The Long Arm (Jurisdiction) Of The Law

Recently I posted about what happens when one parent takes the kids and moves to another state. This time I want to talk about the mirror image. Once again, it demonstrates why you need to retain a Phoenix Divorce Lawyer right away.

Let's say a couple meets and gets married in Arizona. They live in Arizona for a year or two, and have a couple of kids. Then they move to SoCal because of a job transfer. They intend to stay there, so they buy a house there, register to vote there, open a bank account there, and register their vehicle there. Unfortunately, things go sour, and one of them (let's say the wife) loads the kids in the car and comes back home to AZ to live with her parents. She now wants to bring an action in Arizona to get a divorce, get child custody, divide the property, and maybe get alimony. Can she do that? The answer is, it depends. Which brings us to a discussion of jurisdiction.

"Jurisdiction" is the legal power of a particular court to issue particular types of orders. There are two types of jurisdiction we need to discuss: jurisdiction over the subject matter, and jurisdiction over the person.

An Arizona court by statute has subject matter jurisdiction if either party is a resident of Arizona and has been for the last 90 days. ARS 25-312(1). That allows the court to grant a decree of divorce, to award custody of children physically present in Arizona, and to divide marital property located in Arizona. In order to do anything else--such as order child support, alimony, or division of property located in some other state--Arizona must have personal jurisdiction over the other out of state spouse. This is called "long-arm" jurisdiction. As in the "long arm of the law." Which in practice is a vague concept; the courts look at the facts of each case.

As the Arizona Supreme Court said in Williams v. Lakeview Co., 199 Ariz. 1, 13 P.3d 280 (2000), t he "long arm" personal jurisdiction test requires that the defendant havesufficient "minimum contacts" with the Arizona such that the maintenance of
the suit does not offend "traditional notions of fair play and substantial justice." Personal jurisdiction may be divided into two types: (1) general jurisdiction and (2) specific jurisdiction. Under either specific or general jurisdiction, “the constitutional touchstone remains whether the defendant purposefully established ‘minimum contacts' in the forum State .” A non-resident defendant is subject to "general jurisdiction" when the defendant's contacts with the forum state are substantial or continuous and systematic enough that the defendant may be haled into court in the forum, even for claims unrelated to the defendant's contacts with the forum. When a defendant's activities in the forum state are not so pervasive as to subject it to general jurisdiction, the court may still find "specific jurisdiction" if: (1) the defendant purposefully avails himself of the privilege of conducting business in the forum; (2) the claim arises out of or relates to the defendant's contact with the forum; and (3) the exercise of jurisdiction is reasonable.

In the case of Nickerson v. Nickerson, 542 P.2d. 1131, the Court of Appeals stated that if Arizona was the "last marital domicile"--i.e. the last state where the parties lived together as a married couple--then minimum contacts are satisfied for the exercise of special jurisdiction. If not, then the mere fact that the parties at one time had their marital domicile in Arizona is not sufficient.

So back to our hypothetical. California, not Arizona, was the last marital domicile. So Arizona doesn't have personal jurisidiction, right? Not so fast. In the recent unpublised case of Palmer v. Palmer, the Court of Appeals said that "last marital domicile" was just one way to establish special jurisdiction. It can also be established through other means. In that case, the couple had not lived in Arizona for nearly 10 years before husband moved back here from Colorado. But the out of state spouse (the wife) had formed a corporation in Arizona (even though it owned no Arizona property), which the husband was claiming an interest in. Furthermore, she was an "authorized user" on husband's Arizona country club membership. The Court said that was enough. Seemed a bit weak to me, and it is an unpublished decision, so it can't be cited as authority. But the premise--that "last marital domicile" is only one way to obtain long-arm jurisdiction--seems sound. And it depends on the facts of the case.

Obviously, then, if you are in this situation, you need a hard fighting, straight talking lawyer helping you out.