When a court is said to have “jurisdiction” it means, in simple terms, that that court has the ability to make a lawful, binding and valid court order. Conversely, a court order made where there is a lack of jurisdiction cannot be enforced and is of no weight.
What does this mean to a family law litigant? A lot! Whether seeking an order regarding custody of minor children or division of property (especially a military pension) or support, jurisdiction is the crucial “first analysis” that must be performed.
Admittedly, in most cases jurisdictional problems do not arise. Both parties have been living in California for years, neither is in the military, the children have lived here for five years or more. But when a jurisdiction issue does arise, it must be dealt with immediately, for good or ill. There is no sense spending time and money only to obtain an invalid order. There are, essentially, two kinds of jurisdiction: in rem, meaning the thing (the “thing” in a divorce is the marriage itself), also known as “subject matter jurisdiction”, and in personum meaning, simply, jurisdiction over the person(s). Sometimes a court can have the first without the second or the second without the first. In those cases, some valid orders may issue but other areas may not be adjudicated.
Subject matter jurisdiction over a divorce is pretty straightforward: Has one party (even if not the party filing for divorce) been living in California for at least the last consecutive six months and in the county where filing for at least the last consecutive three months? If so, California has subject matter jurisdiction, meaning the ability to dissolve the marriage upon request. There are different residency requirements if filing for Legal Separation or Nullity (annulment).
But what if there is no personal jurisdiction over both parties? Wife lives here and files here. Husband lives in Texas. What can Wife accomplish here? Well, she can become single, but that’s about it. The California court cannot divide property or order him to pay her support (well, it could, but that would not be an enforceable order). On the other hand, if Husband in Texas files a response in California to Wife’s petition, without qualification, that is known as “making a general appearance” and California would then have personal jurisdiction over him for all purposes.
What about jurisdiction over child issues? Custody and visitation? Here it gets tricky. We are a mobile society and we do not want a “hodge-podge” of custody orders being issued from various states related to the same children. So, for jurisdictional questions on this issue, the various state courts will look to what, in California, is known as the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA). All 50 states have some version of this law. The law looks to where the children have been living over the preceding five years, and over the last six months, and whether or not there is a basis to assert “emergency jurisdiction” (if the children have been in the jurisdiction for less than six months, in most cases). We may be dealing with a “decree state” (where an order was previously made) and a “home state” (where the children have been living for a significant time since the order was made in that “decree state”). So, in our previous example, Wife is here and that Husband is in Texas with the children and has been for the last, say, three years. Wife files here and seeks an order that the children be moved to California and that she have custody, with visitation to Husband. Can she get a valid order? Probably not. She’ll most likely have to litigate this question in Texas. What if Wife has been here with children for last year, with Husband living in Texas? Wife files here for divorce and custody. Can she get a valid order? Probably yes, if limiting the issues to custody and visitation. A valid child support order? Probably not. But she could still get a support order in Texas, pursuant to Texas law and Texas’s computation of guideline child support.
And what about that military pension? Here’s another scenario: Wife is in the Navy and has been living in San Diego County with Husband for the last 10 years (we won’t worry about the “children issues” in this one). During that time the parties have acquired a house and property as well as an investment portfolio. And, of course, Wife has been earning time credit against her eventual 20-year Navy retirement [see our section on this site regarding division of defined benefit retirement plans]. Husband files for divorce in San Diego. Does the court have jurisdiction over ALL of the property to make a division of the property? Maybe not. The court will likely be able to validly and effectively divide everything, but there are some special “rules” related to the military pension. In order to divide that, it will have to be shown that Wife has been living here but not solely due to military assignment. She may claim on her LES that she is actually a resident of Texas or Florida or Nevada (all states, coincidentally, with no state income tax). Is that dispositive? Debate over? No. But time and effort will have to be expended to show that the court can and should assert jurisdiction over her and over the military pension for purposes of dividing the community interest just as would be done if it was not a military retirement. The husband in this case will have to demonstrate compliance with the jurisdictional criteria set out in federal legislation [10 USC 1408, known as FUSFSPA]. And, if he cannot? Does Husband lose his interest in the pension? Most likely, no. But it will have to be dealt with in another state, in another forum, in a different venue and in a different proceeding. This fascinating topic, including what’s known as a “Tucker response”, will be dealt with in more detail in a future article.
Matters can get even more complicated both in the area of personal jurisdiction and those “children issues” when there is a foreign country involved (as opposed to a “sister state”). Pleadings filed here and served upon a foreign citizen in his/her country is controlled by the Hague Convention protocol on service of pleadings. The U.S. is a signatory to the Hague Convention and its various protocols, as are a majority (but not all) countries. Mexico is a fairly recent signatory. Even the signatory countries may have adopted some Convention protocols, but not others, and then with specific modifications. Service of pleadings under the Hague Convention protocol is different here than it is in the United Kingdom and different there from what is required in Mexico. This is a very complex area (as is the Hague Convention protocol on child custody litigation between persons of different nations) and cannot be dealt with adequately in this article.
Jurisdiction and its various permutations may seem confusing, but need not be. Think in terms of the contact of a party (or the children) with this state (“this jurisdiction”) and the quality of that contact. One party may have never actually resided in California but has various businesses here and owns property. That may be sufficient to assert personal jurisdiction over that party.
And, of course, the parties can stipulate to personal jurisdiction (but not to subject matter jurisdiction).
As can be imagined, whole books, multiple volumes, treatises as well as law school courses and Law Review articles have been written just discussing various types of jurisdiction and the permutations of application of such to various facts situations. This article was intended to provide you, as a layperson, a general understanding of the vast importance of jurisdiction to all litigation and to Family Law litigation, in particular.