What Court Has Personal Jurisdiction if the Spouses Reside in Separate States?
Full Question:
Answer:
I suggest having your AZ attorney address the matter. I don't know of an attorney who will perform work without a client relationship being formed. Unfortunately, our forms drafting department only handles uncontested divorce matters.
When a lawsuit is filed, addition to the mandatory requirement of having subject-matter jurisdiction, a court needs to acquire in personam jurisdiction over the respondent/defendant. Any order issued by a judge when both subject-matter jurisdiction and in personam jurisdiction has not been properly conferred is void, of no legal force or effect.
In personam jurisdiction is obtained when the respondent/ defendant is properly served with a summons and complaint either by certified mail, by personal service, or by publication (only rarely used and only when the address of the respondent/defendant is unknown).
In order to serve a defendant with the state's long arm statute, the defendant must have minimum contacts with the state. Minimum contacts can consist of either some type of systematic and continuous contact with the forum ("general jurisdiction"), or isolated or occasional contacts purposefully directed toward the forum ("specific jurisdiction"). A single contact can suffice to establish personal jurisdiction, but where jurisdiction is based on a single contact, the nature and quality of the contact is determinative. The principal test of foreseeability in a due process analysis "is that the defendant's conduct and connection with the forum state are such that he should reasonably anticipate the possibility of defending a suit in the forum.
It is important to file a proper response and/or motion after receiving a summons to avoid having a default judgment entered on your records. The answer or general denial is filed in the court where the summons was issued, with a certificate of service attached, showing that a copy was served on the other parties.
A "default judgment" may be rendered against a party if it is the result of a party's failure to take a necessary step in the action within the proper time; this generally means a failure to plead or otherwise defend within the time allowed. Since, under rules of procedure, allegations not specifically denied are deemed admitted, failure to file a responsive pleading will generally result in the entry of a default judgment against the defendant. When a complaint is filed and the defendant fails to file an answer within the applicable time period, a default judgment may be entered against the defendant.
An answer is a legally sufficient response to the allegations that have been alleged against you in the complaint. The answer will generally either admit or deny each claim made by paragraph, or state an inability to admit or deny for lack of knowledge. Defenses may also be raised. A counterclaim or cross claim may also be asserted.
Venue is typically proper where the defendant resides, conducts business, where a contract is formed, where an accident occurs, or where the contract provides for the case to be brought. Typically, a defendant needs to have minimum contacts with the forum to pass due process requirements for being served with a complaint. Due process requires it to be reasonably foreseeable that a person would be called to defend in that court.
Generally, the requirement of minimum contacts means that the defendant has to have taken actions that were purposefully directed towards the forum state. Such actions may include, among others, selling goods in the state, being incorporated in the state, visiting the state, or bringing property in the state.
http://www.superiorcourt.maricopa.gov/SuperiorCourt/Self-ServiceCenter/Forms/FamilyCourt/fc_gn2b.asp
http://www.superiorcourt.maricopa.gov/sscDocs/packets/gn2b.pdf
http://www.willicklawgroup.com/get_file/id=166
http://lawprofessors.typepad.com/adjunctprofs/2008/09/out-of-state-su.html
Please see the following AZ Family Law Rules:
25-312. Dissolution of marriage; findings necessary
The court shall enter a decree of dissolution of marriage if it finds
each of the following:
1. That one of the parties, at the time the action was commenced, was
domiciled in this state, or was stationed in this state while a member of
the armed services, and that in either case the domicile or military
presence has been maintained for ninety days prior to filing the petition
for dissolution of marriage.
2. The conciliation provisions of section 25-381.09 and the provisions of
article 5 of this chapter either do not apply or have been met.
3. The marriage is irretrievably broken or, if the marriage is a covenant
marriage, any of the grounds prescribed in section 25-903.
4. To the extent it has jurisdiction to do so, the court has considered,
approved and made provision for child custody, the support of any natural
or adopted child common to the parties of the marriage entitled to support,
the maintenance of either spouse and the disposition of property.
Rule 42. Service of Process Outside of State.
A. Extraterritorial Jurisdiction; Personal Service Out of
State.
A court of this state may exercise personal jurisdiction
over parties, whether found within or outside the state, to
the maximum extent permitted by the constitution of this
state and the Constitution of the United States. Service
upon any such party located outside the state may be made as
provided in this rule and when so made shall be of the same
effect as personal service within the state.
B. Direct Service.
Service of process may be made outside the state but within
the United States in the same manner provided in Rule 41(C)
through (K) by a person authorized to serve process under
the law of the state where such service is made. Such
service shall be complete when made, and time for purposes
of paragraph J shall begin to run at that time, provided
that before any default may be had on such service, there
shall be filed an affidavit of service showing the
circumstances warranting the utilization of this procedure
and attaching an affidavit of the process server showing the
facts and circumstances of the service.
C. Service by Mail or National Courier Service; Return.
When the location of a party outside the state is known,
service may be made by depositing, with delivery charges
prepaid, the summons and a copy of the pleading and other
documents being served with the United States Postal Service
or any other national courier service that provides delivery
and signature confirmation or certified mail, signed return
receipt, to be sent to the person to be served. Service
under this rule and the return or confirmation of service
may be made by the party procuring service or by that
party's attorney. Service in this manner is only effective
if the return receipt or signature confirmation is signed by
the party to be served. Upon receiving from the U.S. Postal
Service or other national courier service the signed return
receipt, or a copy of the signature confirmation and cash
register receipt or package label of the person being
served, the serving party shall file an affidavit with the
court stating:
1. that the party being served is known to be located
outside the state;
2. that the summons and a copy of the pleading and other
document being served were dispatched to the party being
served;
3. that such papers were in fact received by the party as
evidenced by the receipt or copy of the signature
confirmation and cash register receipt or package label, a
copy of which shall be attached to the affidavit; and
4. the date of receipt by the party being served and the
date of the return of the receipt or signature confirmation
to the sender.
This affidavit shall be prima facie evidence of
personal service of the summons, the pleading and other
documents to be served. Service shall be deemed complete and
time shall begin to run for the purposes of paragraph J from
the date of receipt by the party being served, provided that
no default may be had on such service until the required
affidavit has been filed.
D. Service by Publication; Return.
Service by publication is not sufficient to confer
jurisdiction upon the court to determine issues of paternity,
child support, spousal maintenance, division of marital
property, or any other issue requiring personal jurisdiction
over a party. In actions involving dissolution of a marriage,
custody or any other issue not requiring personal jurisdiction
over a party, and where the person to be served is one whose
present residence is unknown but whose last known residence
was outside the state or has avoided service of process, and
service by publication is the best means practicable under the
circumstances for providing notice of institution of the
action, then service may be made by publication in accordance
with the requirements of this subpart. Such service shall be
made by publication of the summons and of a statement as to
the manner in which a copy of the pleading and other documents
being served may be obtained at least once per week for four
successive weeks in a newspaper published in the county where
the action is pending. If no newspaper is published in any
such county, then the required publications shall be made in a
newspaper published in an adjoining county. The service shall
be complete thirty days after the first publication. When the
residence of the person to be served is known, the party or
officer making service shall also, on or before the date of
the first publication, mail the summons, a copy of the
pleading and other documents being served, postage prepaid,
directed to that person at that person's place of residence.
Service by publication and the return thereof may be made by
the party procuring service or that party's attorney in the
same manner as though made by an officer. The party or officer
making service shall file an affidavit showing the manner and
dates of publication and mailing and the circumstances
warranting utilization of the procedure authorized by this
subpart, which shall be prima facie evidence of compliance
herewith. A printed copy of the publication shall accompany
the affidavit. If the residence of the person to be served is
unknown, and for that reason no mailing was made, the
affidavit shall so state.
E. Service of Summons Upon Corporations, Partnerships or
Unincorporated Associations Located Outside Arizona but
Within the United States.
Where the corporation or partnership or unincorporated
association to be served is located outside the state but
within the United States, service under this rule shall be
made on one of the persons specified in Rule 41(J).
F. Service upon Individuals in a Foreign Country.
Unless otherwise provided by federal law, service upon an
individual from whom a waiver has not been obtained and filed,
other than a minor or an incompetent person, may be effected
in a place not within any judicial district of the United
States:
1. by any internationally agreed means reasonably calculated
to give notice, such as those means authorized by the Hague
Convention on the Service Abroad of Judicial and
Extrajudicial Documents; or
2. if there is no internationally agreed means of service or
the applicable international agreement allows other means of
service, provided that service is reasonably calculated to
give notice:
a. in the manner prescribed by the law of the foreign
country for service in that country in an action in any of
its courts of general jurisdiction; or
b. as directed by the foreign authority in response to a
letter rogatory or letter of request; or
c. unless prohibited by the law of the foreign country, by
1) delivery to the party to be served personally of a copy
of the summons and of the pleading; or
2) any form of mail requiring a signed receipt, to be
addressed and dispatched by the clerk of the court to the
party to be served; or
3) by other means not prohibited by international agreement,
as may be directed by the court.
G. Service of Summons Upon Minors and Incompetent Persons
in a Foreign Country.
Service upon a minor, a minor with a guardian or an
incompetent person in a place not within any judicial district
of the United States shall be effected in the manner
prescribed by subdivision (F)(2)(a) or (F)(2)(b), or by such
means as the court may direct.
H. Service of Summons Upon Corporation and Associations
in a Foreign Country.
Unless otherwise provided by federal law, service upon a
corporation or upon a partnership or other unincorporated
association that is subject to suit under a common name, and
from which a waiver of service has not been obtained and
filed, shall be effected in a place not within any judicial
district of the United States in any manner prescribed for
individuals by paragraph F except personal delivery as
provided in subdivision (2)(c)(1) thereof.
I. Service of Summons upon a Foreign State or Political
Subdivision Thereof.
Service of a summons upon a foreign state or a political
subdivision, agency, or instrumentality thereof shall be
effected pursuant to 28 U.S.C. § 1608.
J. Time for Appearance after Service Outside State.
Where service of the summons and copy of a pleading and
other documents required to be served is made outside the
state by any means authorized by this rule, the person served
shall appear and answer within thirty (30) days after
completion thereof in the same manner and under the same
penalties as if that person had been personally served with a
summons within the county in which the action is pending.
Rule 41. Service of Process within Arizona.
A. Territorial Limits of Effective Service.
All process may be served anywhere within the territorial
limits of the state.
B. Summons; Service with Petition.
The summons, pleading and other documents being served shall
be served together. The party procuring service is responsible
for service of a summons, the pleading and other documents
being served within the time allowed under Rule 40(I) and
shall furnish the person effecting service with the necessary
copies of the pleading to be served.
C. Service of Summons upon Individuals.
1. Personal Service.
Service upon an individual from whom a waiver has not been
obtained and filed, other than those specified in
paragraphs D, E, and F, shall be effected by delivering a copy
of the summons, pleading and other documents being served to
that individual personally or by leaving copies thereof at
that individual's dwelling house or usual place of abode with
some person of suitable age and discretion then residing
therein or by delivering a copy of the summons, pleading and
other documents being served to an agent authorized by
appointment or by law to receive service of process, except as
otherwise provided in subdivision C(2).
2. Service by Mail or National Courier Service; Return.
When the location of a party is within the state, service
may be made by depositing, with delivery charges prepaid, the
summons and a copy of the pleading and other documents being
served with the United States Postal Service or any other
national courier service that provides delivery and signature
confirmation or certified mail, signed return receipt, to be
sent to the person to be served. Service under this rule and
the return or confirmation of service may be made by the party
procuring service or by that party's attorney. Service in this
manner is only effective if the return receipt or signature
confirmation is signed by the party to be served. Upon
receiving from the U.S. Postal Service or other national
courier service the signed return receipt, or a copy of the
signature confirmation and cash register receipt or package
label of the person being served, the serving party shall file
an affidavit with the court stating:
a. that the summons and a copy of the pleading and other
document being served were dispatched to the party being
served;
b. that such papers were in fact received by the party as
evidenced by the receipt, or copy of the signature
confirmation containing the signature of the party served
and cash register receipt or package label, a copy of which
shall be attached to the affidavit; and
c. the date of receipt by the party being served and the
date of the return of the receipt or signature confirmation
to the sender.
This affidavit shall be prima facie evidence of
personal service of the summons, the pleading and other
documents to be served. Service shall be deemed complete and
time shall begin to run for the purposes of Rule 32(A) from
the date of receipt by the party being served, provided that
no default may be had on such service until the required
affidavit has been filed.
D. Service of Summons upon Minors.
Service upon a minor under the age of sixteen years shall be
effected by service in the manner set forth in paragraph C
upon the minor and upon the minor's father, mother or
guardian, within this state, or if none is found therein, then
upon any person having the care and control of such minor, or
with whom the minor resides.
E. Service of Summons upon a Minor with Guardian or
Conservator.
Service upon a minor for whom a guardian or conservator has
been appointed in this state shall be effected by service in
the manner set forth in paragraph C upon such guardian or
conservator and minor.
F. Service of Summons upon Incompetent Persons.
Service upon a person who has been judicially declared to be
insane, gravely disabled, incapacitated or mentally
incompetent to manage that person's property and for whom a
guardian or conservator has been appointed in this state shall
be effected by service in the manner set forth in paragraph C
upon such person and also upon that person's guardian or
conservator, or if no guardian or conservator has been
appointed, upon such person as the court designates.
G. Service of Summons upon the State.
Service upon the state shall be effected by acceptance or
waiver of service, or by delivering a copy of the summons and
of the pleading to the attorney general or any person
designated by the attorney general a copy of the summons and
of the pleading in the manner set forth in Rule 41(C).
Alternatively, in counties that by administrative order of the
presiding judge have authorized electronic service upon the
state in Title IV-D cases as provided in this rule, any person
required under these rules to personally serve documents upon
the state may serve the same by concurrently filing with the
documents to be served a written Notice of State Interest
that: 1) requests electronic service of the documents upon the
state under this rule and the administrative order; 2)
separately lists the title or description of each document to
be served; and 3) indicates the State has or may have a right
to be served with the documents. The clerk shall promptly
file, scan and electronically transmit true copies of the
documents and the Notice of State Interest to the electronic
address that the state designates in response to the
administrative order implementing the procedure, and service
shall be deemed complete upon the clerk filing a Proof of
Service By Electronic Transmittal verifying the documents and
Notice of State Interest were transmitted and received by the
state.
H. Service of Summons upon a County, Municipal Corporation
or Other Governmental Subdivision.
Service upon a county or a municipal corporation or other
governmental subdivision of the state subject to suit, and
from which a waiver has not been obtained and filed, shall
be effected by delivering a copy of the summons and of the
pleading to the chief executive officer, the secretary,
clerk, or recording officer thereof.
I. Service of Summons upon Other Governmental Entities.
Service upon any governmental entity not listed above shall
be effected by serving the person, officer, group or body
responsible for the administration of that entity or by
serving the appropriate legal officer, if any, representing
the entity. Service upon any person who is a member of the
"group" or "body" responsible for the administration of the
entity shall be sufficient.
J. Service of Summons upon Corporations, Partnerships or
Other Unincorporated Associations.
Service upon a domestic or foreign corporation or upon a
partnership or other unincorporated association which is
subject to suit in a common name, and from which a waiver
has not been obtained and filed, shall be effected by
delivering a copy of the summons and of the pleading to a
partner, an officer, a managing or general agent, or to any
other agent authorized by appointment or by law to receive
service of process and, if the agent is one authorized by
statute to receive service and the statute so requires, by
also mailing a copy to the party on whose behalf the agent
accepted or received service.
K. Service of Summons Upon a Domestic Corporation If
Authorized Officer or Agent Not Found Within the State.
When a domestic corporation does not have an officer or
agent in this state upon which legal service of process can
be made, service upon such domestic corporation shall be
effected by depositing two (2) copies of the summons and of
the pleading being served in the office of the Corporation
Commission, which shall be deemed personal service on such
corporation. The return of the sheriff of the county in
which the action or proceeding is brought that after
diligent search or inquiry the sheriff has been unable to
find any officer or agent of such corporation upon whom
process may be served, shall be prima facie evidence
that the corporation does not have such an officer or agent
in this state. The Corporation Commission shall file one of
the copies in its office and immediately mail the other
copy, postage prepaid, to the office of the corporation, or
to the president, secretary or any director or officer of
such corporation as appears or is ascertained by the
Corporation Commission from the articles of incorporation or
other papers on file in its office, or otherwise.
L. Alternative or Substituted Service.
If service by one of the means set forth in the preceding
paragraphs of this rule proves impracticable, then service may
be accomplished in such manner, other than by publication, as
the court, upon motion and without notice, may direct.
Whenever the court allows an alternative or substitute form of
service pursuant to this subpart, reasonable efforts shall be
undertaken by the party making service to assure that actual
notice of the commencement of the action is provided to the
person to be served and, in any event, the summons and the
pleading to be served, as well as any order of the court
authorizing an alternative method of service, shall be mailed
to the last known business or residence address of the person
to be served. Service by publication may be employed only
under the circumstances, and in accordance with the
procedures, specified in paragraph M and Rule 42(D).
M. Service by Publication; Return.
Service by publication is not sufficient to confer
jurisdiction upon the court to determine issues of paternity,
child support, spousal maintenance, division of marital
property, or any other issue requiring personal jurisdiction
over a party. In actions involving dissolution of a marriage,
custody, or any other issue not requiring personal
jurisdiction over a party, and where the person to be served
is one whose residence is unknown to the party seeking service
but whose last known residence address was within the state,
or has avoided service of process, and service by publication
is the best means practicable under the circumstances for
providing notice of the institution of the action, then
service may be made by publication in accordance with the
requirements of this subpart. Such service shall be made by
publication of the summons, and of a statement as to the
manner in which a copy of the pleading being served may be
obtained, at least once a week for four successive weeks (1)
in a newspaper published in the county where the action is
pending, and (2) in a newspaper published in the county of the
last known residence of the person to be served, if different
from the county where the action is pending. If no newspaper
is published in any such county, then the required
publications shall be made in a newspaper published in an
adjoining county. The service shall be complete thirty days
after the first publication. When the residence of the person
to be served is known, the party or officer making service
shall also, on or before the date of the first publication,
mail the summons and a copy of the pleading and other
documents being served, postage prepaid, to that person at
that person's place of residence. Service by publication and
the return thereof may be made by the party procuring service
or that party's attorney in the same manner as though made by
an officer. The party or officer making service shall file an
affidavit showing the manner and dates of the publication and
mailing, and the circumstances warranting the utilization of
the procedure authorized by this subpart, which shall be
prima facie evidence of compliance herewith. A printed
copy of the publication shall accompany the affidavit. If the
residence of the party being served is unknown, and for that
reason no mailing was made, the affidavit shall so state.