9.4: Jurisdiction Over Divorce, Spousal Support, Property Division

A marriage can only be terminated by the state, and then only if the state has power over the marriage. Jurisdiction is the general power a court has to act and enter orders or judgments. There are three types of jurisdiction involved in family law matters: (1) subject-matter jurisdiction, (2) in-rem jurisdiction, and personal jurisdiction.

Definition: Terms Relating to Jurisdiction

Jurisdiction: The general power a court has to act and enter orders or judgments.

Subject-matter jurisdiction: The power of a court over certain types of disputes or legal actions.

In-rem jurisdiction: The power of a court over a thing that is located within the State.

Personal jurisdiction: The power of a court over a person, such that the court has the authority to make someone appear in the court and obey its orders.

Venue: The particular place, County, or Court in which the legal matter can/should be heard.

Subject-Matter jurisdiction

Subject-matter jurisdiction over divorce is exclusive to the states and is governed by state statutes. In many states, including Wisconsin, all trial courts within the state have subject-matter jurisdiction over all types of civil or criminal actions, including divorce actions. Challenges to a court’s subject-matter jurisdiction in divorce are rare.

In-Rem jurisdiction

In the context of divorce, the “thing” over which the court must have power is the marriage. A court will have in-rem jurisdiction as long as one of the parties is domiciled in the State. Because in-rem jurisdiction only requires that one of the parties be domiciled within the state, parties can easily demonstrate that the court has power to terminate their marriage. Remember, a domicile is a person’s permanent, “legal” home, and a person can have only one (Review how domicile is established and how domicile is different from residence in Chapter 5).

Example \(\PageIndex{1}\)

Anatoly lives in Arkansas. After he hears about a high-paying job in Oregon, he decides he no longer wants to live in Arkansas; he sells everything he owns, moves to Oregon, and signs a 1-year apartment lease. The cost of living is high and he decides that if he doesn’t find a job paying at least $100,000 by November, he makes plans to move to his cousin’s house in Arizona. In October Anatoly dies without having found steady employment. In this scenario, Anatoly was domiciled in Arkansas until he moved to Oregon. When he moved, he clearly intended to establish his domicile in Oregon. Although he had a potential future intent to leave Oregon and establish a domicile in Arizona, he had not yet taken definitive steps to do so when he died; in fact, his plan was not to do so until November, and then only if he didn’t have the type of employment he wanted. As a result, Anatoly was domiciled in Oregon when he died.

Personal jurisdiction

In the context of divorce, personal jurisdiction is required over both parties, and particularly the person who is being asked to pay something, or whose rights or duties are being impacted by the order. In addition, to enter orders regarding the parties’ income, property, or children, the court must have power over the parties being impacted by those orders. If there are challenges to a court’s power in a divorce action, therefore, they most often relate to personal jurisdiction.

There are several ways a court can obtain personal jurisdiction over the spouses in a divorce:

• Consent: If a party starts a divorce action by filing a petition for divorce, that party (the petitioner) is agreeing that the court has personal jurisdiction over them. If the other party (the respondent) is domiciled in the state and appears in court to contest any part of the divorce action, that constitutes an agreement by the respondent that the court has personal jurisdiction over them. If both parties sign and file a joint petition for divorce, then both parties have agreed to personal jurisdiction over themselves.
• Personal Service of Process: After the petitioner starts the divorce action, the respondent must be given official notice of the legal action by hand-delivery of the petition to the respondent while the respondent is within the state where the action was filed (the forum state). This is true even if the respondent is domiciled in a different state and is within the forum state only temporarily.
• Long-arm Jurisdiction: If the respondent has at least some contact with the forum state, personal jurisdiction can be acquired through official notice even if the respondent is not present in the forum state. Long arm jurisdiction requires that the respondent have minimum contacts with the forum state, such as:
  • Respondent was previously domiciled in the forum state
  • Respondent cohabited with the petitioner in the forum state (even if only temporarily)
  • Respondent has visited the forum state

Example \(\PageIndex{2}\)

Ted and Helen are married in Texas. After five years of a tumultuous marriage, Helen moves to California. Several months later, Helen filed a divorce action in California. Ted has never lived in nor visited California. The California court enters a judgment of divorce and orders Ted to pay spousal support (alimony) to Helen. In this scenario, because Helen is domiciled in California, the California court had the power to dissolve the marriage (in-rem jurisdiction). However, unless the California court had personal jurisdiction over Ted, the alimony order is not enforceable. If Ted has not lived in, visited, or done business in California, there are no minimum contacts with California sufficient for long-arm jurisdiction. Thus, the only way California could obtain personal jurisdiction over Ted is through his voluntary appearance in the court action and consent to the court’s personal jurisdiction.

Jurisdiction: Judgment of Divorce or Annulment

As you have seen, to enter a valid judgment of divorce terminating a marriage, a court only needs subject-matter jurisdiction over divorce actions and in-rem jurisdiction over the marriage. As long as one spouse is domiciled within the state, these requirements have been met.

Once it has been established that a particular state has jurisdiction, we must determine the proper venue for the divorce or annulment action. In most states, including Wisconsin, the venue is determined by the residence of the spouses. In Wisconsin, at least one of the spouses must have resided in the County for at least 30 days, and in the State of Wisconsin for at least 6 months, prior to starting the divorce or annulment action. Section 767.301, Wis. Stats.

If one of the spouses is not domiciled in the state in which a judgment of divorce is entered, that spouse might attempt to challenge the validity of the dissolution of the marriage. There are two types of attacks against the validity of a divorce judgment: a direct attack and a collateral attack.

Definition: Attacks Against Divorce Judgment

Direct attack: An attack raised in an appeal of the original divorce proceeding in the forum state.

Collateral attack: An attack raised in a different, later proceeding, sometimes in a different state.

Whether the spouse will be successful in attacking the portion of a divorce judgment that dissolves the marriage depends on the spouse’s role in the original proceeding.

A person will not be allowed to attack the validity of the judgment dissolving the marriage if that person

• Is the person who started the initial divorce action
• Appeared in court during the initial divorce action and did not raise jurisdictional challenges at that time
• Accepted other benefits (such as spousal support) based on the initial judgment
• Married someone else after entry of the initial judgment dissolving the person's first marriage, and is now seeking to invalidate the second marriage based on jurisdictional challenges to the dissolution of the person's first marriage
• Married someone who was previously divorced, and is now seeking to invalidate their marriage to that spouse by claiming the spouse’s initial judgment of divorce dissolving the spouse’s first marriage was invalid

This discussion applies only to jurisdiction over the portion of the judgment that dissolves the marriage. There are different requirements for the portions of the judgment ordering property division (discussed below), spousal support (discussed below), child custody and placement (discussed in later chapters), and child support (discussed in later chapters).

Order for Property Division or Spousal Support

There are two times when a jurisdictional analysis can become necessary. The first instance is when a party is starting a new legal action for divorce or annulment that seeks an initial judgment or order. The table below summarizes the types of jurisdiction necessary (in addition to subject-matter jurisdiction) for the different orders that can be a part of an action for divorce or annulment.

Initial Orders	Jurisdiction Required	How this Jurisdiction is Acquired
Property division	Personal jurisdiction over both spouses	Personal service of process (or) Consent to personal jurisdiction (or) Long-arm jurisdiction over out-of-state respondent
Spousal support	Personal jurisdiction over both spouses	Personal service of process (or) Consent to personal jurisdiction (or) Long-arm jurisdiction over out-of-state respondent

As long as the court entering the initial judgment of divorce had proper jurisdiction to enter these types of orders, the Full Faith and Credit Clause of the United States Constitution requires other states to enforce them.

Example \(\PageIndex{3}\)

The spouses marry in Virginia, where they are both domiciled. A few years later, Spouse A files for divorce in Virginia, and completes proper service of process on Spouse B in Virginia. A judgment of divorce is granted and Spouse B, over Spouse B’s objections, is ordered to pay spousal support to Spouse A. Spouse B moves to Nevada, establishes domicile there, and stops paying the ordered spousal support. Spouse A sues Spouse B in Nevada to enforce the Virginia spousal support order. In this scenario, Virginia had personal jurisdiction over Spouse B when the original order was entered; therefore, Nevada must enforce the spousal support order.

Example \(\PageIndex{4}\)

The spouses marry in Colorado, where they are both domiciled. A few years later, Spouse A moves to Florida and establishes domicile in Florida. Spouse B remains in Colorado. Spouse A files for divorce in Florida. Spouse B receives notice of the divorce action in the mail; however, Spouse A does not complete proper service of process on Spouse B and Spouse B does not appear in the Florida court. Spouse B has never been to Florida. The Florida court grants a judgment of divorce and orders Spouse B to pay spousal support to Spouse A. Spouse B refuses to pay spousal support. Spouse A files an action in Colorado to enforce the Florida spousal support order. In this scenario, the Florida court had in-rem jurisdiction to dissolve the marriage. However, there was no personal jurisdiction over Spouse B when the original order was entered; therefore, Colorado does not have to enforce the spousal support order.

Modification of Spousal Support Order

What if a party wants a court to modify an existing order for spousal support that was entered as part of a judgment for annulment or divorce? This is the second scenario requiring a jurisdictional analysis. If the original order was entered after a trial in a contested divorce, a court may be willing to consider a party's request for a modification. The party seeking the modification must demonstrate that the modifying court has power over the original order for spousal support. Courts in the same state as the court that entered the original order (the initiating state) have in-rem jurisdiction over the original order. Courts from other states will only have jurisdiction over the original order if the spouse seeking the modification is domiciled in the new state and takes steps to certify the order to the new state.

Regardless of where the modifying court is located, it must also have personal jurisdiction over the responding party (the one who is not seeking modification). Thus, a similar jurisdictional analysis to what we saw above becomes necessary.

If the order for spousal support was entered based on the parties’ separation agreement, the terms of that agreement may prevent its modification. If, in the agreement, the parties agreed to waive their right to seek modification of property division or spousal support, most courts will enforce that waiver unless to do so would be unconscionable under the “second look” doctrine.

Impact of Other Circumstances on Property Division or Spousal Support

Circumstances outside of attempts to enforce, attack, or modify spousal support or property division orders can also impact those orders. The impacts can differ depending on if they affect the payee (the recipient of property division or spousal support) or the payor (the person obligated to provide property or payment). The table below summarizes some of them.

Circumstance	Spousal Support	Property Division
Bankruptcy	No impact on payee or payor; spousal support order continues	Chapter 7: no impact on payor Chapter 13: payor's obligation can be discharged if all outstanding spousal and child support obligations have been met
Remarriage	Payee’s remarriage terminates spousal support payments Payor’s remarriage does not terminate spousal support payments	No impact on payee or payor; property division order continues
Cohabitation	Payee’s cohabitation may terminate spousal support payments Payor’s cohabitation does not terminate spousal support payments	No impact on payee or payor; property division order continues
Death	Payee’s death terminates spousal support payments Payor’s death terminates spousal support payments unless a separation agreement provides otherwise	No impact on payee or payor; property division order continues

Next, we will explore the differences between spousal support and property division.