How COVID-19 May Impact Divorcing Couples in Different Jurisdictions
- Introduction
The global outbreak of COVID-19 and Shelter-in-Place Orders have impacted married couples in different ways throughout the world.
Many couples have become closer together working through these difficult times. Unfortunately, for many others these recent issues have caused them to realize that they are better off separating and racing to Court as soon as their Shelter-In-Place Orders were lifted.[i]
However, another issue faced by some separating couples may be related to the choices they made at the outset, or even before the outbreak of the Coronavirus.
In today’s global economy, many Parties own homes in multiple jurisdictions, and frequently spend time in different countries.
Prior to the Coronavirus outbreak such couples may have spent most of their time in one location, but due to the onset of the pandemic they began staying in another location.
This article examines the issues that may arise with Parties maintaining conflicting actions in different jurisdictions, and how establishing each Party’s intent is a vital and frequently difficult factor in determining which Court has jurisdiction.
- A Hypothetical Case
Let us consider a hypothetical couple, Jack and Jill. Jack and Jill met in Paris, and after a few years got married there. Shortly after their marriage, while still in France they had two young boys but soon after the birth of their youngest child they moved to Hong Kong.
After a few years living in Hong Kong the Parties moved to California, where Jack was expanding the operations of his biotech company. The Parties then began spending most of their time in San Jose, California, and the children both attended school there. Over the past few years, the Parties would also spend several months in Paris and Hong Kong, where they maintained homes.
Shortly after Jack heard about the outbreak of the Coronavirus, he and Jill decided to stay closer to Jack’s main business operations in Hong Kong. Since the Parties were unsure when they would return, they planned to stay in Hong Kong for the foreseeable future. When the parties left for Hong Kong the children were 6 and 4 years old.
From January 2020 until August 2020, the Parties stayed in Hong Kong with their children. Unfortunately, the extended time alone with each other did not help the Parties’ relationship problems.
In August 2020 after the Shelter-In-Place Orders were further lessened in California, Jill informed Jack that she wished to go back to California with the children to visit some friends.
Jack was then unaware that the main reason for Jill’s return to California was to visit a former boyfriend.
While Jill was gone, Jack suspecting that something was amiss discovered that Jill was having an affair with her old boyfriend. Irate, Jack texted Jill, and informed her that he would be immediately filing for divorce in Hong Kong.
After hearing this, Jill decided to race to Court herself, and file for divorce in California.
Unfortunately, Jill was informed by her California counsel that she might not be able to commence divorce proceedings there, since she and Jack had not been present in California for the preceding six (6) months. Jill could either wait six (6) more months, or she could proceed immediately with filing a legal separation action, which did not require the six-month residency requirement.
Jill decided to file for legal separation, and request for temporary custody of the children in the California Court.
Even though Jack filed his Petition for Dissolution in Hong Kong first, before he could serve, Jill was able to have Jack served with her California Petition in Hong Kong.
- Jurisdictional Battles Across Borders
So, what usually happens when Parties file in different Jurisdictions?
In our hypothetical case, Jack would likely file a Motion to Quash in the California Court, claiming that a Hong Kong Court should have jurisdiction over the Parties. Jill would likely file a similar motion in the Hong Kong Court, claiming that California should have jurisdiction.[ii]
The Court in California will need to conduct a detailed hearing regarding Jack’s motion before making a final decision.
The California Court will need to determine if it has jurisdictional basis for each of the following matters: 1. Subject Matter Jurisdiction; 2. In Rem Jurisdiction; and 3. Personal Jurisdiction.[iii]
Both Parties will want to submit facts related to each of these jurisdictional matters. Different types of evidence and potentially the testimony of witnesses will need to be provided, which would cause the Court to schedule the case for a several-day hearing.
However, a significant issue that will have a bearing on the jurisdictional issues, is establishing the Parties’ intent when they relocated to Hong Kong and later travel to California.
What are some of the factual and legal issues the Court may consider in deciding whether to maintain the case in California or deferring the matter to Hong Kong?
- Does a Dissolution Action Take Precedence Over a Legal Separation Case?
In California, a judgment for dissolution of marriage may not be entered unless one of the spouses has been a “resident” of California for six months and of the county where the proceeding is filed for three months immediately preceding the filing of the Petition for Dissolution.[iv]
Courts have determined that the term “residency” are synonymous with “domicile” which requires both physical presence and an intent to remain “indefinitely.”[v]
Whether the residency requirement has been met is a question of fact, and the burden of establishing residency is on the party asserting it.[vi]
However, an action for legal separation, domicile is not controlling. A Court’s jurisdiction is dependent on personal jurisdiction over a Party.[vii]
Additionally, based upon the principles of divisible divorce, Parties could entertain concurrent legal separation and dissolution proceedings in different jurisdictions.[viii]
Therefore, in our hypothetical case even if the California Court determines that it does not have in rem jurisdiction over the Parties’ dissolution proceedings, technically it could still decide to maintain the legal separation proceeding, so long as the Court finds that it has personal jurisdiction over Jack.
- How about Personal Jurisdiction?
Even if Jill is allowed to maintain her legal separation proceeding in California, she would have to show that the Court has personal jurisdiction over Jack.
If Jack were in California when he was served with Jill’s Petition for Legal Separation, this would not be an issue. However, since Jack was served in Hong Kong, Jill would have to establish that Jack has “minimum contacts” with California for the Court to have jurisdiction over him based upon the Court’s Long Arm Statute.[ix]
The extent to which “minimum contacts” personal jurisdiction may be exercised (i.e., where jurisdiction is predicated solely on minimum contacts, and not domicile, consent or in-state service of process), would depend on the nature and quality of Jack’s contacts with California, and if Jack had “purposely” conducted certain activities immediately prior to the filing of the Petition to “avail” himself of activities in the State.[x]
Jack’s activities in California that occurred a significant time prior to the filing of Jill’s Petition may not be adequate to establish sufficient minimum contacts with California.[xi]
Therefore, Jill would have to establish that Jack had intentionally continued to have certain minimum contacts with California, to have an expectation that he would be subject to personal jurisdiction there.
However, even if California determines that it does have personal jurisdiction over Jack, it could still decide that based on the inconvenience to the Parties or witnesses, Hong Kong is a more convenient forum.[xii]
- What About Custody (UCCJEA) Jurisdiction?
If a California Court is advised that another Jurisdiction may have a similar pending custody proceeding, it is will seek to communicate with that Court about such matters.[xiii]
However, frequently scheduling an appropriate time for the Courts to communicate in different time zones can be difficult.
Pursuant to the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), for a California Court to determine custody visitation and matters, the children must have resided in California for the six months before the filing of Jill’s Petition for dissolution.[xiv]
In determining Habitual Residence, a Court would need to consider the “the intentions and circumstances of caregiving parents.”[xv]
However, Jill may be able to argue that the Parties were only in Hong Kong on a temporary basis and therefore California should still have jurisdiction over custody.
Periods of temporary absence may still be considered by the Court in determining jurisdiction over custody.[xvi]
In determining whether the children’s absence from California was temporary or not, the Court is required to consider the parents’ intentions, as well as other factors relating to the circumstances of the child’s or family’s departure from the state where they had been residing.[xvii]
- Does Filing or Serving First Matter?
When two Parties file simultaneous Dissolution proceedings, the person who is able to serve first may be able to seek abatement of the later proceedings.[xviii]
However, an order for abatement is a matter of Court discretion and subject to consideration of various factors including: “the seriousness of threat of multiple and vexatious litigation, convenience of parties, status of foreign action, and competing interests of two forums.”[xix]
Therefore, in our hypothetical case, it really does not matter whether Jack filed first or Jill. Rather the Court will need to still make a detailed jurisdictional analysis.
- So How can Parties Establish Intent Needed for Jurisdictional Purposes?
Various types of circumstantial evidence can be provided to a Court to establish a party’s intent.[xx]
Evidence in support of such intent can be manifested by both past declarations and specific actions in a certain jurisdiction including: owning property, maintaining a local driver’s license and automobile registration, filing local taxes, and registering to vote.[xxi]
In our hypothetical, either party may also seek to submit various written communications (such as emails or texts) between them to establish their intent, and whether they planned on staying in Hong Kong indefinitely or not.
However, while one party’s statement(s) may supply evidence of the intention requisite to establish domicile at a given place of residence, they cannot alone supply the fact of residence there.[xxii]
Counsel should also be aware that submitting only one type of evidence may be insufficient to establish intent. For example, merely owning a residence in a jurisdiction may not be sufficient to demonstrate intent to acquire a domicile if contradicted by other substantial evidence of intent.[xxiii] Similarly filing taxes alone in a given jurisdiction may not be enough.[xxiv]
- Can a Party’s immigration status impact the Court’s finding of jurisdictional intent?
California Courts had previously deemed that a child or Party’s immigration status itself would not bar a party from filing a dissolution action in California.[xxv]
However, Counsel should be aware that recently a Federal Court in California has determined that a nonimmigrant who entered the United States legally, but unlawfully overstayed her visa is precluded from establishing domiciliary intent required for obtaining a divorce in California.[xxvi]
- Conclusion
Any decision to relocate for an indefinite period of time, including those taken after the onset of COVID-19 may impact a Party’s ability to commence (or halt) family law proceedings in California. Appropriately establishing the intent for the move (and return) are vital factors in determining the proper jurisdiction.
[i] China’s Divorce Spike Is a Warning to Rest of Locked-Down World: Bloomberg Businessweek March 31, 2020, 1:00 AM PDT – https://www.bloomberg.com/news/articles/2020-03-31/divorces-spike-in-china-after-coronavirus-quarantines
[ii] Cal. Code of Civ. Proc. §418.10; CRC 5.63.
[iii] See Hogoboom & King, CAL. PRAC. GUIDE: FAMILY LAW (The Rutter Group 2019), §3:1.5.
[iv] Cal. Fam. Code Sec. 2320.
[v] See In re Marriage of Thornton (1982) 135 Cal.App.3d 500, 507; In re Marriage of Tucker (1991) 226 Cal.App.3d 1249, 1258–1259.
[vi] In re Marriage of Dick (1993) 15 Cal.App.4th 144, 153.
[vii] See Goodwine v. Superior Court (1965) 63 Cal.2d 481, 483 – The residence requirements applicable to the plaintiff in divorce actions are inapplicable in actions for separate maintenance.
[viii] See Estin v. Estin (1948) 334 U.S. 541, 549; Marriage of Gray (1988) 204 Cal.App.3d 1239, 1250-1251—W’s legal separation action in her domiciliary state of Wash. D.C. no bar to H’s dissolution action in his domiciliary state of California; See Also [Marriage of Hattis (1987) 196 CA3d 1162, 1170 – California courts may both have jurisdiction over nonpension issues in the dissolution proceeding and at the same time lack jurisdiction to divide the military member’s pension under the USFSPA.
[ix] See Khan v. Superior Court (1988) 204 Cal.App.3d 1168, 1170.
[x] See Muckle v. Sup.Ct. (Burgess-Muckle) (2002) 102 Cal. App. 4th 218, 228-230.
[xi] Muckle v. Sup.Ct. (Burgess-Muckle), 102 Cal. App. 4th at 227: See also Tarvin v. Tarvin (1986) 187 Cal.App.3d 56, 60-61.
[xii] Code of Civ. Proc. §410.30(a); See Marriage of Tucker (1991) 226 Cal.App.3d 1249.
[xiii] Cal. Fam. Code §3424(d)
[xv] Monasky v. Taglieri (2020) 140 S.Ct. 719, 727.
[xvi] Fam. Code §3402(g).
[xvii] See In re Marriage of Nurie (2009) 176 Cal.App.4th 478, 493, fn. 12; In re Aiden L. (2017) 16 Cal.App.5th 508, 518.
[xviii] See Marriage of Hanley (1988) 199 CalA3d 1109, 1115-1116.
[xix] Leadford v. Leadford (1992) 6 Cal.App.4th 571, 574.
[xx] Witkin California Evidence (2019) Fifth Edition, Chp. IV, §122.
[xxi] In re Marriage of Leff (1972) 25 Cal.App.3d 630, 633.
[xxii] Penn Mut. Life Ins. Co. v. Fields (1948) 81 F.Supp. 54, 60.
[xxiii] Johnson v. Johnson (1960) 245 Cal.App.2d 40, 44-45.
[xxiv] Penn Mut. Life Ins. Co. v. Fields, 81 F.Supp. at 61.
[xxv] In re B. Del C.S.B. (2009) 559 F.3d 999, 1010-1014; In re Marriage of Dick (1993) 15 Cal. App. 4th 144, 154 – Nonimmigrant status does not preclude a finding of residence under California law for the purposes of obtaining a dissolution of marriage.
[xxvi] Park v. Barr (2020) 946 F.3d 1096, 1099.
[1] China’s Divorce Spike Is a Warning to Rest of Locked-Down World: Bloomberg Businessweek March 31, 2020, 1:00 AM PDT – https://www.bloomberg.com/news/articles/2020-03-31/divorces-spike-in-china-after-coronavirus-quarantines
[1] Cal. Code of Civ. Proc. §418.10; CRC 5.63.
[1] See Hogoboom & King, CAL. PRAC. GUIDE: FAMILY LAW (The Rutter Group 2019), §3:1.5.
[1] Cal. Fam. Code Sec. 2320.
[1] See In re Marriage of Thornton (1982) 135 Cal.App.3d 500, 507; In re Marriage of Tucker (1991) 226 Cal.App.3d 1249, 1258–1259.
[1] In re Marriage of Dick (1993) 15 Cal.App.4th 144, 153.
[1] See Goodwine v. Superior Court (1965) 63 Cal.2d 481, 483 – The residence requirements applicable to the plaintiff in divorce actions are inapplicable in actions for separate maintenance.
[1] See Estin v. Estin (1948) 334 U.S. 541, 549; Marriage of Gray (1988) 204 Cal.App.3d 1239, 1250-1251—W’s legal separation action in her domiciliary state of Wash. D.C. no bar to H’s dissolution action in his domiciliary state of California; See Also [Marriage of Hattis (1987) 196 CA3d 1162, 1170 – California courts may both have jurisdiction over nonpension issues in the dissolution proceeding and at the same time lack jurisdiction to divide the military member’s pension under the USFSPA.
[1] See Khan v. Superior Court (1988) 204 Cal.App.3d 1168, 1170.
[1] See Muckle v. Sup.Ct. (Burgess-Muckle) (2002) 102 Cal. App. 4th 218, 228-230.
[1] Muckle v. Sup.Ct. (Burgess-Muckle), 102 Cal. App. 4th at 227: See also Tarvin v. Tarvin (1986) 187 Cal.App.3d 56, 60-61.
[1] Code of Civ. Proc. §410.30(a); See Marriage of Tucker (1991) 226 Cal.App.3d 1249.
[1] Cal. Fam. Code §3424(d)
[1] Fam. Code §3421(a)(1).
[1] Monasky v. Taglieri (2020) 140 S.Ct. 719, 727.
[1] Fam. Code §3402(g).
[1] See In re Marriage of Nurie (2009) 176 Cal.App.4th 478, 493, fn. 12; In re Aiden L. (2017) 16 Cal.App.5th 508, 518.
[1] See Marriage of Hanley (1988) 199 CalA3d 1109, 1115-1116.
[1] Leadford v. Leadford (1992) 6 Cal.App.4th 571, 574.
[1] Witkin California Evidence (2019) Fifth Edition, Chp. IV, §122.
[1] In re Marriage of Leff (1972) 25 Cal.App.3d 630, 633.
[1] Penn Mut. Life Ins. Co. v. Fields (1948) 81 F.Supp. 54, 60.
[1] Johnson v. Johnson (1960) 245 Cal.App.2d 40, 44-45.
[1] Penn Mut. Life Ins. Co. v. Fields, 81 F.Supp. at 61.
[1] In re B. Del C.S.B. (2009) 559 F.3d 999, 1010-1014; In re Marriage of Dick (1993) 15 Cal. App. 4th 144, 154 – Nonimmigrant status does not preclude a finding of residence under California law for the purposes of obtaining a dissolution of marriage.
[1] Park v. Barr (2020) 946 F.3d 1096, 1099.
