to the foreign court’s jurisdiction. Things such as filing an answer to the divorce petition or even showing up in court without entering a special appearance can result in that party being found to have waived any objection he or she might otherwise have had to the court’s jurisdiction over his or her person.
The first thing a person ought to do after receiving a summons indicating that a divorce petition has been filed against him or her in another state is to speak with an experienced divorce attorney in both the state in which the divorce petition was filed as well as the state in which the person is living. The individual will want to make sure that the attorneys he or she speaks with are experienced in handling jurisdictional issues. Depending on the facts of the parties’ marriage and separation, and depending on whether the case involves property division issues, alimony issues, and/or child custody and support issues, an experienced divorce attorney may be able to argue that the matter should be heard in one state and not the other. In some cases, such an investigation may result in the dismissal of the divorce petition.
In speaking with attorneys, a party may wish to consider the benefits and drawbacks of litigating the divorce action in one state over another. Perhaps the out-of-state court is more familiar with a party’s business and would divide the marital estate more equitably than a court unfamiliar with the assets and liabilities of the business. Or perhaps a party may wish for a new court and judge to hear a custody argument as opposed to a judge who is familiar with that party’s past “bad behavior.”
A party served with an out-of-state summons may also want to consider entering a special appearance. A special appearance allows a party to appear before an out-of-state court for the sole purpose of arguing jurisdictional issues. A special appearance is often necessary in these situations because simply appearing before a court without entering a “special appearance” can result in a party waiving the ability to challenge the court’s personal jurisdiction. Entering a “special appearance” without the assistance of an attorney can be risky – if the proper procedure is not followed, then the “special appearance” will not be granted and the party attempting the special appearance will not obtain the benefits of this maneuver.
A special appearance is usually also accompanied by the near-simultaneous filing of a motion to dismiss the divorce petition filed in the out-of-state court and the filing of a new divorce petition (or other similar pleadings) in the party’s home state. In most cases, this requires the assistance of attorneys in both of the states.
Jurisdictional issues have the potential to wreak havoc on a divorce. While it is a basic, essential element in any divorce, it is sometimes easy for both the parties and their attorneys to forget to determine what courts have jurisdiction. Jurisdiction in this context refers to the court’s power to hear a certain type of case (often referred to as “subject matter jurisdiction”) and enter orders that can be enforced against the parties (called “personal jurisdiction”). While a court cannot enter orders in a case if it does not have subject matter jurisdiction and personal jurisdiction, a party that is not careful may end up allowing a court to enter orders against him or her even if the court would not otherwise have personal jurisdiction. (Note that a court that lacks subject matter jurisdiction cannot hear a case under any circumstances, even if the parties agree to waive the issue. For instance, a probate court or small claims court can never hear a divorce case, even if the parties agree to allow the court to hear the case.)
In general, in order for a Florida court to exercise jurisdiction over a divorce action at least one of the parties must have resided in Florida for at least six months prior to the filing of a divorce petition. It does not matter where the parties were married or even what state they spent the most time as a married couple. Many states have statutes similar to Florida, meaning that a divorce petition can be filed in more than one state if the parties have been living separately. A decision as to where to file a divorce petition can be influenced based on convenience (i.e., what court is closest to the filing party and important evidence) as well as what state’s law may be more favorable to one party or the other.
There are other jurisdictional requirements depending on what the court is asked to do. For instance, if a party seeks alimony from the other, it is a jurisdictional requirement that the party from whom alimony is sought must have had some contact with the state whose court is asked to order alimony. For instance, in Marco and Emily’s case, if Michael and Emily have always lived apart as a married couple and Marco has never set foot in Florida (or ever conducted any business with Florida), a Florida court does not have the requisite jurisdiction to order Marco to pay spousal support to Emily – regardless of Marco’s ability to pay or Emily’s need for the support.
A court’s jurisdiction over marital property is much broader. All property that belongs to a couple’s marital estate – in other words, all property that the parties acquired during the marriage – can be affected by a court’s order, regardless of where that property is located. A party’s attempts to “protect” certain items of marital property by removing them from the state are usually ineffective at protecting these items from the court’s powers to divide the marital estate. In some instances, a party’s attempts to “protect” marital property can be seen as attempts to hide assets from the court, and can result in sanctions.
If a party is served with a summons from an out-of-state court, it is important to retain experienced attorneys familiar with jurisdictional issues in both the party’s own state as well as the state from where the summons was issued. A party can challenge a court’s jurisdiction over their person, but only if done in the proper manner and according to that state’s laws. If a party is not careful, he or she may unwittingly waive any challenges to personal jurisdiction and subject him- or herself to the power of the out-of-state court.