Jurisdiction of the Court
Filling for divorce in Washington State requires jurisdiction of the court on one of the parties. Not all of the issues in a dissolution, separation or declaration of invalidity action need be addressed in one action. This is referred to as “divisible divorce”. The court may have jurisdiction to affect the status of the marriage (such as grant a decree of dissolution) without having jurisdiction to divide property, order maintenance or child support or decide the residential placement of a child or decide on a parenting plan.
In a family law case, jurisdiction should be considered in light of the issue being litigated. The following questions should be asked:
(1) Does the court have jurisdiction to dissolve the marriage or otherwise affect the status of the marriage?
(2) If it does, does it also have jurisdiction to divide the property, to award spousal maintenance or child support?
(3) Does the court have jurisdiction to decide the residential placement (custody) of children?
The first question depends on this state's nexus with the marriage. The second question depends on whether there is personal jurisdiction over the parties. The third question depends generally on the child's connection with the state.
Jurisdiction to Affect the Status of the Marriage
In personam (personal) jurisdiction over both spouses is not necessary in a dissolution action involving only the status of the marriage. A decree changing the marital status of a couple is viewed as an action in rem (property, thing, status). A Washington trial court has jurisdiction to affect the status of the marriage, by dissolving a marriage, if one of the spouses is domiciled in Washington or is in the armed forces and is stationed in Washington. Domicile is residence in fact, or physical presence and the present intent to make a place one's home. RCW 26.09.030, .040. If the petitioner is a service person stationed in Washington, he or she must be in Washington for the entire 90-day waiting period or the court will be without jurisdiction to grant a dissolution. Notice to the non-resident spouse would still be required.
Jurisdiction to Distribute Property and Order Support
To divide property or to order maintenance or child support, the court must have in personam (personal) jurisdiction over the affected person. Residency of one party, without more, is insufficient to give the court personal jurisdiction to dispose of property under RCW 26.09.080. Personal jurisdiction required over absent parent in support proceedings .
If both spouses are domiciled in Washington, then the court will have jurisdiction to decide property and support issues. If, however, one party does not reside in Washington, there may still be in personam jurisdiction under the Washington long-arm statute, RCW 4.28.185. The facts that may establish in personam jurisdiction over the respondent are:
¨ the parties lived in Washington during their marriage and the petitioner continues to reside here or is a member of the armed services stationed in this state,
¨ the parties may have conceived a child while within Washington, or
¨ the respondent committed a tortious act within Washington.
The cause of action must arise from the doing of one of the enumerated acts. RCW 4.28.185 (the long-arm statute).
Therefore, under RCW 4.28.185(1)(f), a Washington trial court will have jurisdiction to divide property (pursuant to RCW 26.09.080) where 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) if the respondent has lived “in a marital relationship within this state notwithstanding subsequent departure from this state.” Additionally, under the long-arm statute, even if one spouse has never lived in Washington, there is jurisdiction to dispose of real or personal property situated in Washington. RCW 4.28.185(1)(c).
The commission of the tortious act of nonsupport of children in Washington may permit the extension of in personam jurisdiction under the long-arm statute over an out-of-state parent in some cases. However, the long-arm statute will provide jurisdiction in such a case only when the non-resident spouse also has “minimum contacts” with Washington.
When a Washington court has jurisdiction, it may order a party to convey out-of-state real estate or property. However, the court of one state may not change the title of the real estate of another state by way of direct decree. The court may order one spouse to convey the out-of-state realty to the other spouse and enforce that decree with its contempt powers.
Actions authorized by RCW 26.09 are commenced by filing a petition or by service of a summons and petition on the respondent. No summons is necessary if both spouses sign a joint petition or if the respondent files a written joinder in the proceeding.
If there is a basis for in personam jurisdiction under the long-arm statute, personal service outside of the state may be allowed under RCW 4.28.180. Service by publication may be allowed under certain circumstances under RCW 4.28.100.
If the long-arm statute provides a basis for jurisdiction over an out-of-state spouse, then personal service of summons and petition may be made outside of the state. A party served outside of the state has 60 days (instead of 20) to answer. Personal service outside of the state is valid only when an affidavit is made and filed to the effect that service cannot be made within the state. The long-arm statute permits extraterritorial service of process (personal service) where a nonresident has had sufficient “contacts” with this state to satisfy due process. Notice, without proper service, is not enough to confer jurisdiction.
Service by publication is allowed in some circumstances. The requirements are found in RCW 4.28.100. Publication requirements are strictly construed. A bare recitation of the statutory factors to support service by publication is insufficient; the facts supporting the legal conclusions must also be included in the affidavit.
A separate action for disposition of property or liabilities, maintenance, or support may be brought after a decree of dissolution has been entered if the court granting the dissolution did not have in personam jurisdiction over the absent spouse at the time of the decree. RCW 26.09.060.
Jurisdiction to Decide Parenting Plans
Residential placement (“custody”) issues must be determined in accord with the subject matter jurisdiction requirements of the Uniform Child Custody Jurisdiction Act, RCW 26.27, and the Parental Kidnaping Prevention Act, 18 U.S.C. § 1738A.
Abatement of Dissolution
Generally, when one party dies, a dissolution action abates. However, the jurisdiction of the court does not necessarily cease for all purposes.
Third Parties in Dissolution
The trial court may not determine the rights of third parties who are not before the court in a dissolution action.
Before a default judgment can be entered, the petitioner must file with the court proof that proper service was made on the respondent.
If personal service was made in this state, the order of default may be requested 20 days after service; if personal service was made outside of Washington or by publication, then the order may be requested 60 days after the service or the date of first publication; and if service was by mail, default may be requested 90 days after the date of mailing.
If the respondent has appeared, then notice of default must be given. Also, if more than one year has elapsed since service was made, and the respondent has not appeared, notice of the motion for default must be given to the respondent.
In entering a default judgment, a court may not grant relief in excess of, or substantially different from, that described in the complaint or petition. A court has no jurisdiction to grant relief beyond that sought in the petition and to the extent a default judgment exceeds relief requested, that portion of the judgment is void.
Before a default decree can be entered, the petitioner must certify whether the respondent is a member of the military. Soldiers' and Sailors' Civil Relief Act of 1940. If the respondent is in the military, the court may appoint an attorney to represent the service person if that party does not appear and is not represented.
In a proceeding for dissolution, separation, declaration of invalidity or for property disposition following a dissolution, the trial court may issue a temporary restraining order or preliminary injunction restraining or enjoining any person from transferring, removing, encumbering, concealing or in any way disposing of any property except in the usual course of business or for the necessities of life and if so restrained or enjoined, require the person to notify the moving party of any proposed extraordinary expenditures made after the order is issued. RCW 26.09.060(2)(a). Such an order may be revoked or modified and it terminates when the final decree is entered or when the petition for dissolution, separation, or declaration of invalidity is dismissed. RCW 26.09.060(9)(b), (c). However, delinquent support payments accrued under a temporary order are not extinguished when the final decree is entered, unless the decree specifically states they are extinguished. RCW 26.09.060(10).
The trial court may give one spouse exclusive possession of the family home during the pendency of a dissolution action and the value of the occupancy may play a role in the other temporary decisions of the court concerning issues of child support, maintenance and allocation of debt payments.
The trial court may also issue a preliminary injunction which enjoins a party from changing the beneficiary of any insurance polices. The change of a beneficiary contrary to such an order can be voided. The trial court has the power to order a return to the status quo or to treat a transaction as invalid where an injunction has been violated. The death of one of the spouses while a dissolution is pending does not prevent a court from exercising that power.