MY SPOUSE LIVES IN ANOTHER STATE & I WANT A RESTRAINING ORDER!
MY SPOUSE LIVES IN ANOTHER STATE & I WANT A RESTRAINING ORDER!
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MY SPOUSE LIVES IN ANOTHER STATE & I WANT A RESTRAINING ORDER!

| Apr 25, 2019 | Firm News

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At times, couples who seek divorce may encounter situations where one spouse lives or has moved to another state.  What are the California rules for seeking relief, a Domestic Violence Restraining Order, and a divorce in such situations?

Jurisdiction.

Here are the rules in order for a California Court to have jurisdiction over a divorce.

In general, “jurisdiction” to adjudicate matters in a marital case involves three requirements: 1) that the court have authority to adjudicate the specific matter raised by the pleadings (subject matter jurisdiction) (see Fam. Code, § 2010); 2) that the court have “in rem” jurisdiction over the marital “res” to terminate marital status (“in rem” jurisdiction) (see Marriage of Zierenberg (1992) 11 Cal. App. 4th 1436, 1444-1445); and 3) that the court have jurisdiction over the parties to adjudicate personal rights and obligations (personal jurisdiction). (See Code Civ. Proc., § 410.10; Burnham v. Superior Court (1990) 495 U.S. 604; In re Marriage of Fitzgerald & King (1995) 39 Cal. App. 4th 1419, 1425 (Fitzgerald & King).)

Once the court has met these jurisdictional requirements it may determine not only the marital status, but also the personal rights and obligations of the parties, including custody and support of minor children of the marriage, spousal support, settlement and division of the parties’ property rights, and the award of costs and attorney fees. (Fam. Code, § 2010.) [With regard to property rights, the court generally looks to the domicile of the parties at the time the property was acquired to characterize it as separate or community for the purposes of division upon a dissolution of the marital status. (Grappo v. Coventry Financial Corp. (1991) 235 Cal. App. 3d 496, 505.) “[M]arital interests in money and property acquired during a marriage are governed by the law of the domicile at the time of their acquisition, even when such money and property is used to purchase real property in another state. [Citations.]” (Ibid.) California law provides that “[e]xcept as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.” (Fam. Code, § 760.)

It is further settled California law that “‘a court having jurisdiction of the parties [in a dissolution action] may adjudicate their rights to land located in another state and that the adjudication is res judicata and is to be accorded full faith and credit in the situs state regardless of whether the decree orders execution of a conveyance. . . .’ [Citations.]” (In re Marriage of Economou (1990) 224 Cal. App. 3d 1466, 1479-1480; see also Fam. Code, § 2660.

Minimum Contacts.

What if one spouse wants a domestic violence restraining order against another spouse who contends they have never been to California?

Here are the rules for out of state litigants.

The boundary of the jurisdiction of our courts over nonresident defendants is the constitutional right to due process. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444.) Under this constitutional protection, defendants have a liberty interest against being subject to judgments in a forum where they do not have “minimum contacts” that are more than random, fortuitous, or attenuated. (Id. at pp. 444-445.)

A defendant with substantial systematic contacts with California is generally subject to the jurisdiction of our courts without regard to the nature of the issue in controversy (id. at p. 445). A defendant may also be subject to the specific jurisdiction of our courts if the controversy at issue arises out of sufficient purposeful contacts with California. (Id. at p. 446; accord, Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 472-475 [85 L.Ed.2d 528]; HealthMarkets, supra, 171 Cal.App.4th at p. 1173.)

There is a species of specific jurisdiction in which a defendant acting elsewhere causes effects in California of a nature that are “ ‘exceptional’ ” and subject to “ ‘special regulation’ ” in this state. (Quattrone v. Superior Court (1975) 44 Cal.App.3d 296, 306 [inducing issuance of stock from California corporation subject to the special regulations of California security law]; see Sibley v. Superior Court (1976) 16 Cal.3d 442, 445-446; cf. Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 272-273. [emphasizing that specially regulated conduct must nonetheless be targeted at this state].)

The very existence of the Domestic Violence Protection Act bespeaks California’s concern with an exceptional type of conduct that it subjects to special regulation. As in Schlussel v. Schlussel (1983) 141 Cal.App.3d 194, where a defendant placed harassing phone calls to a California resident, the existence of statutory protection from the conduct at issue (there, a criminal statute) was sufficient to exercise jurisdiction over the defendant because it was not any different “than shooting a gun into the state” (id. at 6 p. 198; cf. Kearney v. Salomon Smith Barney, Inc. (2006) 39 Cal.4th 95, 120 [may apply California privacy statute to nonresident party taping phone call without consent, citing Schlussel with approval]).

The act of purposefully sending a video of a mock suicide to plaintiff in California (particularly in the context of alleged domestic violence taking place in Georgia) is indisputably conduct that would disturb a plaintiff’s peace of mind within the meaning of the act and be the basis for granting a restraining order. (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1498-1499; accord, Sabato v. Brooks (2015) 242 Cal.App.4th 715, 725 [sufficient that contacts are unwanted even in absence of threats of violence against the plaintiff].) As a result, this was sufficient to vest personal jurisdiction in the courts of this state over defendant to enjoin any further such conduct. (Cf. Pavlovich, supra, 29 Cal.4th at p. 274 [merely passively posting information on Web site accessible from this state is insufficient contact].)  See Hogue v. Hogue, (2017) 3rd DCA,  C083285. [defendant purposefully sent a video of a mock suicide to plaintiff in California.]

When faced with such circumstances in a family law matter, you need a skilled and knowledgeable attorney by your side protecting all of your interests.  Contact the Law Office of Robert Rodriguez!

Robert Rodriguez has litigated dozens of cases under the California DVPA, as well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, malicious prosecution, wrongful termination, workplace and employment matters including sexual harassment, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights  discrimination pursuant to 42 U.S.C. § 1983 and Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.

* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law.  Robert D. Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California.  Robert Rodriguez has practiced in the State of California Court of Appeal.

 LEGAL ADVERTISEMENT – Robert Rodriguez Best Divorce & Family Law Attorney in Pleasanton California.