A basic question that people often ask at the outset of a divorce is, does the Court have the ability, or jurisdiction, to hear their case, especially when one spouse lives in a state other than New Jersey?

New Jersey statutory law seems clear, but the outcomes of a jurisdictional question over whether the Court can hear the cause of action for divorce are often based on highly fact-specific scenarios. N.J.S.A. 2A:34-10 states, in relevant part to this blog entry, that a New Jersey Court may have jurisdiction over a divorce when either party to the marriage has “become, and for at least 1 year next preceding the commencement of the action has continued to be, a bona fide resident” of New Jersey. As noted by the Appellate Division in the recently decided Boghosian v. Boghosian, an intricate and interesting unreported (not precedential) opinion decided on August 17, 2009, New Jersey Courts interpreting the language of this law have concluded that “bona fide resident” is the equivalent of “domiciliary” and that either party must actually be domiciled in this State. 

The next question is, what is a “domicile” under New Jersey law ? The Boghosian Court quoted from earlier cases, stating that a “domicile is a place where a person has his true, fixed, permanent home, and principal establishment, and to which, whenever he is absent, he has the intention of returning.” Importantly, while a person can have many “residences,” there can only be one domicile, which requires (1) physical presence and (2) the “concomitant” (accompanying) “unqualified” intent to remain at that place “permanently and indefinitely.” The issue itself relies primarily on a person’s actual intention to obtain a new domicile, rather than merely the purpose behind doing so. 

The Appellate Division in Boghosian ultimately reversed and remanded the trial court’s decision that it had jurisdiction because the Husband lived in Hoboken for a year prior to filing for divorce because the trial court failed to look beyond the Husband’s place of residence to his actual intent to obtain a new domicile. The parties’ competing certified statements submitted to the trial court on the issue, including, but not limited to, details of voter registration, car insurance and driver’s license, led the Appellate Division to conclude that the question of jurisdiction should only have been answered after a hearing to determine if the Husband was a “bona fide” resident of New Jersey for at least 1 year prior to commencing the action.

 

The Appellate Division, however, then delved even deeper into the jurisdictional question as to the equitable distribution of property, even though the issue of domicile was to be remanded (sent back to the trial court for a hearing). The trial court had decided that it did not need personal jurisdiction over the Wife to render decisions on equitable distribution of the marital assets. Personal jurisdiction (over the “person”) necessitates “a sufficient connection between the defendant and the forum State [here, New Jersey] to make it fair to require defense of the action in that forum.” This type of jurisdiction can be personal (focusing on the cause of action’s direct relationship to the defendant’s contacts with the state) or general (looking to whether the defendant’s contacts, regardless of the cause of action, are “continuous and systematic.”) Whether or not personal jurisdiction exists is also often a very fact-specific inquiry.

 

The Appellate Division first rejected the Husband’s argument that N.J.S.A. 2A:34-8 was silent as to when New Jersey courts have jurisdiction to distribute marital property even though the statute made explicit reference to alimony, but not equitable distribution. It added that, when compared to the language of N.J.S.A. 2A:34-23, a related statute addressing, among other topics, child support, alimony and equitable distribution, 2A:34-8 encompassed all of these forms of relief and could involve the exercising of jurisdiction over non-residents when constitutionally permissible.

 

With that in mind, the Appellate Division then underwent a thorough constitutional analysis concluding that, where a court has jurisdiction to hear and decide on the cause of action for divorce, it still must also have a separate, independent ground to exercise jurisdiction for granting any relief incidental to the cause of action – including equitable distribution – not just alimony and support as argued by the Husband. While there need not be personal jurisdiction over both parties to dissolve a marriage so long as one person is domiciled in the state, a court must have personal jurisdiction to decide on personal obligations, except that, “if a defendant has property in a State [a court of that state] can [decide upon]” that defendant’s obligations, but “only to the extent of his interest in that property.” A court, though, can distribute all marital assets if it has personal jurisdiction over both parties. Also, in rem jurisdiction (over “the thing”) is sufficient to decide upon property located in New Jersey. 

 

Notably, the Appellate Division also found that New Jersey courts do not support the idea that they may exercise subject matter jurisdiction (over a particular given subject matter) to distribute marital assets solely because one spouse has been a “bona fide resident” for at least 1 year prior to commencement of the divorce. It therefore rejected the Husband’s argument that the Court need not have separate jurisdiction beyond that resulting from one party’s domicile to distribute the assets of a non-resident spouse.

 

Ultimately, the Appellate Division found no personal jurisdiction (personal or general) since the Wife had no connection with New Jersey with respect to the case. Specifically, the parties were not married in New Jersey, did not live in New Jersey during the marriage, the Wife never lived or worked in New Jersey, and she had no role in the Husband’s decision to live here. There was also no evidence of the Wife’s continuous and systematic contacts with New Jersey.

 

The Appellate Division also found that the trial court could not proceed with equitable distribution simply based on the presence in New Jersey (via offices or branches) of financial institutions where the parties maintained accounts. Essentially, the Appellate Division concluded that the location of the financial institutions in New Jersey through offices/branches was a fiction where no additional ties between the defendant (Wife) and every state in which the institution and the plaintiff (Husband) exist may be found.  Otherwise, the Wife would be under the jurisdiction of any state where the Husband was qualified to maintain an action for divorce and the financial institution was technically located.  This concept was against constitutional, traditional notions of "fair play and substantial justice."

 

EDITOR’S NOTE:  For the same reason, the New Jersey Court would not be able to determine alimony in this case.  Child support, assuming it was an issue, probably could not be heard in New Jersey either, but for a different reason.  The Uniform Interstate Family Support Act (UIFSA), a uniform law adopted by most, if not all of the states, sets forth jurisdictional standards for child support matters.  Under the facts as set forth in this case, it would seem that NY would be the proper state for jurisdiction of child support since the child was present there, and for other reasons..  ERIC S. SOLOTOFF

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