Divorce – Grounds and Jurisdiction

Class #2

But first, a little tech advice….

Dear Tech Support:

Last year I upgraded from Girlfriend 7.0 to Wife 1.0. I soon noticed  that the new program began unexpected child processing that took up a  lot of space and valuable resources. In addition, Wife 1.0 installed itself into all other programs and now monitors all other system activity. Applications such as Poker Night 10.3, Football 5.0, Golf 7.5, and Racing 3.6

I can't seem to keep Wife 1.0 in the background while attempting to run my favorite applications. I'm thinking about going back to Girlfriend 7.0, but the uninstall doesn't work on Wife 1.0. Please help!

Thanks, A Troubled User

…and the response

Dear Troubled User:

This is a very common problem that men complain about.

Many people upgrade from Girlfriend 7.0 to Wife 1.0, thinking that it  is just a Utilities and Entertainment program. Wife 1.0 is an  OPERATING SYSTEM and is designed by its Creator to run EVERYTHING!!! It is also impossible to delete Wife 1.0 and to return to Girlfriend  7.0. It is impossible to uninstall, or purge the program files from the system once installed.

You cannot go back to Girlfriend 7.0 because Wife 1.0 is designed to not allow this. Look in your Wife 1.0 manual under Warnings-Alimony-Child Support. I recommend that you keep Wife1.0 and work on improving the situation. I suggest installing the background application "Yes Dear" to alleviate software augmentation.

and finally….

The best course of action is to enter the command C:\APOLOGIZE because ultimately you will have to give the APOLOGIZE command before the system will return to normal anyway.

Wife 1.0 is a great program, but it tends to be very high maintenance. Wife 1.0 comes with several support programs, such as Clean and Sweep 3.0, Cook It 1.5 and Do Bills 4.2.

However, be very careful how you use these programs. Improper use will cause the system to launch the program Nag Nag 9.5. Once this happens, the only way to improve the performance of Wife 1.0 is to purchase additional software. I recommend Flowers 2.1 and Diamonds 5.0 !

WARNING!!! DO NOT, under any circumstances, install Secretary With Short Skirt 3.3. This application is not supported by Wife 1.0 and will cause irreversible damage to the operating system.

Grounds for Divorce

Traditional (Fault-Based) Grounds No Fault Grounds

Traditional (Fault-Based) Grounds

Cruelty– The forerunner to no fault divorce

Adultery Desertion/Abandonment

Cruelty

Was often “negotiated” as the ground of choice in the pre-no fault era

Even before the “no fault” revolution of the 1970’s, most divorces were uncontested (as to the divorce, not necessarily the financial issues)

Remains a ground for divorce in 25 states

Adultery

Also a crime in many states, but rarely prosecuted criminally

Remains a ground for divorce in most states

Desertion/Abandonment

More common that adultery as a ground, but less so than cruelty

Still on the books in 28 states Often there is a duration requirement,

typically one year Some states require that the desertion be

“unjustified”

1970’s – The No Fault Revolution

Was it a “revolution” or was it the legal system catching up with changes already made is society

Studies show that the increase in divorce rates preceded no fault laws and have fallen in recent years

The so-called “Bible-belt” or red states have a higher divorce rate than the “liberal” blue states

What is no fault?

“Pure” no-fault– Marital breakdown is only ground for divorce

Blended– At least one no fault ground with fault-based

grounds still available (but rarely used)

No fault grounds

Marital breakdown Living separate and apart Incompatibility

Marital breakdown

Requires testimony from requesting party that the marriage is broken and no chance for reconciliation

Includes concept of “irreconcilable differences”

Florida has a version of the “marital breakdown” ground for divorce

Living separate and apart

Unlike desertion, no “justification” for the separation required

Period of separation required, often one year– Pursuant to a written agreement– Voluntarily and willingly apart– No agreement or other conditions required, just

separation– Separated and proof of marital breakdown

Incompatibility

Available in only seven states More than petty bickering Requires showing of incompatibility of

temperament, a true mismatch of personalities, goals, interests

Florida grounds for divorce -

No judgment of dissolution of marriage shall be granted unless one of the following facts appears, which shall be pleaded generally:

(a) The marriage is irretrievably broken.

(b) Mental incapacity of one of the parties.

F.S.A. § 61.052

Divorce Jurisdiction – “The Divisible Divorce”

Separate rules for jurisdiction over:– Termination of the marriage– Provisions for the children (custody, visitation,

child support)– Financial concerns (property division, alimony)

Jurisdiction to terminate marriage

Divorce is not an equitable action, despite notion of equitable distribution or property and many opinions in divorce cases where judges speak of “doing equity.”

Authority to grant divorce is purely statutory, as are the jurisdictional requirements

Migratory divorce

Prior to residency statutes, needed only to be present and prove a ground for divorce

Often want to get away from home to someplace warm (yes, Florida was once a divorce haven in the era of migratory divorce)

Avoid local notoriety Also avoid financial responsibility for family

back home

Full Faith and Credit Clause

Constitutional requirements for application of full faith and credit as determined by US Supreme Court prompted states to adopt meaningful residency requirements that doomed migratory divorce

No state wanted to have a jurisdictional requirement so loose that other states were not obligation to recognize its divorces

Williams I

Nevada divorces and remarriage, Return to North Carolina and

prosecuted/convicted of adultery Held: State of plaintiff’s domicile can grant a

divorce which must be given “full faith and credit” by all other states

Adultery conviction reversed

Williams II

Same case, but on remand the N.C. court found that the claim of domicile in Nevada was not supportable.

Held: States must give respect for, but are not bound by, another state’s finding that it has sufficient proof of domicile to grant a divorce

Adultery conviction affirmed

Sherrer

Wife from MA comes to FL for divorce H appears in FL also, but does not contest

W’s claim of FL domicile H then appeals, claiming FL lacked

jurisdiction because W was really a MA resident

Held: H had a chance to contest FL domicile, but didn’t, so now he is stuck with it.

Period of residency before filing

Every state has a statutory minimum period of residency (except Alaska, which requires proof of common law domicile)

6 months is the most common period of residence– Nevada is 6 weeks, hence its reputation as a

divorce haven, but only for the wealthy who can afford to stay there for 6 weeks to establish jurisdiction

Personal Jurisdiction - Kulko

Minimum Contacts with state by defendant Reasonable and fair to require defendant to

defend action in state in question Purposeful availment of privileges and

protections of the state Defendant’s acts elsewhere caused effects in

the state

Florida period of residency

FL. Stat. §61.021 Residence requirements.--To obtain a dissolution of marriage, one of the parties to the marriage must reside 6 months in the state before the filing of the petition.

Subject Matter (In Rem) Jurisdiction over Divorce in Florida

Both parties here, or only one? Is six months really six months?

Either party can be FL resident

Court has jurisdiction to dissolve marriage where either party is a resident of Florida. Loffler v. Loffler, 620 So.2d 1048 (Fla. 1st DCA 1993).

Six months need not be continuous

Continuous residency in state for six months prior to filing dissolution petition is not required. Residency requires only– actual presence– and the intention at that time to make

Florida party's primary residence. – Hunter v. Hunter, 736 So.2d 801 (Fla. 1st

DCA 1999); Copas v. Copas, 687 So.2d 885 (Fla. 2d DCA 1997).

For example…

Short-term vacations outside of Florida during the crucial 6 month residency period will not along defeat subject matter jurisdiction if:– At least six months has passed since initially

arriving in Florida before the petition is filed, and

– There is the requisite intent starting at the beginning of that 6 month period to permanently reside here

But…

The court does not have jurisdiction over marriage where evidence did not establish that a wife intended to make Florida her permanent residence six months prior to her filing of the petition. Sragowicz v. Sragowicz, 591 So.2d 1084 (Fla. 3d DCA 1991).

“one suitcase” decision

What proves intent to reside?

Purchase of home Register to vote Driver’s license Bringing belongings Registering children in school Becoming employed Clearly stating an intent to remain

Temporary or involuntary absence

Temporary and or involuntary absence from the State does not defeat residency requirement. Wade v. Wade, 113 So. 374 (Fla. 1927), Rahal v. Rahal, 861 So. 2d 114 (Fla. 3d DCA 2003), Wetherstein v. Wetherstein, 111 So.2d 292 (Fla. 2d DCA 1959)

What types of absence are OK?

Military or government service Employment reassignment (if not permanent) Vacation Incarceration in another state Medical treatment elsewhere

Key fact to prove if temporarily absent from FL

Intent to return to FL after period of absence Did not establish a domicile in another state

Challenges to subject matter jurisdiction

Lack of subject matter jurisdiction can be raised at any time including for the first time on appeal.

But subject matter jurisdiction is a matter of law and cannot be conferred on the court by waiver, agreement or acquiescence.

Chapoteau v. Chapoteau, 659 So.2d 1381 (Fla. 3d DCA 1995).

What if two states have subject matter jurisdiction?

Florida court should decline to exercise jurisdiction of dissolution of marriage action where two courts have concurrent jurisdiction and a prior action has been filed in another state. The first to exercise jurisdiction acquires exclusive jurisdiction under the "principle of priority". Siegel v. Siegel, 575 So.2d. 1267 ( Fla. 1991).

Personal Jurisdiction over Divorce in Florida

FL. Stat. 48.193: Florida has personal jurisdiction over a defendant if he/she:– maintained a matrimonial domicile in this state at

the time of the commencement of this action – resided in this state preceding the

commencement of the action, whether cohabiting during that time or not.

– This statute does not change the residency requirement contained in §61.021 for filing an action for dissolution of marriage.

Long arm jurisdiction

FL. Stat. 48.194: Personal service outside the United States: Service of process on persons outside the United States may be required to conform to the provisions of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial matters.

To effect service of process under the Long Arm Statute, specific allegations demonstrating the jurisdictional facts must be alleged. Weiler v. Weiler, 861 So. 2d 472 (Fla. 5th DCA 2003), McMahan v. McMahan, 826 So. 2d 1024 (Fla. 3d DCA 2001).

Challenges to personal jurisdiction

Where parties raise jurisdictional issues, evidentiary hearing is required. Weiler v. Weiler, 861 So. 2d 472 (Fla. 5th DCA 2003), Anechiarico v. Thompson, 596 So.2d 514 ( Fla. 4th DCA 1998).

When jurisdictional allegations of pleading are controverted by affidavit, the burden shifts to petitioner to establish jurisdiction. Passy v. Lewis, 553 So.2d 223 (Fla. 1st DCA 1989).

Lack of jurisdiction

A Final Judgment entered without personal jurisdiction is void ab initio. Anderson v. Anderson, 845 So. 2d 307 (Fla. 2d DCA 2003).

Death of a party prior to rendition of final judgment divests court of jurisdiction. MacLeod v. Hog 654 So.2d 1250 (Fla. 2d DCA 1995).

Federal Jurisdiction?

Doctrine of abstention by federal courts in domestic relations matters

Exception to federal diversity jurisdiction The whole subject of the domestic relations

of husband and wife, parent and child, belongs to the laws of the states and not to the laws of the United States

Exceptions to Abstention Doctrine

Tort suits stemming from custody and visitation disputes

Enforcement of divorce judgments if the question does not require the federal court to address core domestic relations issues

Other times where the “dirty work” of family law has already been done by the state court