Home > divorce, family law general > Jurisdiction in Divorce (or Can You File That Here??)

Jurisdiction in Divorce (or Can You File That Here??)

I was contacted in mid-January by an attorney who is licensed in another state, to represent a client of his who lives in that other state.  It happened that his client’s husband had come to Utah, Cache County, and filed a divorce action against his wife.  She was served the divorce petition papers in the other state, at the parties’ home.  Her lawyer there contacted me and asked me to represent her in Utah, specifically to object to the petition that had been filed in Utah based on one thing:  the court in Utah lacked jurisdiction to handle the case.

Believe it or not, the court has defined what it means to be Home...

Believe it or not, the court has defined what it means to be Home…

Jurisdiction is what gives the court the right to enter orders on any particular case.  In Utah, jurisdiction for divorce actions is spelled out in U.C.A. § 30-3-1(2):  “The court may decree a dissolution of the marriage contract between the petitioner and respondent … in all cases where the petitioner or respondent has been an actual and bona fide resident of this state and of the county where the action is brought, or if members of the armed forces of the United States who are not legal residents of this state, where the petitioner has been stationed in this state under military orders, for three months next prior to the commencement of the action.” (emphasis added)  What makes an “actual and bona fide resident” is found in Utah case law, specifically Munsee v. Munsee, 363 P.2d 71 (Utah 1961), and Bustamante v. Bustamante, 645 P.2d 40 (Utah 1982), to name a couple.

In Munsee v. Munsee, the court identified some factors that should be considered in determining whether one is an actual and bona fide resident for divorce proceeding jurisdictional purposes.  The Munsee court prefaces a listing of factors by noting that “[m]ost jurisdictions do not  have our ‘actual and bona fide’ residence requirement.  Many require only ‘domicil’ which…connotes a ‘home feeling’ for a particular place.” Munsee v. Munsee, 363 P.2d 71 (Utah 1961) (emphasis in original).  The court in that case further went on to note that the legislature’s use of the word “actual” means more than simply a “home-feeling,” and requires that the individual has “’actually maintained in good faith at least a locality somewhere in [the state] as his permanent abode.’”  Id.  To satisfy that requirement, “one must have some abode in the county to which he intends to return, and where, in doing so, he would be no trespasser.”  Id.

The court in Bustamante referenced Munsee regarding what constitutes an actual and bona fide resident, but added some additional clarifying factors that would show a requisite intent to return to a jurisdiction:  “voting, owning property, paying taxes, having family in the area, maintaining a mailing address, being born or raised in the area, working or operating a business, and having children attend school in the forum.”

What became key in the case I was working on this year was the period of time that’s considered by the court regarding residency:  One must have been an actual and bona fide resident for the 90 days immediately preceding the filing of the action.  Opposing counsel in my case submitted testimonial evidence that showed that his client had probably met the actual and bona fide residence standard in the time since the filing of the petition, but that’s not the time that matters….It’s the time BEFORE the filing.  And we showed evidence that for the 90 days before filing, the other party had NOT been an actual and bona fide resident of the state of Utah, Cache County.

The court sided with me.  The petition for decree of divorce was dismissed, and the divorce is being handled in the state where it belongs.

A couple of things to note:

First:  The judge in this case indicated that if the other party had gotten a driver license in Utah at the time he claimed he’d begun his residency, that that would have been sufficient evidence to show that he is an actual and bona fide resident for the purposes of getting divorced in Utah.

And second:  Evidence of purchasing property in the form of a burial plot in a particular place does NOT show an intent to live out your final days in that place…It shows evidence of intent to be dead in that place.  Please don’t ever use that as your evidence of jurisdiction.  Evah, evah, evah….Yeesh.

Finally–for those of you who are civics minded:  We need legislation passed that requires evidence of actual and bona fide residency to be submitted at the time of the filing of a petition for decree of divorce, or any other action that requires one to be a resident for a set period of time prior to filing.  As it stands now, all someone has to do is just SAY he/she is a resident, and no one is going to dispute it at the court level.  If the other party doesn’t object and dispute it, the case will be handled where it was filed.  That’s a violation of a person’s due process/procedural rights, and a failing in the law that needs to be addressed.  My client in this case ended up spending nearly $2000 to get the case relocated back to where it should have been in the first place, and it took 6 months.  Total waste of time and money, neither of which she’ll ever get back.

Contact your legislator and tell them.

If you're living in a motel, you're not Home, unless you own it (at least for purposes of divorce in Utah...

If you’re living in a motel, you’re not Home, unless you own it (at least for purposes of divorce in Utah…

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