Challenging State Jurisdiction

The issue of proper state jurisdiction may seem unimportant to someone facing a family law case, after all, the result will be the same in either state, won’t it? With assets, support, and custody at issue, why spend time and money fighting over which courthouse will be the site of the battle?

Perhaps you assume that the one who wins the race to the courthouse determines which state will decide your future, but that is not necessarily the case. Depending upon the state laws involved and the factual issues involved, the proper state jurisdiction can be critical to a satisfactory resolution of the case. The usual scenario is that one party leaves the state of residence and files in their new state. Occasionally, the parties will have homes in, or other connections with, two or more states. In either case, the proper state to take jurisdiction is determined by the applicable laws and rules of each state and federal constitutional standards for state jurisdiction over non-residents. However, unless an objection to jurisdiction is filed prior to any other filings, the party with the objection generally waives the objection allowing the case to proceed even though jurisdiction is technically improper.

Therefore, when a family law case (e.g. divorce, paternity, custody, adoption, marriage separation advice or support) is filed in a state other than the home state of the defendant/respondent, immediate consultation with experienced family law counsel in both states is warranted to determine the options and considerations as to which state should be the forum to resolve the issues. State laws vary as to the issues, admissible evidence, and decisional standards applicable in family law cases. It is important to consult with an experienced good divorce lawyer, as many states treat family law cases differently than other litigation in an effort to avoid the cases from being overly adversarial. Some states may apply less formal standards of evidence or looser rules and timetables for pleadings and case management. Conversely, states may also impose expedited timetables and special procedural rules to resolve custody and child support cases not applicable to other types of litigation. Family law case issues that may vary between states include whether the conduct of either party will have any bearing on property division or alimony determination, the types of formulas and considerations in setting alimony and child support, whether college expenses may be ordered to be paid by the parents, and the standards for determining child custody and visitation. The state rules on evidence can affect whether children may testify or participate in custody and visitation decisions, whether mental health records are admissible or psychological examinations can be required, and the degree of verification required for documentary evidence such as financial records and appraisals.

State laws and decisions may vary as to what factors, such as length of marriage, incomes of the parties, desires of the children, and involvement of extended family with the children, are considered in ruling on the various issues in family law cases. As any of these variations may determine the outcome of a given case, a careful comparison of how each state may resolve these factors is well worth the time and expense of retaining qualified divorce lawyers for men to advise on whether a challenge to jurisdiction could be beneficial. Challenges to jurisdiction are usually based upon the lack of a connection between the state and the party objecting. If a party has never had any connection with a state, such as a residence or birth of a child, the state generally will not have jurisdiction over that person.

Other objections may be that a family law case on the issues involved has been filed in another state or that the filing party has not satisfied the residency or other requirements of the state for filing litigation.However, lack of jurisdiction does not prevent the filing of a case, but only allows a party to have the case dismissed if warranted. The right to object to jurisdiction is generally lost if the party participates in the litigation prior to objecting. By entering into a temporary order to appease the opposing party, or in order to gain custody, visitation, property, or support from the other party, will give the state jurisdiction over both parties.

The first step when served with a family law suit filed in another state is to consult legal counsel, regardless of the desire to reach agreement or obtain immediate relief on important issues.Martial status is generally considered a personal right of each party such that one party may be allowed to terminate the marriage without requiring both parties to be before the court. State law may allow one party to file for a dissolution of the marriage upon meeting certain residency period requirements. While service upon the other party is required, the court may dissolve the marriage even if the opposing party does not participate or if there is no basis for jurisdiction over the other party. In such cases, the marriage can be dissolved without the court being able to resolve the property and alimony issues of the non-resident party. Child custody, visitation, and support cases involve special statutes and rules that permit a court of one state to address those issues in consultation with the court of the other state. Various statutes allow the courts of both states to coordinate resolving the jurisdictional issues in child custody, visitation, and child support cases by agreement of the judges. In addition, some states allow one parent to file for custody or child support without filing for divorce or other proceedings as an interim measure even if the state would not have jurisdiction over the other parent for other purposes.

When family law litigation is initiated in another state, a prompt review of the appropriateness of the state’s jurisdiction is essential prior to responding to the filing. The time period for objecting or exercising options in responding to the lawsuit may be days or weeks, depending upon the type of action filed. Immediate consultation with an experienced domestic litigation firm should be the first step in response to out of state litigation.

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