In any court case, your lawyer will need to decide whether the court has jurisdiction. It doesn’t matter if this is in a family part case or a civil case. Determining jurisdiction in family law cases, in particular custody or divorce cases, may be more complicated than in other situations.
Determining jurisdiction is particularly important in cases where spouses or parents no longer live in the same state or even within the same county in a state. Each state has its own laws regarding divorce and related concerns. If your spouse no longer lives in New Jersey, the regulations in their new state may differ significantly from those to which you are subject. Determining which state has jurisdiction will shape the outcome of your divorce.
Understanding Jurisdiction
Jurisdiction is both the power of a court to adjudicate cases and issue orders and the territory within which a court may properly exercise its power. The term has a dual meaning. When a court has jurisdiction, other courts typically cede the right to make decisions about the case in favor of the court with primary authority or proper jurisdiction.
There are several different types of jurisdiction. These include:
- In personam (personal) jurisdiction: if a person lives or maintains connections within its boundaries, or otherwise consents the court has the authority over that person.
- In rem jurisdiction: if a property is located within its area of authority, such as personal or real property involved in a divorce, the court has the authority to make orders concerning that property.
- Subject matter jurisdiction: this refers to the fact that specific courts are established to handle specific cases pertaining based on the subject of the case.
When cases involve parties in different states (or countries), multiple courts may have the right to decide the case under in rem and in personam rules. Different courts may also have the right to hear the case based on subject matter jurisdiction.
Determining Jurisdiction in Divorce Cases
While a person may consent to personal jurisdiction, they cannot consent to subject matter jurisdiction. If the parties in a divorce have children, it may make more sense to select the court that has jurisdiction over the children and allow that court to decide all other issues.
Every state has specific residency requirements that dictate whether a specific person falls within local jurisdiction for divorce proceedings. While the court may have jurisdiction over the children, it may not have jurisdiction over the divorce.
In New Jersey, a person must have lived in the state for one year immediately preceding the filing of a complaint for divorce (except in cases of adultery). However, for the court to make a child custody determination the children must have lived within the state for six months. Then there are additional rules that govern which county within the state is the proper venue for the case.
Assets acquired during a marriage are considered joint property unless a valid prenuptial or postnuptial agreement dictates otherwise and those joint or marital assets are subject to equitable distribution. If a couple has no children and no interest in spousal support, then they can file and the property can be distributed by the court, even if some property is located outside the state.
If there is alimony or spousal support, there can be complications with enforcement is the person who is to pay (the obligor) lives outside the state. The same may be true if there is a need to sell or divide property in another jurisdiction and the order from New Jersey may need to be registered or domesticated in the other state (or country). Although every state has a long-arm statute, permitting it to act against nonresidents, that only allows courts to exercise personal jurisdiction as long as the spouse consents, makes a general appearance in the state, or maintains minimum contacts with New Jersey. It will not assist in getting the property or funds located in another location.
Jurisdiction is Complicated and Requires Experienced Legal Counsel
Jurisdictional issues are complicated. If you are considering divorce in New Jersey, but you or your partner have not called the state home for at least a year, you will benefit from experienced legal guidance.
At LaBletta & Walters, LLC, our skilled attorneys are prepared to assist you with your divorce, regardless of how complex it may be. Schedule your consultation today to learn more about how we can help resolve jurisdictional questions in your divorce.