Each state has its own laws regarding who is eligible to file for divorce and jurisdiction for such cases. In Georgia, for example, there are four elements which comprise jurisdictional rules in divorce actions:
- subject-matter jurisdiction
- personal jurisdiction
All of the four above listed elements must be taken into consideration and satisfied before you file a divorce petition. Otherwise, your case can be dismissed for lack of jurisdiction. Below are a few things you should be aware of before filing for divorce.
Superior courts can dismiss your divorce case for lack of jurisdiction or improper venue and subject matter jurisdiction cannot be waived.
Subject matter jurisdiction is the power of a court to hear a particular matter, whereas personal jurisdiction is the power of the court to enter a judgment against a particular defendant. Venue refers to the proper county within the state to hear a particular case. In Georgia, the superior courts have “exclusive jurisdiction” to hear all domestic relations matters including divorce, alimony, child support and child custody. A Georgia superior court can hear and grant a divorce only if the plaintiff/petitioner (the person filing for divorce) has been a “bona fide resident” of Georgia for at least six (6) months before the filing of a divorce action. O.C.G.A § 19-5-2. It is important to remember that although the defendant/respondent can waive either lack of personal jurisdiction or improper venue defense, he or she cannot waive subject matter jurisdiction. When the superior court enters a judgment where it does not have subject matter jurisdiction, such judgment is legally void and the void judgment will be reversed. [Darden v. Ravan, 232 Ga. 756, 758 (1974)] Parties cannot agree to confer subject matter jurisdiction on a court that did not have the jurisdiction in the first place. To satisfy the subject-matter requirement under Georgia law, the plaintiff / petitioner must show that he or she has been a “bona fide resident” of the state for at least six (6) months before the date of filing divorce application. Once the subject matter requirement is met, a Georgia superior court does not have the discretion to decline jurisdiction over granting a divorce. [Patterson v. Patterson, 271 Ga. 306, 307 (1999)]
If children are involved the Uniform Child Custody Jurisdiction and Enforcement Act applies.
Georgia adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) in 2001. Accordingly, jurisdiction over child-custody disputes between the parent / spouses who are residents of different states must be separately established under the UCCJEA. A Georgia superior court may exercise jurisdiction if: (a) Georgia was the child’s home state for at least six (6) months preceding the filing of the action or has been the child’s home state and at least one parent remains a resident of Georgia, (b) no other state qualifies as the child’s home state and where the child and at least one parent have significant contacts with Georgia, (c) the child’s home state has declined to exercise jurisdiction, or (d) no other state has jurisdiction.
Superior courts can grant a divorce or award property located in Georgia without personal jurisdiction.
Personal jurisdiction refers to the power of the court to decide on the rights and duties of a particular person who appears before it. For a Georgia superior court to have personal jurisdiction over a defendant and to award alimony, child support or property situated outside of Georgia, the defendant must have been personally served and the defendant must have at least some contacts with the state in which the court is located. A defendant may choose to submit himself or herself to the jurisdiction of Georgia courts even if the defendant lives in another state. If, however, the non-resident defendant chooses not to submit to the jurisdiction of the court, a court may only acquire personal jurisdiction over the defendant by serving the Complaint for Divorce and Summons upon a defendant who resides in Georgia, or by serving the Complaint for Divorce and Summons upon a defendant who is not a resident of Georgia but who maintains a matrimonial domicile in this state or who resided in this state preceding the filing of the divorce action. O.C.G.A. § 9-10-91 (so called the “Georgia Long Arm Statute”)
However, personal jurisdiction is not necessary for the Georgia superior court to grant a divorce. Abernathy v. Abernathy, 267 Ga. 815 (1997) (Note: Personal jurisdiction is still necessary for the superior to award alimony, child support, or property that is not located within Georgia). The plaintiff / petitioner need to show only that the superior court has jurisdiction over the res of the marriage which results from his or her domicile in the state of Georgia for at least six months before filing for divorce. Charamond v. Charamond, 240 Ga. 34, 35 (1977).
Venue may be proper in the county where the plaintiff / petitioner resides.
Venue refers to where within the state of Georgia a case may be decided. Venue is always proper in the county of the defendant’s residence, however venue may be proper in the county where the plaintiff resides if: (a) the defendant is not a resident of Georgia, (b) the defendant has moved from the same county within the six months preceding the filing of the divorce case and the county was the site of the marital domicile at the time of separation, or (c) the defendant does not timely object. (Remember: unlike subject matter jurisdiction, personal jurisdiction or venue can be waived by failing to timely or properly object)
Domicile must be established for the residency requirement.
Under Georgia law, it is required that the plaintiff / petitioner has been a “bona fide” resident for at least six months before filing for divorce. Residence means domicile for the purposes of complying with the residency requirement. O.C.G.A § 19-5-2. To establish a person’s domicile, evidence of the person’s physical residence and his or her intention to remain there permanently is generally required. Intention to remain there permanently or to make home must be distinguished from intention to live in a place for the time being. Even if a person stays in a hotel, the person can prove his or her domicile if he intends to remain there permanently. On the contrary, if a person buys a house intending to live in a place for a limited amount of time, he or she cannot establish the domicile there.
Obtaining help in your case.
This article attempts to call attention to a few key points you need to know before filing for divorce. Most of the time jurisdiction is simple in divorce cases. However, if disputed, jurisdiction and venue can be very confusing and unclear in some instances. Therefore, it is in your best interest to discuss your concerns in these issues with your attorney.
If you are facing divorce in the Metro-Atlanta area, including Atlanta, Alpharetta, Cumming, Suwanee, Milton, Roswell, Sandy Springs, Dunwoody, Marietta and surrounding cities, call us at 770-609-1247 to speak with one our experienced divorce and family law attorneys.