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Geography of divorce: what court has jurisdiction over assets?

Posted May 2010. Filed under Divorce & Dissolution, Property & Financial Matters

What do you have to do to get a divorce or a dissolution of marriage in Ohio? You need to meet two simple requirements:

  1. You must live in Ohio for six months and
  2. You must live in one Ohio county for 90 days.

That’s it. Never mind where you  were married or whether your spouse is living in Ohio. None of that matters. Divorce is known in legal circles as an in rem action. Briefly, that means a civil court has jurisdiction over ‘the thing’, the marriage itself. It has no jurisdiction over the person (unless the person is a resident of the state or has certain kinds of contacts with the state, which you can read about below).

Because the court has jurisdiction over the marriages of its citizens, you can establish residency in Ohio in the way described above and get your divorce or dissolution.

BUT there’s an important but. If there are marital assets –a home, a pension, investments— it’s not quite that simple.

Let’s say you married in Georgia and lived in Georgia with your spouse and all your joint assets for a decade. Now you’ve lived in Cuyahoga County, Ohio for six months. You file for divorce and ask for a property division and a share of your spouse’s pension benefit.

Can the Cuyahoga County Court of Common Pleas, Domestic Relations Division grant the divorce? Sure.

Will it divide the property and pension between you and the other party? That’s far less likely. In exercising control over the marriage, the court will also have to exercise control over those marital assets. It will have to decide how to divide the assets. And that means it has to be able to order you and your spouse to do things—provide information, for instance, or sign over to the other party an interest in some asset.

Like every state, Ohio strictly defines when courts have control over non-citizens of the state. The domestic relations court cannot simply reach out and exercise jurisdiction over a spouse who has never lived in Ohio or who, in some cases, has never even been in the state.

Even more important, the U.S. Constitution brings due process considerations into play. In effect, constitutional law says that there must be a minimum level of contact between a person and a state for the civil courts of that state to exercise control over that person.

So the court is not going to take jurisdiction over the marital assets. The only way it might is if you can establish that your spouse meets the constitutional ‘minimum contacts’ standard. If your spouse has been visiting Ohio to do business here over the years or has come up to visit you on a number of occasions, that might meet the standard.

If you can make the argument and present convincing evidence, the court just might decide it has jurisdiction over your spouse’s person, as well as over your marriage. I say might—not will.

But barring that, the court is going to suggest that you go back to Georgia to get your divorce and the property settlement you seek.

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