Jurisdiction Issues in a Divorce Proceeding

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.