Florida Divorce Jurisdiction & Custody Jurisdiction
When does Florida have jurisdiction over a case?
Florida has jurisdiction over a divorce when one spouse has been a resident of Florida for at least 6 months prior to filing the petition. Both spouses must have a strong financial or physical connection to Florida for the court to have jurisdiction over assets or alimony. When considering custody jurisdiction the child must have been living in Florida for at least 6 months prior to filing. Jurisdiction is a complex matter and must be carefully considered.
Overview of Jurisdiction Rules:
A common question in divorce or custody cases is whether Florida would be the correct state to file the case or whether jurisdiction rules require a different state. There are some established rules and procedures for jurisdictional questions. One of the more common rules is called the UCCJEA – Uniform Child Custody Jurisdiction and Enforcement Act. The US Constitution and Federal Court decisions have established other rules. A very common principle was established by a really old case – International Shoe (yes, that case affects divorce and custody). There is also a large body of jurisdictional laws and procedures governed by state law. Jurisdiction in divorce, custody, or support is a complex mess and there are many rules to follow. Whether Florida is the “correct state” can be a difficult question to answer. More often than not there is more than one “correct state.” But many times there are several correct states. That fact gives clients terrific opportunities to create a unique case strategy.
Divorce Jurisdiction in Florida
A Divorce can be granted in any state where the filing-spouse is eligible to file for divorce under that state’s law. It does not matter where you were married. It mostly does not matter where you last lived together. It doesn’t even matter where the house is located. A court can dissolve your marriage, and declare you to be single in just about any state. There are complications when you add in property division, custody, child support, or alimony. But the basic process of dissolving the marriage can happen in any state.
Child Custody Jurisdiction in Florida
Things start to get interesting when there are minor children. When the parents are in different states, have recently moved, or there is a fight over custody jurisdiction, the UCCJEA determines the proper state all decisions about children. The UCCJEA is a set of statutes that are part of state law in just about every state, including Florida. The content of each state’s version of the UCCJEA is supposed to be similar to each other – if not exactly the same. The basic requirement for state jurisdiction over children’s issues is to determine where the child has lived for the last, continuous, six months. That state is called the “Home State” of the children. Theoretically the Home State will take jurisdiction over custody matters and decide the future of the children.
Many situations become complex and can cause fights between parents in different states. One parent may decide to move in or out of Florida and file for custody. When that happens, the courts in both states examine the facts and rely on their local version of the UCCJEA. The judges in both states may have a phone conference in more extreme fights over child custody jurisdiction. As with any law, there are many exceptions, interpretations, and many legal arguments to be made.
Child Support Jurisdiction
State jurisdiction over child support sticks with the state that has custody jurisdiction. Child support is normally bundled with the rest of the children’s issues. However, as an exception, there are government mechanisms that appear to move cases between various states. One of those mechanisms is the government child support enforcement office, or whatever the same type of agency is called in certain other states. Federal law requires each state to set up some sort of child support enforcement department, and also requires each state’s agency to cooperate with other states. So a Florida child support case may end up being enforced by another state. Or the opposite could be true. But in the end, the proper place to file for child support modification is in the original state that has jurisdiction over child support.
Alimony Jurisdiction in Florida
There is a basic, universal rule for alimony. You cannot take someone to court for alimony if that person has never stepped foot in your state, done business in your state, or spent extensive time in your state. The legal community calls that concept “minimum contacts.” An alimony case must be filed in a state where the potential payer of alimony has had contacts, business relationships, or a track record of residence. In Florida, or any other state: even if there is jurisdiction over the marriage, child custody, child support, or anything else – there must be proper facts to also establish jurisdiction for alimony. You cannot necessarily file for alimony in a given area just because your state allows you to file there for divorce.
What to Do if You Are Served with a Summons from an Incorrect State?
If you are in Florida and have been served with an out-of-state divorce, or are in another state and have been served with a Florida case – it is essential to have a good jurisdiction attorney to handle your case. It is possible to permanently lose your jurisdictional fight by doing any one of a number of things: sending a letter, calling the court, or showing up in court. There is a mechanism for fighting or contesting the jurisdiction of a court without sacrificing your case. The technical term is called a “special appearance” and it must be done in a very particular manner.
It is important to have access to an attorney in both Florida and the other state. The best situation is to have attorneys on both ends that consult with each other. One attorney needs to fight jurisdiction in the “undesirable state” and the other attorney needs to fight-for jurisdiction in the “desired state.” Fighting divorce, custody, or alimony jurisdiction usually means filing a Special Appearance and a Motion to Dismiss (depending on that particular state’s laws.). Arguing FOR jurisdiction usually involves filing a new divorce or custody case and aggressively pushing the case along. Of course the exact sequence varies with the involved locations and also depending on the goal you are trying to achieve.
Special Appearance – You Are There, But Are Not There
Every state has a fiction called a Special Appearance. That is a maneuver where you can show up, file documents, and fight jurisdiction without giving up the fight. The critical concern is how to avoid the consequences of the most basic court rule: the rule that states the second you show your face in court or the first document you file has the effect of surrendering to the jurisdiction of that state. A “Special Appearance” is a mechanism where you can show up and file paperwork all-the-while claiming that state is the improper place. Special appearance documents are not a do-it-yourself procedure. One mistake and you are pretty much done.
Conclusion on Jurisdictional Cases
Our favorite cases are jurisdiction fights for divorce, custody, or paternity. They are complex, interesting, and present an incredible opportunity to push our client’s goals forward. Sometimes we can plan on which jurisdiction offers the most advantages to our client and push in that direction. These are very interesting, very rewarding cases for our clients and we welcome the opportunity to discuss your situation. The divorce and custody attorneys at Ayo and Iken have handled quite a few jurisdiction disputes between various states. Because Florida is very close to Puerto Rico and we see a lot of dual-headed cases between those two areas. But we also have handled numerous cases between Florida and Georgia, Virginia, Ohio, Michigan, New York, California, and many other state jurisdictions. We are available to plan strategy, discuss advantages/disadvantages, and for consultations with attorneys in other states.
Our Attorneys Are Ready to Fight for You!
Over the past 12 years Ayo & Iken has helped over 5,000 people just like you
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