If the concern relates to a court’s lack of jurisdiction over one of the parties, this represents a solvable problem. A lack of personal jurisdiction can always be waived. For example, if there are cost savings, convenience factors, shorter timelines, or other practical considerations that make a particular forum beneficial, it is not uncommon for a party to agree to submit to the jurisdiction of a court that would not otherwise have personal jurisdiction over him or her. Such a waiver sometimes comes in the form of a deliberate written agreement regarding personal jurisdiction. Such a waiver also sometimes comes as a result of participation in the proceeding without raising the claimed lack of personal jurisdiction at the outset. In short, the lack of personal jurisdiction over a litigant can be resolved by express or implied waiver.
The lack of personal jurisdiction can also be overcome by service of process within the forum. However, in the realm of family law, some states deem service of process invalid if it took place when the individual was in the state purely and only for parenting time. Other states view service as invalid if the individual is in the state only for attendance at a court proceeding. Still other states impose no such distinctions.
Thus, it is important to know your applicable rules. Keep in mind that the applicable principles may not be specific to family law but may well be in the statutes, rules, or cases that govern civil litigation generally.
If the opposing party can’t be found to establish personal jurisdiction by service of process or he or she is not willing to voluntarily participate in the proceeding, counsel will need to consider whether the court’s authority to enter orders relating to the status of the marriage or relating to other issues that do not require personal jurisdiction over the opposing party will provide worthwhile relief. For example, a divorce decree can typically be obtained even if the court lacks personal jurisdiction over one of the parties to the marriage. Similarly, orders dividing real estate or other assets located within the forum state can typically be obtained even if the court lacks personal jurisdiction over the opposing party. However, that approach is not going to provide a useful outcome if there is no marriage to be dissolved and the client is seeking child support or other financial orders that would impose payment obligations on the party beyond the personal jurisdiction of the court. Similarly, ending the marriage may not be a good partial solution if the client is also in need of alimony, spousal support, or a division of the other party’s retirement account.
The key question is not whether you could persuade a local judge to enter orders on issues beyond the status of the marriage. (The answer to that question will often be “yes.”) The real question is whether the default order obtained in the absence of personal jurisdiction over the opposing party will be entitled to full faith and credit so as to be recognized outside the forum. For example, one of several keys to enforcement of child and spousal support orders in other states is that the issuing state must have had personal jurisdiction over both contestants. See 28 U.S.C. § 1738B.
Subject Matter Jurisdiction
If the jurisdictional obstacle relates not to personal jurisdiction over one of the parties but to the subject matter jurisdiction of the court, the same kind of workaround approaches are not going to be useful or advisable. A lack of subject matter jurisdiction is not something that can be waived by the parties. Similarly, parties cannot confer subject matter jurisdiction on a court that does not otherwise have such jurisdiction regardless of when or how they attempt to do so. Perhaps most importantly, orders entered by a court lacking subject matter jurisdiction are not entitled to full faith and credit recognition in other states. As a result, the most genuinely useful thing a lawyer can do when faced with a lack of subject matter jurisdiction is to promptly refer the client to counsel in the state that does have subject matter jurisdiction.
The lack of subject matter jurisdiction occurs in family law proceedings most frequently in custody and visitation proceedings governed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and in proceedings to establish, enforce, or modify child support governed by the Uniform Interstate Family and Support Act (UIFSA). (Both of those uniform acts are discussed in detail in the Spring 2017 issue of the Family Advocate, which deals with uniform laws. See Uniform Laws for Family Law, Fam Advocate, Spring 2017, Vol. 39, No. 4.) When the prospective client is residing in the state where the lawyer practices and is physically present in the lawyer’s office, the inclination is to assume there must be something the lawyer can do to help that client. However, a key point to remember is that the presence of one of the litigants or prospective litigants in the state does not, alone, establish or determine subject matter jurisdiction. As well, it is possible to waste substantial amounts of time and money for no useful purpose if there is an attempt to proceed in a court that lacks subject matter jurisdiction.