Divorce Jurisdiction

Question 1

what jurisdictional rules apply to divorce?

Answer 1

1. state has jurisdiction to dissolve a marriage based on petitioner’s domicile in the forum state
2. A states’ domiciliary requirements confer SMJ over the marriage
3. PJ over defendant is not required to terminate a marriage (petitioner must still have jurisdiction)
   a. BUT notice to defendant is necessary
   b. AND notice must comply with Due Process

Question 2

durational residency

Answer 2

a spouse to reside in state for a designated period of time
1. Usually 6 weeks – 1 year
2. Varies by state

-durational requirements for filing a divorce are constitutional

Question 3

Domiciliary requirement

Answer 3

physical presence plus intent to remain permanently
1. Note: some states say durational residency and domiciliary mean the same thing in divorce context (although not in other contexts)
-determination of domicile may be collaterally attacked (that is, other state may determine for itself bona fides of petitioner’s assertion of domicile)

Question 3

ex parte (unilateral divorce)

Answer 3

– court has person jurisdiction over only one spouse

Question 4

bi-lateral divorce

Answer 4

court has personal jurisdiction over both spouses

Question 5

divisible divorce

Answer 5

court has jurisdiction only over marital status, so therefore, court may not determine support and property rights of absent spouse
1. Can grant the divorce but cannot split the property

Question 6

what are the residency rules for divorce in FL

Answer 6

must reside 6 months in the state before the filing of the petition.

Question 7

Does federal jurisdiction extend to divorce context if diversity-of-citizenship requirement is met?

Answer 7

Domestic relations exception to diversity jdx divests federal courts of the power to issue decrees in divorce, alimony, and child custody matters.
Note: Domestic relations exception only covers cases involving divorce, alimony, or child custody decree; Domestically related tort claims are not barred in Federal Court

Question 8

personal jdx in FL

Answer 8

Personal jurisdiction is required to resolve alimony, child support, or division of property.
*Long Arm Statute: (Nonresident lived in Florida at one point)–Personal jurisdiction is typically established over the spouse residing outside of Florida if Florida was the last place the marriage was intact or if the nonresident spouse lived in Florida prior to the divorce case being filed.
*Minimum Contacts: (Nonresident did not live in Florida)–Court must determine if a party had sufficient minimum contacts with Florida to give the Florida courts jurisdiction over him or her.
*Personal jurisdiction can be waived (unlike subject matter jurisdiction).