Written by Rachel Aliza Elovitz
There are three kinds of “jurisdiction” that are at issue in divorce. Jurisdiction over the type of legal action is referred to as “subject matter jurisdiction.” In Georgia, the Superior Courts have jurisdiction over the dissolution of marriages. “Personal jurisdiction” refers to the Court’s authority to exercise authority over the parties to the case and to bind them by their judgments, and “venue” refers to the county and state in which the divorce action must be filed. If you do not want your divorce action to be dismissed, then it is important to file in the proper court, the correct county, and to known when personal jurisdiction is required. This legal guide seeks to answer those questions.
- RESIDENCY REQUIREMENT
To file for divorce in Georgia, you need to have been a bona fide resident of Georgia for six months prior to the filing of the divorce petition.
- WHEN PERSONAL JURISDICTION IS NOT REQUIRED
The Georgia Supreme Court has held that personal jurisdiction over the defendant (the person against whom the divorce is filed) is not a prerequisite to the grant of a divorce by a Georgia Court. To be clear, that is ONLY when the relief sought is limited to the grant of a divorce – not alimony, attorney’s fees, or other relief.
- JURISDICTION OVER THE “RES” OF THE MARRIAGE – MARITAL DOMICILE
If a petitioner is simply looking to dissolve the marriage (i.e. if he or she only wants a divorce) and is not requesting any other relief, then he or she need only show that the court has jurisdiction over what the law and lawyers refer to as the “res of the marriage,” a matrimonial domicile (marital residence) in this state for the six-month period preceding the filing of the divorce (OCGA ? 19-5-2).
- JUDGMENT “IN REM” – MARITAL PROPERTY LOCATED IN GEORGIA
The Court can also render a judgment “in rem” with respect to the marital property located within its territory (property in Georgia).
- WHEN PERSONAL JURISDICTION IS REQUIRED – REQUESTS FOR OTHER RELIEF
Personal jurisdiction over a defendant is required if the petitioner (the person filing for divorce) is seeking relief other than the grant of the divorce, including, as examples, alimony, attorney’s fees, or division of assets outside the state. However, if a defendant resides out of state, personal jurisdiction can sometimes be obtained through the “Long Arm Statute.”
- THE LONG ARM STATUTE – OBTAINING PERSONAL JURISDICTION
The Long Arm Statute (OCGA Section 9-10-91) allows for jurisdiction over the defendant with respect to proceedings for divorce, if the parties maintained a matrimonial domicile (a marital home) in Georgia at the time of the commencement of the divorce action or if the defendant resided in Georgia preceding the commencement of the action, irrespective of whether the parties were cohabiting during that time. In other words, if your spouse resided in Georgia prior to the action for divorce being filed, even if he or she was not living with you, or if you maintained a marital home in Georgia prior to the divorce action being filed, the Long Arm Statute will apply.
- WHEN THE LONG ARM STATUTE DOES NOT APPLY
If you and your spouse did not maintain a matrimonial domicile in Georgia at the time of the commencement of the divorce action or if the defendant (your spouse) did not reside in Georgia preceding the commencement of the action, then an action seeking alimony, division of property located outside the state, and/or attorney’s fees would have to be filed in the county in which the defendant (your spouse) resides, pursuant to Article VI, Section II, Paragraph I of the Georgia Constitution. If your spouse resides out of Georgia, then you will want to speak to an attorney who practices in the State and county in which your spouse resides.
- PERSONAL JURISDICTION IN CASES INVOLVING CHILD CUSTODY
As for custody, effective July 1, 2001, Georgia repealed the Uniform Child Custody Jurisdiction Act (the “UCCJA”) and enacted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). Under the UCCJEA, one basis for a Georgia court’s exercise of jurisdiction over an initial custody determination is that Georgia is the “home state of the child on the date of the commencement of the proceeding.” OCGA ? 19-9-61(a)(1) and OCGA ? 19-9-41(7). The UCCJEA, however, does not give the Court personal jurisdiction over child support, divorce, alimony, or contempt matters. Daniels v. Barnes, 289 Ga.App. 897, 658 S.E.2d 472 (2008). Accordingly, if you are seeking custody in connection with a divorce action, you will want to make sure that you meet the necessary jurisdictional requirements, noted above, for filing a divorce.
Rachel A. Elovitz is a domestic litigator who regularly serves as a guardian ad litem, representing the interests of children in custody, abuse, and neglect cases in Georgia’s Superior and Juvenile Courts. She is a regular contributor to the DeKalb Bar News.
Originally published here: