Clients rarely know this, but during their first interview with an attorney, the first real
issue to resolve is the issue of jurisdiction – does the court have the power to grant the divorce in
the first instance or does some other state court have jurisdiction instead. The legislature is the
body that determines the power to grant a divorce, so a lawyer has to know what the state statute
says about jurisdiction. The right to grant a divorce is limited to instances where there is
jurisdiction over both the parties and the cause of action. You need both types of jurisdiction –
jurisdiction over the parties and over the cause of action for divorce – in order to get divorced.
Occasionally, a litigant will challenge jurisdiction under a doctrine called forum non
conveniens – arguing that the New Hampshire court is not a convenient court, comparatively
speaking. To illustrate – in Vazifdar v. Vazifdar, the husband argued that New Hampshire should
decline jurisdiction even though jurisdiction actually existed. He did so arguing that the Parsi
Matrimonial Court of India could/should determine marital status. He argued this way because
the marriage arose under the Parsi Marriage and Divorce Act. The New Hampshire Supreme
Court held in favor of the wife, reasoning that it would be unduly burdensome for the wife to
travel to India solely to convenience the husband. In effect, New Hampshire said its forum was
more convenient to the wife than the Indian forum.
There are four situations where New Hampshire can claim jurisdiction over the parties.
The first and most prevalent way is when both parties are domiciled/living in New Hampshire
when the divorce begins. The second way is when the plaintiff is living here and the defendant is
served with legal process here. The third way is when the plaintiff has been living here for one
year prior to starting the divorce – this period of time is called the waiting period. The fourth
way isn’t a fourth way at all – it says that if the plaintiff brings an action for divorce, the nonresident
defendant can file a counterclaim for divorce – and be awarded one – even if the
defendant doesn’t reside in New Hampshire. Having a domicile in New Hampshire is an
imperative. Without a New Hampshire domicile, the court is powerless to grant a divorce.
The United State Constitution has a provision that states that “full faith and credit shall
be given in each state to the…judicial proceedings of every other state.” Three things need to be
present to get full faith and credit: (1) a decision has to be made by a court having jurisdiction;
(2) the decision has to have been rendered after proceedings arose out of claim formerly
presented; and (3) the other party had to have been given fair notice and a reasonable opportunity
to be heard.
Most of the time, there are no jurisdictional issues in a divorce. Nevertheless, lawyers
must always be on their guard, particularly when the married couple has lived in different places.
If we do otherwise, we may be promising something we can’t deliver.