In What State Will (Or Should) Your Divorce Take Place?
We live in a mobile society. The parties lived together in one state and then one or both parties moved to another. Where then does the divorce occur? The following scenarios may help you resolve that issue. If nothing else, you can see what the pros and cons of the choice of law is.
The parties married and lived in Oregon for several years. Husband moves to California and satisfies the residency requirement there, files for divorce and obtains what amounts to a “status divorce” in California because Wife ignores the summons. The California judgment makes no provision for custody, support or the division of property because Husband recognized California did not have sufficient “contacts” with Wife to have jurisdiction over her.1
Question: Wife files for divorce in Oregon under ORS chapter 107, seeking an award of custody, child and spousal support, a division of assets and attorney fees. Husband files a motion to dismiss under ORCP 21A, claiming that Oregon has no jurisdiction to enter relief under the marriage statutes because the parties are no longer married. Who prevails?
Answer: Husband’s motion will be granted for the reasons he states. This leaves Wife with severely limited options.
Parties faced with this situation find themselves as co-owners of any property formerly held as tenants by the entirety. The question then becomes how to split the co-owned property. Such was the situation in Weller v. Weller, 164 Or App 25, 998 P2d 921 (1999), in which the husband moved to Idaho and filed for dissolution after meeting his six-week residency requirement. Idaho had jurisdiction over the marriage but did not have personal jurisdiction over the wife. A judgment was entered dissolving the parties’ marriage but it neither divided their assets nor awarded spousal support. The wife then filed a separate proceeding in Oregon that acknowledged that the parties were now divorced but sought an award of spousal support and division of the parties’ property. The husband successfully defeated the spousal support claim by arguing that the court’s authority derived solely from the dissolution statutes and that, once the parties were no longer married, that source of authority no longer applied. However, the court found that it had in rem jurisdiction to divide and award those items of personal property that were actually in Oregon, even though it had no personal jurisdiction over the husband. The underlying theory of in rem jurisdiction does not contemplate a typical personal judgment against a defendant but only a judgment to the extent of the defendant’s property within the state. The court held that its authority to divide property within the state does not depend on the parties’ status as married persons, citing as authority cases involving division of property between domestic partners and ORS 108.080. This statute, seldom used, provides:
“Should either the husband or wife obtain possession or control of property belonging to the other either before or after marriage, the owner of the property may maintain an action therefor, or for any right growing out of the same, in the same manner and to the same extent as if they were unmarried.”
Question: What options does Wife now have to recover the kind of relief she could have received in a divorce, now that she is single based on the California status divorce?
Answer: Oregon loses jurisdiction to resolve typical divorce related matters when the divorce has already occurred because it can only deal with these issues in the context of a divorce. Oregon will not assist a person who was already divorced in another state. Rodda v. Rodda, 185 Or 140, 152-53, 200 P2d 616, 202 P2d 638 cert. den. 337 US 946 (1949). Brown v. Brown, 249 Or 274 437 P2d 845 (1968) applying Rodda to child support obligation.
Wife can file for a division of some forms of property under a domestic partnership theory. Beal v. Beal, 282 Or 115, 577 P2d 507 (1978). While Oregon does not recognize common law marriage, meaning domestic partners are not subject to the statutes governing the distribution of marital property (including the presumption of equal contribution to property acquired during the marriage because), the court can distribute property owned by parties in a non-marital domestic relationship provided they do it in accordance with their original intent utilizing the court's equitable powers. Wilbur v. DeLapp, 119 Or App 348, 351, 850 P2d 1151 (1993).
Wife can also file for custody and child support under ORS chapter 109, the statutory provisions relating to unmarried couples.
Question: How should Wife have proceeded once she was served with the California summons, assuming that she does not have sufficient contact with California for it to assume personal jurisdiction over her?
Answer: Wife will need to hire an attorney in California to file a special (limited) appearance on her behalf, and object to California dissolving the marriage on the grounds that it is an inconvenient forum.
The parties married and lived in Oregon for several years. Husband moves to California and satisfies the residency requirement there. Wife files for divorce in Oregon the day before Husband files for divorce in California.
Question: Which case has priority?
Answer: Oregon clearly has jurisdiction over both the marriage and the parties as well as in rem jurisdiction over any property that may be in Oregon. California has jurisdiction over the marriage because Husband has met the residency requirement there but, it may not have jurisdiction over Wife, depending on the level of her “contacts” with California for jurisdictional purposes. The risk for Wife is the possibility that California will enter a status only divorce as described in scenario 1.
Question: Does it matter who either filed first or served first?
Answer: Oregon has resolved the issue of which county a case proceeds in if the parties file in separate counties but make service at different times. The county where the action is first filed will be the county where the divorce takes place, regardless of which party first served the other. Matlock v. Matlock, 87 Or 307, 170 P. 528 (1918). Under ORCP 21 A(3), a party may move to dismiss an action because "there is another action pending between the same parties for the same cause."2 Unfortunately, Oregon has never resolved this same question as it pertains to who filed first versus who served first when it comes to inter-state issues. A practitioner faced with this issue needs to determine what the law is in the state where the other divorce is pending. California, for example, has ruled that jurisdiction is based in the state who first made service.
Question: What should Wife do to protect her ability to enforce her marital rights?
Answer (A): Wife can retain the services of an attorney in California and allow the divorce to proceed there. The downside for Wife is that it truly is logistically an inconvenient forum for her (fly down, hire an attorney, stay in a motel while waiting for a hearing, getting witnesses from Oregon to California, etc.). The law is also disadvantageous to her. For example, child support in California ends on the child’s 18th birthday or when the child graduates from high school (but not past age 19), whichever first occurs. California allows an award of joint custody over a parent’s objection. Spousal support terminates automatically upon remarriage. There are property issues of concern as well. Future enforcement will also be an issue. Wife must go to California to file a contempt action against Husband for his failure to comply with any provision of the judgment whereas Husband can walk across the street to his very convenient, local courthouse to file a motion to modify to give himself more parenting time, or even custody any time he pleases, forcing Wife to defend herself in California.
Answer (B): Another possibility presents itself because California allows for the bifurcation of property issues in dissolution cases, although Oregon does not. Bifurcation allows the divorce to be granted in California (status divorce), leaving the other issues (property, custody, support) to be decided at another time. If, and only if, an Oregon divorce proceeding is pending when the California “status divorce” is granted, Oregon will give full faith and credit to the California judgment while at the same time allowing Wife to proceed with her pending Oregon divorce. In this manner, Wife may be able to obtain the relief the California court could not award because California did not have personal jurisdiction over her. Anderson and Anderson, 102 Or App 169, 174, 793 P2d 1378 (1990). In Mackie and Mackie, 113 Or App 273, 276, 832 P2d 1240 (1992), the court described the holding in Anderson as follows:
“We held that, when a foreign decree is rendered during the pendency of a dissolution proceeding in Oregon, registration of that foreign decree confers jurisdiction on the Oregon court to award the additional forms of relief listed in ORS 107.105.”
Wife should still file a special appearance in the California proceeding so that all of the attorneys involved (presumably four because each party has an attorney in each state) can coordinate what is happening where.
CAVEAT: Oregon may allow bifurcation but I would not want to be the attorney who has to defend bifurcation on an appeal nor do I believe it is a smart step to take, for any number of reasons. In Berg and Berg, 211 Or App 703, 706, 156 P3d 171 (2007), the parties bifurcated the issues before the court, first entering a limited judgment which dissolved the parties’ marriage leaving unresolved child support, parenting time and insurance matters. The appellate court determined that the “limited” judgment was misnamed and actually should have been an appealable “general” judgment because it reflected the concluding decision on the ultimate request for relief (dissolution of a marriage). In dicta, the court found that the fact that there remained important ancillary matters for resolution did not preclude the entry of a judgment that dissolved the parties' marriage. Oregon law allows bifurcation of other issues. ORCP 53 B allows the trial court to “order a separate trial of any claim, cross-claim, counterclaim, or of any separate issue or of any number of claims, cross-claims, counterclaims, or issues” when separate trials will be conducive to expedition and economy. ORS 107.105(1) clearly allows the trial court to determine custody prior to deciding other issues. The problem for me is that each of issues left unresolved in Berg dealt with matters the court could modify post-judgment. The court does not have the authority to modify property division and the court loses jurisdiction once the general judgment is entered. Thus it would seem impermissible to bifurcate property issues with the intent that they be dealt with after entry of the judgment to dissolve the marriage. Plus, there are some benefits that are available only to married parties as noted in response A-2 above and, with bifurcation, it is possible that the marriage ends before those matters can be dealt with. Health insurance is an example. The plan participant can only provide coverage for a spouse and she no longer has a spouse so he comes off the health insurance policy in accordance with policy’s terms. Survivorship issues are also problematic. For example, how do you get around ORS 112.315, the statute that creates a presumption that a former spouse predeceased a party if the former spouse is still named in the will?
Question: During a suit with contested multi-state jurisdiction, your client is facing an out-ofstate judgment. Is it better strategy to make a special appearance to raise the jurisdiction issue in that other state or to allow the default to be taken and then collaterally attack the judgment later when the opposing party attempts to enforce it in your state?
Answer: A judgment is void and may be collaterally attacked if the court rendering it failed to have subject matter jurisdiction. State ex rel Pennsylvania v. Stork, 56 Or App 335, 338, 641 P2d 660 (1982). A wise practitioner will never rely on successfully making this claim because there are just too many risks. The better strategy is to file a special appearance in the other state to oppose the judgment, but make sure that you have a good lawyer in that state quickly because an improperly filed special appearance is treated as a general appearance. For example, an ORCP 21 motion to dismiss is the way the “special appearance” issue is raised in Oregon.
The parties married and lived in Oregon for several years. Husband moves to California and satisfies the residency requirement there, files for divorce and obtains a judgment by default because Wife failed to file an appearance or objection. The default judgment provides Husband with substantive relief rather than just a status divorce.
Question: Is the California judgment binding on Wife?
Answer: Yes. The California judgment is binding until it is vacated or set aside. This is true even though, as previously stated, the court may not enter an order affecting a nonresident spouse's monetary obligations or rights without some act by the nonresident spouse which confers personal jurisdiction over her, such as consent or a general appearance in the action. Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561 (1948).
Question: Is the issue actually whether the California court had sufficient contacts so as to have personal jurisdiction over Wife?
Answer: Yes. Although the judgment is binding, Wife can attack its substantive provisions claiming that the court did not have personal jurisdiction over her and therefore could not enter certain provisions of relief the judgment may have granted over an above dissolving the marriage. California law on the personal jurisdiction issue will control, but if the situation occurred in Oregon, the party claiming lack of jurisdiction needs to file promptly, or risk waiving the defense. Adams and Adams, 173 Or App 242, 251, 21 P3d 171 (2000).
Question: What if the parties had been married and lived in California, with Husband moving to Oregon and filing for and obtaining a divorce that contained substantive provisions dividing property in California. Can Wife attack the judgment after its entry?
Answer: Yes. Since the court had no jurisdiction over Wife, it could not have jurisdiction over the property owned by the parties in California. Wife can file an appeal to that portion of the judgment. See Henry and Henry, 81 Or App 426, 725 P2d 943 (1986), where this exact scenario played out. But recognize that Wife filed her appeal within thirty days of the entry of the Oregon judgment.
Wife lives in Oregon and Husband lives in Arizona. Wife meets the Oregon residency requirement to file for divorce but Husband does not have the requisite minimum contacts with Oregon for the Oregon court to have personal jurisdiction over him.
Question: Can Wife file, serve Husband in Arizona, and just ignore the fact that Oregon has no personal jurisdiction over Husband?
Answer: Yes, but there are risks and uncertainty involved. First and foremost, Husband has the right to object, subjecting Wife to a motion to dismiss.3 Second, Husband may at any time in the future seek to vacate any substantive provisions of the judgment based on the lack of jurisdiction. Husband’s claim could be made in the Oregon court to attack the judgment directly, or in Arizona collaterally when Wife records the Oregon judgment there in an effort to support it. As a practical matter, judgments are often entered against individuals over whom the court has no jurisdiction and that party does not care for any number of reasons or the party may never become aware of the right to object on technical jurisdictional grounds, complying with the judgment in the belief that it is enforceable against him. Again, the question for the practitioner is one of expediency versus potential future risk.
Question: How can Wife obtain personal jurisdiction over Husband?
Answer: The obvious solution is to ask Husband to consent to the court’s jurisdiction, either signing a formal document wherein he consent or perhaps even signing a stipulated judgment.
Question: Can Husband fight the judgment by claiming that Oregon had no jurisdiction over him when Wife tries to enforce it if he filed a general appearance in Oregon?
Answer: No. A divorce decree based on an unchallenged finding of requisite jurisdictional grounds rendered by a state court in a proceeding in which the defendant appeared and participated and was accorded full opportunity to contest the jurisdictional issues, is not susceptible to collateral attack in the courts of the state that rendered the decree, will be accorded full faith and credit by the courts of other states and will not be subject to collateral attack. Sherrer v. Sherrer, 334 US 343, 68 S Ct 1097, 92 L Ed 1429 (1948).
Husband and Wife were married in Oregon. Husband is in the military and is stationed in Virginia. Wife and the children resided there with him until they separated, five months ago. Wife has now moved to another part of Virginia. Wife intends to move back to Oregon as soon as possible, but she has no current address here. The military allows its personnel upon entry into the service to designate a home state for all purposes, with that home state designation being effective regardless of where the military personnel may actually be living. The home state designation can be changed at any time but it seldom is. Oregon in this scenario is the home state for both parties.
Question: Can Wife (or Husband) file for divorce in Oregon?
Answer: Yes. To satisfy the requirements of ORS 107.075, at least one party to the dissolution proceeding must be domiciled in this state at the time the dissolution petition is filed, and must have been so domiciled continuously for a period of six months prior thereto. So long as Oregon is the state of domicile of at least one party at the time a marital dissolution proceeding is commenced, actual residency in this state at that time is not required for jurisdictional purposes under ORS 107.075.
Oregon is Wife's state of domicile because Wife had previously resided in this state with the intent to remain in Oregon permanently; to the exclusion of permanently residing anywhere else. Although Wife is presently residing in Virginia, has done so for the past five months, and will continue to reside there for the time being, she intends to move back to Oregon as soon as possible. She does not intend to remain permanently in Virginia or any place other than Oregon, nor has she manifested any intent to do so.
Oregon has personal jurisdiction over Husband because he has designated Oregon as his home state with the military. This allows Oregon to deal with all substantive issues in the divorce, even though Husband may not be here, even if the judgment is entered by default.
CAVEAT: The Service Member’s Civil Relief Act (SCRA) provides protection for persons on active military duty against default judgments and/or will stay the proceeding for a certain amount of time. See ServiceMember’s Civil Relief Act, 50 U.S.C. App ?520-521 (2003).
Question: What if Wife (or Husband) wants to file in Virginia?
Answer: Either party can file in Virginia so long as the party met Virginia’s residency requirement. The party filing the proceeding is able to obtain personal jurisdiction over the other party because that party is there in the state.
Question: Would Wife be able to file in Oregon (whether or not she lives here) if Husband was stationed in Denmark?
Answer: Yes, but as a practical matter Wife will probably want to file where she actually lives, whether that be in Virginia (assuming she wants to stay there) or in Oregon (if that is where she wishes to ultimately reside). The logistical concerns described in answer A-6a. Wife presumably wants to choose the forum that will, in the long term, be the most convenient for her. The caveat for service members on active duty also applies here.
Question: Under ORS 107.075, are domicile and residency the same thing in Oregon?
Answer: No. ORS 107.075 makes clear that at least one party to the dissolution proceeding must be a resident of or be domiciled in this state at the time the suit is commenced and continuously for a period of six months prior thereto. However, it is domicile, not residency, that is the determining factor. The fact that a party lived in Oregon continuously for six months prior to the filing is not enough; ORS 107.075 requires that the party be domiciled here as well. To be domiciled in Oregon, the person must have resided here at some point in time that coincided with the intent to remain here permanently, to the exclusion of permanent residency in some other state. “Domicile” is a matter of individual choice and intent. A person becomes “domiciled in this state” by residing in Oregon, however briefly, with the concurrent intent to remain in Oregon permanently and with no intent to permanently live elsewhere. “To constitute domicile there must be both the fact of a fixed habitation or abode in a particular place and an intention to remain there permanently or indefinitely.” Elwert v. Elwert, 196 Or 256, 265, 248 P2d 847, 36 ALR2d 741 (1952). A person who has never resided in Oregon cannot become “domiciled in this state,” regardless of the person’s future intent to do so. Nor can a person become domiciled in this state simply by residing here, regardless of the length of stay, without the intent to remain here permanently to the exclusion of permanently residing elsewhere. Thus an individual who in Oregon for six months working on a construction project is not necessarily domiciled here for divorce purposes but can become so by announcing her intent to stay indefinitely. Added weight can be shown by registering to vote, getting an Oregon driver’s license, etc.
While domicile requires residency in order to be established, residency does not require domicile. A person may be a “resident” of Oregon continuously for six or more months yet not be “domiciled” in this state. However, a person cannot be domiciled in Oregon without ever having been a resident of Oregon. In essence, the equation is as follows: Residence + Intent = Domicile.
A person can have only one domicile at any one time. The previous domicile continues until a new domicile is established. Doyle v. Doyle, 17 Or App 529, 522 P2d 906 (1974). Consequently, if a person who is domiciled in this state departs Oregon and resides elsewhere, Oregon remains the person’s state of domicile so long as the absence from Oregon is not coupled with an intent to establish a new domicile elsewhere. The best example of this is the military dynamic set forth in this scenario.
Husband and Wife were in the military but took their discharge while still out of the country and are now both living in Denmark working for an American company. They have been out of the military for three years. Their child was born in Denmark and has never lived in the United States. Husband was originally from Oregon and his parents still live here. Wife is from Virginia.
Question: Can Husband file for divorce in Denmark? Can Wife?
Answer: The military fact is a red herring and does not impact the answer. Either Husband or Wife, living in a foreign country, can file for divorce in that foreign country provided the person filing meets that country’s residency and other requirements for a divorce. There may be some real advantages (or disadvantages) to the person who files for divorce that are cultural as well as legal in nature. For example, some countries always award custody to the father, others never award support, etc. This cultural and legal reality is one of the reasons that a person married to a foreign national is justifiably nervous when the spouse takes the children to see grandparents in say, Iraq. The parent refuses to return, files for divorce in Iraq, and obtains custody of the children. This is the stuff that television movies are made of. Many practitioners are not aware that ORS 109.035 allows the court to enter an order requiring a parent who is taking a child to a foreign country to provide security, bond or other guarantee if there is a concern that the parent will not return with the child.
Question: Could either party file in Oregon? Does it make a difference where the party is living?
Answer: Again, the military fact is a red herring. A party wanting to file in Oregon must meet Oregon’s residency requirements. The right that military personnel have to carry their home state with them as explained in scenario 5 ceases to apply when the person leaves the military. That impacts both the residency requirement for the person filing and the jurisdiction coverage for the person who is being sued for divorce as explained previously.
Question: What if Wife lives in Oregon and Husband lives in Germany. How does Wife obtain a divorce?
Answer: Subject matter jurisdiction is founded on domicile in dissolution cases. Williams v. North Carolina, 317 U.S. 287, 297-303, 63 S Ct 207 (1942). Only one party needs to be domiciled within Oregon for an Oregon court to enter a status divorce. See scenario 1. However, as described in earlier scenarios, the Oregon court must first obtain personal jurisdiction over Husband before it impose substantive obligations upon him such as child and spousal support, division of property, etc. Adams and Adams, 173 Or App 242, 245, 21 P3d 171 (2001); Horn and Horn, 97 Or App 177, 180, 775 P2d 338 (1989). Whether or not Oregon has jurisdiction to award custody of the children depends on whether or not the facts satisfy the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act, ORS 107.701 et. seq. and is not addressed in these materials.
The parties were married in Italy. Wife is an Italian citizen and Husband is an American citizen. They currently live in Oregon and have lived there for seven months.
Question: Can the either or both of the parties file for divorce in Oregon?
Answer: Yes. Citizenship is not the critical factor. Rather, what counts is residency or domicile in Oregon at the time the marital dissolution action is commenced and continuously for a period of six months prior thereto. ORS 107.075(2).
A person is domiciled where the person (a) resides and (b) intends to remain permanently, to the exclusion of a domicile elsewhere. Here, both parties are domiciled in Oregon for purposes of jurisdiction under ORS 107.075 even though Wife is a non-immigrant alien under federal immigration laws. Federal immigration law does not prevent states from allowing nonimmigrant aliens such as Wife to establish a domicile of choice for purposes of jurisdiction. See Pirouzkar v. Pirouzkar, 51 Or App 519, 525 626 P2d 380 (1981).
Question: Would the answer be the same if Wife returned to Italy after the parties separated and Husband files for divorce in Oregon?
Answer: Yes. Husband (or Wife) can file for divorce in Oregon because the residency requirement has been met. All of the concerns about personal jurisdiction as discussed between states applies as well when talking about foreign countries. Wife theoretically has sufficient “contacts” with Oregon to give it personal jurisdiction over her since she lived here for seven months before returning to Italy.
Question: Would the answer be the same if Husband and Wife both married and separated while on a trip to Italy, with Husband moving back to Oregon and filing for divorce in Oregon?
Answer: Yes. Neither citizenship nor place of marriage is a critical factor. It is important that the marriage is deemed a valid marriage in the country where it took place. Thus, if Botswana deems parties to be married if the man ties his cow to the woman’s hut, then Oregon will recognize the marriage as being valid and proceed to dissolve it.
Husband meets the Oregon "residency" requirement of ORS 107.075 and continues to be domiciled in this state. The fact that Wife left Oregon and returned to Italy does not impact Husband’s ability to file. The fact that Wife lived in Oregon for seven months before leaving the state should be sufficient for Oregon to confer personal jurisdiction over her so that the final judgment can provide for full and complete relief rather than just a status divorce. Husband does not need to prove that Wife was domiciled here to gain jurisdiction over her. Domicile is important only for the person who is filing the divorce proceeding.
Husband and Wife married, living together in Montana up to the point where they separated. Husband, believing that Oregon’s divorce laws would be more advantageous to him, moved to Oregon, with the intent to reside here for 6 months (fulfilling the residency requirement), obtain a divorce, and then move back to Montana.
Question: Can Husband obtain a divorce in Oregon?
Answer: No. Judicial power to grant a divorce is grounded on domicile, not residency. Williams v. North Carolina, 325 US 226, 65 S Ct 1092, (1945). So, because Husband moved to Oregon only with the intent to acquire a divorce and then to move back to Montana, he does not have the requisite domicile in Oregon, so he cannot acquire a divorce in Oregon.
Husband and Wife both live in and are filing for divorce in Oregon. Property may be owned in other states. What difference, if any, does the location of the real and personal property make in the decision about where the divorce case should occur?
Question: Husband owns property in Washington. Can Husband ask that the Washington property be excluded from the Oregon judgment?
Answer: No. Oregon dissolution law applies in the determination of how to most equitably divide property in an Oregon dissolution case, regardless of the state in which the asset is actually located. Day and Day, 137 Or App 264, 269, 904 P2d 171 (1995); Jacobs and Jacobs, 82 Or App 333, 336, 728 P2d 89 (1986).
Question: At about the time of separation, Husband gets an inheritance from his father in California. Can California’s community property law be an obstacle for Wife to share in this inheritance?
Answer: No. If Oregon has personal jurisdiction over both parties and subject matter jurisdiction over the status of the marriage, then it has jurisdiction to divide of assets of the marriage, regardless of where the assets are actually located. This type of factual scenario is one that may prompt Husband to move to another state to file his divorce, as the law of that state may be much more favorable for his argument to keep his inheritance free from any claim by Wife.
Question: Husband is the trustee of a trust that was created prior to the marriage, the trust corpus for which is in another state. Husband was supposed to distribute the trust before the marriage but did not do so. Can Wife make a claim that the trust should be part of the Oregon court’s division of assets?
Answer: A conditional yes. Husband, as the trustee, should be joined as a party to the action in his representative capacity. Once joined as a party, the Oregon court can make rulings that require Husband take action in his capacity as trustee. The court in a dissolution proceeding generally may not directly control the disposition of a trust that is established by trustees other than the parties and independently of the proceeding, at least when there are beneficiaries other than or in addition to husband and wife. That principal is not affected by the fact that the husband or wife is the trustee of the trust. The court may, nevertheless, consider the parties’ interests as beneficiaries of the trust and may treat those interests in much the same way as the parties’ other individual or marital property, short of ordering direct distribution from the trust. Jones and Jones, 158 Or App 41, 973 P2d 361, adhered to on recons., 159 Or App 377 (1999).