Jurisdiction Questions in Divorce
When people decide to get divorced, even the most elementary issues must be in proper order, or there could be problems with the legality of the proceedings at a later date. Jurisdiction is usually one of these issues. Most of the time, the parties assume all is well with this aspect, and they are usually correct. However, if a spouse has moved out of state or is in the military, there could be jurisdiction questions that must be answered.
Types of Jurisdiction and Requirements
If you or your spouse decide to move out of Illinois, it is generally not a problem unless it can be proven that you moved deliberately to cause issues or confusion for your spouse, such as frustrating parenting time considerations. Any state where one spouse has been resident for at least 90 days has jurisdiction to oversee a divorce filing under Illinois law. However, it can be markedly more complex: namely, because not every situation in which a state has jurisdiction over a divorce is one where that state also has jurisdiction over issues like property division. This is referred to as the principle of divisible divorce.
There are two types of jurisdiction, and a divorce case must qualify in both to be able to be handled in a certain state. Subject matter jurisdiction is the ability of a court to hear certain types of cases. For example, most family courts have subject matter jurisdiction over divorce cases. Personal jurisdiction, however, is being able to exercise power over someone based on his or her degree of contact with the place where the court is located. In other words, if someone lives in Illinois and refers to it as their residence, Illinois courts almost certainly have personal jurisdiction over that person and his or her affairs. If that same person were to be named in a lawsuit in Oregon, where he or she has never been, it would be less likely that the Oregon court would be able to exercise jurisdiction.
“Long Arm” Jurisdiction
In order to have jurisdiction over a spouse who does not live in your state, a “long-arm” statute must be employed. Illinois does have one, as most states do, and it lists several acts that render someone subject to the state’s personal jurisdiction in any case related to the act. For example, if someone comes to Illinois to rent a vacation home, that person is then subject to Illinois’s personal jurisdiction for any potential lawsuit related to that rental. If an individual contracts with an Illinois resident to provide a good or service, the seller would be subject to Illinois’s personal jurisdiction even if they have never entered the state. In a divorce context, this is important. Even if your spouse may never have lived in Illinois, showing that they have acted in a way covered by the long-arm statute will still grant Illinois courts jurisdiction.
Be advised that in regard to exercise of parental responsibilities, jurisdiction works slightly differently; Illinois has adopted the Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA) and generally assigns the child’s most recent home for more than six months as his or her residence. This can affect the ultimate choice that parents may choose for their divorce proceedings.
Contact a Divorce Attorney
A competent divorce attorney can make a world of difference, especially in ensuring that all the little details have been addressed. Contact an experienced Geneva divorce lawyer for guidance. Call 630-232-9700 for a confidential consultation at The Law Offices of Douglas B. Warlick & Associates today.