Family Law Focus – Cozen O'Connor

Jurisdiction Over Out-Of-State Property In A Multi-State Divorce


In our increasingly mobile society, it is not uncommon for couples to relocate numerous times throughout their marriage and acquire property and assets in different states.  When a divorce dissolves the marriage and forces a distribution of assets spread across various states, the Court in the state where the parties reside at the time of their divorce does not have the legal authority to issue a ruling over the property located in another state.  This legal authority, known as“in rem jurisdiction” applies to property located within that particular state as opposed to property located in another state.

In a divorce matter, Courts are able to circumvent the lack of “in rem” jurisdiction over the out of state property by utilizing the Court’s jurisdiction over the parties instead (known as “in personum” jurisdiction). In other words, while the Court lacks jurisdiction to enter an Order as to the property itself, the Court can enter an order directing a person to divide the property in a certain way, regardless of where the property is located.

In personam jurisdiction only applies, of course, in a divorce matter where the Court has personal jurisdiction over both parties.  A situation can thus arise where one party files for divorce in a state where he/she is currently residing, but where the other party has never resided or has not had any contact with that particular state.  For example, the parties reside in New York for the entirety of the marriage. The parties separate, and Husband moves to Connecticut and Wife moves to Pennsylvania.  After establishing residency and jurisdiction in Pennsylvania, Wife files for divorce.  While Wife does have the right to file for divorce in Pennsylvania and the Court does have jurisdiction over the divorce, the Court does not have in personam jurisdiction over Husband and thus does not have the ability to enter an Order directing Husband to distribute property in a certain way.

In order to acquire personal jurisdiction over Husband, Husband would have to be present in Pennsylvania at the time process was served, would have to consent to the jurisdiction of Pennsylvania, or would have to have sufficient minimum contacts with Pennsylvania to support the exercise of in personam jurisdiction.  If personal jurisdiction is not established, the situation gives rise to what is known as a “divisible divorce.”  Under this concept, which was established by the United States Supreme Court in a series of decisions in 1948, a state can go as far as entering a Divorce Decree but cannot divide the assets or enter an Order pertaining to alimony/support.

A divisible divorce can be expensive and time consuming, as the party initiating the matter would then have to pursue a second litigation in a different state in order to divide the marital assets and determine alimony/support.  A divisible divorce can also be costly for the out-of-state party who will likely have to engage in litigation in the state where the divorce is initially filed in order to challenge the jurisdiction issue.  As the Supreme Court of New Jersey noted about the divisible divorce scenario in Kram v. Kram “we are not happy about this scene, but we have no solution better than the “divisible” divorce concept evolved by the United States Supreme Court.” 52 N.J. 545 (1968).

In light of the possible jurisdiction issues in divorce, it is important to know which state has jurisdiction over all aspects of the divorce before the complaint is filed to ensure the matter is pursued in the proper location.  While the divorce itself can be finalized rather quickly in a divisible divorce situation compared to the more complicated litigation that often arises with the division of a marital estate, the estate must be divided at some point, and it is therefore best to know from the start which state has jurisdiction over the property and the parties to avoid separate litigation in multiple states.

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