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JURISDICTION

Often international family will start with the question does a court in a certain country have jurisdiction over the issue/subject matter or the parties. The following are common questions and responses to those questions.

If I get married in another country can I get divorced in WA?

Washington has jurisdiction to grant a divorce if there is a sufficient nexus with the state. Domicile is such a nexus. RCW 26.09.030 uses the term”residence” but this has been interpreted to mean ‘domicile’ (see In re Marriage of Strohmaier, 34 Wn. App. 14,659 P.2d 534 (1983)). Domicile is defined as “residence in fact coupled with the intent to make a place or residence one’s home...’ (see In re Marriage of Strohmaier, 34 Wn. App. at 17; and also Stevens v Stevens, 4 Wn. App. 79, 480 P.2d 238 (1971)).

Therefore, if a party has his/her home in the state of Washington, he /she can file for divorce.  Only one party needs to be a resident (either the petitioner or respondent).

Special rules are provided in RCW 26.09.030, 040, to establish domicile for divorce in military families.

If I file for a divorce in Washington can I obtain an order for maintenance and child support against my spouse who lives in another country?

The answer depends on whether WA, in this case, has in personam jurisdiction over the spouse. This analysis generally depends on sufficient connections (unless a person concedes personal jurisdiction). If the required in personam jurisdiction is not present, an order is void in Washington (see In re Marriage of Powell, 84 Wn. App.432, 438, 927 P2d. 1154 (1996)).

If I file for a divorce in Washington can I obtain an order awarding property to me, against my spouse who lives in another country?

Where a person has insufficient connections with this state to permit in personam jurisdiction, a court, which could dissolve the marriage due to  the other party’s residency, cannot divide property (see In re Marriage of Tsarbopoulos, 125 Wn. App.273,104 P.3d 692 (2004)).

If my spouse is not a resident of the State of Washington is there any way I can get the WA court to accept that it has in personam jurisdiction over him/her?

The answer to this question depends upon whether Washington’s Long-Arm Jurisdiction applies. Long-arm jurisdiction is the ability of a state to have personal jurisdiction over a person who is not resident in the state. Washington has two relevant long-arm statutes – RCW26.21A.100 and RCW 4.28.185

RCW 26.21A.100 (Uniform Interstate Family Support Act) authorises courts to exercise personal jurisdiction over non residents in a support proceeding under specified circumstances listed in the section.  The list covers a wide spectrum of circumstances including a very broad coverage under subsection (h) which provides for ‘any other basis consistent with the Constitutions of this state and the United States for the exercise of personal jurisdiction’ (RCW 26.21A .100 (h)).

RCW 4.28.185 provides that the following persons are submitted to personal jurisdiction:

‘(1) Any person, whether or not a citizen or resident of this state, who in person or through an agent does any of the acts in this section enumerated, thereby submits said person, and, if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of said acts:…

……

          (e) the act of sexual intercourse within this state with respect to which a child may have been conceived;

          (f) living in a marital relationship within this state notwithstanding subsequent departure from this state, as to all proceedings authorized by chapter 26.09 RCW, so long as the petitioning party has continued to reside in this state or has continued to be a member of the armed forces stationed in this state.’

When will the State of Washington make orders relating to child custody?

The Uniform Child Custody Jurisdiction and Enforcement Act 1997 (UCCJEA), codified in Washington by Chapter 26.27 RCW, is the exclusive Washington State source for custody subject matter jurisdiction in a Washington State Court (RCW 26.27.201, .221). (See in addition, the discussion of the Hague Convention below).  

At the time of writing, the UCCJEA has been accepted by almost all of the states in the USA.

The UCCJEA premises jurisdiction on the state’s contacts with the child, not in personam jurisdiction over the parent. (This is in contrast to parentage/paternity actions under RCW 26.26.515, which requires in personam jurisdiction over the person who is to be adjudicated a parent. Note that this can lead to a situation where a parent is sued for support under a parentage action but that court does not have jurisdiction over the child so a visitation action under UCCJEA may have to be started in the child’s state).

The court in Washington must treat foreign countries in the same way as it would a sister state in determining whether it must defer jurisdiction to the foreign ‘home state’ state (RCW 26.27.051).

Generally (with a few exceptions), under the UCCJEA the home state must exercise jurisdiction in custody proceedings. Home state is defined as the state where the child has lived with a parent or person acting as a parent since birth or for six consecutive months immediately before the commencement of the custody proceedings (28 U.S.C. Section 1738A (b)(4); RCW26.27.021(7)).

If neither state fits the home state definition, the court can determine jurisdiction based on the significant connection basis (RCW 26.27.201(1)(b)).

The court shall (with some exceptions listed in the section) decline jurisdiction based on ‘unjustifiable conduct’ (RCW 26.27.271). An example of this could be a parent wrongfully taking a child from the original home state. See, for example, In re Marriage of Ieronimakis 66, Wn. App. 83, 831 P.2d. 172 (1992).

The court may also decline to exercise jurisdiction on the grounds of inconvenient forum (RCW 26.27.261).

Is it true that in the State of Washington the courts might decide that there can be a divorce in one country, child support in another and child custody be decided in yet another?

This is conceivable owing to the divisible nature of divorce in the State of Washington. As one can see from the jurisdictional discussions in these materials, one party could live in Washington and be entitled to a divorce; the other party might live in a foreign country with no connection to Washington and so any financial order against that person could not be made in Washington. However the qualifications for jurisdiction over the child might not be met in Washington.