Subject Matter and Personal Jurisdiction in California Divorces

The court's power to grant a divorce is called "subject matter" jurisdiction, meaning it has jurisdiction to do that.

California can grant a divorce if either spouse lives in the state, but both spouses do not need to live there.

However, for the court to have this jurisdiction, under California Family Code Section 2320(a), one spouse must have lived in California for at least six months and in the county where the divorce is filed for at least three months before filing. This rule ensures the court only grants divorces when one spouse has a strong connection to California.

There is an exception for same-sex marriages. California Family Code Section 2320(b) states if a same-sex couple married in California but now lives in a place that doesn't allow same-sex divorces, they can still get divorced in California without meeting the usual residency rules. This helps couples who married in California but moved somewhere that doesn't recognize their marriage or offer a way to divorce.

Although California can end a marriage involving a nonresident spouse, that does not automatically mean it has the jurisdiction to decide child custody, child support or spousal support, property division, or attorney's fees.

Jurisdiction for Child and Spousal Support and Attorney's Fees Orders

Just because a California court has the jurisdiction to grant a divorce doesn't mean it automatically has the power to make orders about child or spousal support or attorney's fees. For that, the court needs "personal jurisdiction," which means jurisdiction over the person responding to the case (the respondent).

If the respondent lives out of state, they can challenge the court's jurisdiction by filing a motion to "quash" or stop the case.

For a court to have jurisdiction over someone outside the state, that person must have enough "minimum contacts" with California so that handling the case there is fair. However, if the person is personally served while in California, the minimum contacts rule doesn't apply.

What are "Minimum Contacts?

The most common ways to establish personal jurisdiction are:

  1. Being physically present in California
  2. Having a home or residence here
  3. Agreeing to the court's jurisdiction (consent)
  4. Taking part in a case (appearance)
  5. Running a business in the state
  6. Engaging in conduct within the state or doing something outside of it that affects the state

Examples of Personal Jurisdiction Cases

Over the decades, different cases have been published in our higher courts that give examples of when personal jurisdiction is proper. Here are a few of those examples.

  • The court found personal jurisdiction even though the husband hadn't lived in California for 21 years. The couple had lived in California for six years, where two of their children were born. They owned property, and the husband kept a bank account and driver's license in the state.
  • A father living in New York wasn't subject to California's jurisdiction just because he allowed one child to live in California during the school year.
  • A nonresident husband abandoned his family, forcing them to move to the wife's parents' home in California and depend on public assistance. The court claimed jurisdiction over him.
  • A father who sent his children to California for a visit and mailed a custody agreement to their mother in the state wasn't under California's jurisdiction.

Jurisdiction for Orders on Assets and Debts

We now come to the subject of dividing property in a divorce. When a state court wants to claim jurisdiction over a person or their property, it must meet the "minimum contacts" rule. This means the person or property must have enough connection to the state to handle the case fairly and reasonably.

A person owning property in a state may help establish some connection with the state. However, just owning property alone isn't enough for the court to claim full jurisdiction over the owner.

For dividing a military pension, meeting the minimum contacts rule is not enough. Under federal law (the Uniformed Services Former Spouses' Protection Act), the court can only have jurisdiction if one of the following is true:

  1. The person lives in the state for reasons other than military duty,
  2. The person is domiciled in the state, meaning they currently live there as their permanent home,
  3. The person consents to the court's jurisdiction.

In one case, a California court had the jurisdiction to make a child support order because the minimum contacts rule was met, but it couldn't divide the person's military pension because the stricter federal rule wasn't satisfied.

The minimum contacts rule also isn't enough to divide "quasi-community property," which is property one spouse bought while living outside California that would be community property if bought in California. California can only apply its quasi-community property laws if both spouses move to California and one files for divorce after they are domiciled in the state.

However, in some cases, if one spouse lives in California and the other spouse agrees to use California law, the court can divide military retirement benefits as quasi-community property.

For additional reading, check out our article on California jurisdiction laws on child custody.