How Does a Court Get Jurisdiction Over a Defendant in a Divorce Case?
In a New York divorce, the court must obtain “jurisdiction” over the defendant before the action can be heard. That means that the plaintiff (the person bringing the action) must serve his/her spouse the divorce papers and an affidavit of service must be filed with the court to prove that issue has been joined between the plaintiff and defendant and that the defendant is within the state in which the court is located. If the defendant is not within the state, the court may or may not have jurisdiction over the defendant. It depends. If the defendant moves for a motion to dismiss for lack of jurisdiction, this in itself could create personal jurisdiction over the defendant, which, unlike subject matter jurisdiction, can be waived. So under certain circumstances it may be better that the defendant does not answer if he or she does not want the court to obtain personal jurisdiction over him or her. (Of course, not answering only buys so much time so don’t expect to use that as a permanent delay tactic and there have been many cases which have held that the mere answering for purposes of seeking a dismissal on jurisdictional grounds does not in and of itself give the court jurisdiction.)
But before any of that happens, the plaintiff must purchase an index number to get the case on the calendar, and this is done by going to the county clerk’s office and paying a fee of $210. Once an index number is purchased, the clock begins to tick and the plaintiff only has 120 days to get her/his spouse served. If that doesn’t happen, the index number expires and a new one is needed.
The summons/complaint must be personally delivered to the defendant. (It cannot be mailed unless a court says it can be mailed). The spouse cannot serve the defendant, but must get a process server, friend or anyone over the age of 18 to serve the defendant. That person must be a resident of New York. That person must be a solicitor, lawyer or equivalent if the defendant is served in another country. That person must ask the defendant if he/she is in military service. That person must deliver the papers to the defendant so that “action for divorce,” is clearly visible on top. That person must complete an affidavit of service.
Once your spouse receives the summons, and answers, the court establishes personal jurisdiction over them – even if he or she resides outside the state or even if he or she lives abroad. If your spouse does not answer but contacts the court to get more information – for example – still, personal jurisdiction could be established just by the contact with the court.
Personal jurisdiction can also be established based on residency in the state, owning real estate in the state, or having certain “minimum contacts” with the state even if the defendant lives outside the state (long arm statute). It could also be on the basis of the domicile of the parties (which could be different from their habitual residence.)
Note that it is possible that the court in one jurisdiction could have jurisdiction over the party as a personal matter (to grant the divorce) but may not have jurisdiction over the defendant’s property which may be located in a whole other jurisdiction or country and would therefore be subject to the courts where the property (including real estate and bank accounts) are located. The court needs either personal jurisdiction over the defendant or quasi in rem jurisdiction over the defendant’s property in order to rule on property when defendant is not present in the forum state.
This is an interesting article on jurisdiction that I found online.
This is an interesting case http://law.justia.com/cases/new-york/other-courts/2010/2010-52320.html