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Wednesday, November 3, 2010

Can I be sued for Divorce in Massachusetts if I don't live there but my spouse does?

If your spouse has lived in Massachusetts for one year or can establish that the breakdown of the marriage occurred in Massachusetts (as explained in a previous post) then they can obtain a divorce in Massachusetts. However, they will not be able to obtain personal jurisdiction over you and your property except in specific circumstances. In other words, Massachusetts can dissolve the marriage, but unless the Massachusetts courts can establish personal jurisdiction over you they cannot order you to transfer property that is outside Massachusetts or pay alimony.

Jurisdiction over the Dissolution of the Marriage

The United States Supreme Court in Williams v. North Carolina, 317 U. S. 287 (1942), decided that each State can determine the marital status of any spouse domiciled in that state, even if the other spouse is absent. Williams v. North Carolina, 317 U. S. 287, 298 (1942). In addition, the Court decided that under the Full Faith and Credit Clause that divorce decree must be honored in other states including the state where the other party lives. Id. at 299.

This means that if your spouse meets the requirements to obtain a divorce in Massachusetts then that Divorce Judgment ends your marriage legally in all states.

Jurisdiction over the Person

Having jurisdiction over the marital status of their residents, does not also extend to the property of out of state residents. In order for Massachusetts to have jurisdiction over the division of property outside the Commonwealth, the Massachusetts Court must have jurisdiction over the person of the Defendant. Personal Jurisdiction can be accomplished in a number of ways other than residency but is limited to very specific circumstances. M.G.L. ch. 223A Section 3, commonly referred to as the "long-arm statute" describes these circumstances as follows:

"(a) transacting any business in this commonwealth;

(b) contracting to supply services or things in this commonwealth;

(c) causing tortious injury by an act or omission in this commonwealth;

(d) causing tortious injury in this commonwealth by an act or omission outside this commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this commonwealth;

(e) having an interest in, using or possessing real property in this commonwealth;

(f) contracting to insure any person, property or risk located within this commonwealth at the time of contracting;

(g) maintaining a domicile in this commonwealth while a party to a personal or marital relationship out of which arises a claim for divorce, alimony, property settlement, parentage of a child, child support or child custody; or the commission of any act giving rise to such a claim; or

(h) having been subject to the exercise of personal jurisdiction of a court of the commonwealth which has resulted in an order of alimony, custody, child support or property settlement, notwithstanding the subsequent departure of one of the original parties from the commonwealth, if the action involves modification of such order or orders and the moving party resides in the commonwealth, or if the action involves enforcement of such order notwithstanding the domicile of the moving party."

Under section (g), the determination of what is an "act giving rise to such a claim" has been defined rather broadly in two Massachusetts cases, Miller v. Miller, 448 Mass 320 (2007) and Cherin v. Cherin, 72 Mass. App. Ct. 288 (2008), and can include "an exchange of words between husband and wife" that "leads one or both of them to conclude the marriage is over" or engaging in "a persistent course of conduct, by committing various acts in Massachusetts, which created for the wife the impression that he would soon be moving to Massachusetts to retire with her, even though he secretly had no intention of actually doing so."

If you are concerned about whether or not you have committed any "acts" that might give rise to such a claim you should discuss your case with an attorney with experience in these types of cases.

Jurisdiction over the Person for Custody and Child Support Orders

Although the Court may not have jurisdiction over you for the purpose of ordering alimony or property division, if you have children with your spouse and those children now live in Massachusetts, Massachusetts may have jurisdiction over custody/visitation orders and child support orders.

After children live in Massachusetts for six (6) months, under the current law, Massachusetts obtains jurisdiction over any custody or visitation issues regardless of whether any previous custody orders exist (although the orders would be considered before any changes are made).

If a previous support order exists, Massachusetts may have jurisdiction over that order depending on the circumstances. If no previous support order exists then a Massachusetts Court may obtain personal jurisdiction over a non-resident to make support orders under much more lenient standards than in the long-arm statute above. This jurisdiction can be obtained under the Uniform Interstate Family Support Act (UIFSA) which has broad standards such as personally serving you within the Commonwealth or if you ever resided with the child in the Commonwealth, etc.

If you are concerned about whether or not Massachusetts may have jurisdiction over your case under UIFSA, you should discuss your case with an attorney with experience in these types of cases.

To schedule a one-hour Free consultation with Kelsey & Trask, P.C. click here or call (508) 655-5980.

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