Why Does Jurisdiction Matter in Divorce Cases?
By: M. Scott Gordon
When a married couple resides in the Chicago area and decides to file for divorce, the matter of jurisdiction does not come up too frequently. However, jurisdiction for a divorce case can have significant effects on a case if one spouse lives in the Chicago area and the other lives out of state. In case you are not familiar with the term jurisdiction, in the most basic terms, it refers to a court’s power to hear a case, as the Cornell Legal Information Institute (LII) explains.
Since a divorce case will not be heard in two different states (if the divorcing spouses live in different states), it is important to understand which court will have jurisdiction. Depending upon where the divorce filing occurs and which court hears a divorce case, issues like property division can be impacted in drastic ways.
The matter of jurisdiction in divorce cases can be a very complicated one, and it often requires a court to determine where the couple has the most “contacts” such that the case should be heard in that area. The issue of jurisdiction has arisen recently with regard to a prominent divorce case in Cook County, according to a recent article in the Chicago Tribune. As that article explains, former Chicago Alderman Sandi Jackson is currently “seeking a divorce from ex-U.S. Rep. Jesse Jackson Jr.,” but there is a significant debate concerning jurisdiction.
Sandi Jackson, as the article clarifies, filed for divorce in Washington, D.C., but Jesse Jackson Jr. filed for divorce in Cook County, Illinois. Two separate proceedings were set in Washington and Cook County. In the divorce, the court will have to contend with matters related to the couple’s 25-year marriage, including child custody issues (they have two teenagers from the marriage), child support, and spousal maintenance.
What factors does a court consider when deciding jurisdiction in a divorce matter? The article suggested that the judges in both filings will be considering “where the couple lives, where their assets are, and where their children reside.”
In an effort to have the case heard in Washington, Sandi Jackson argued that Jesse Jackson’s filing in Cook County should have been dismissed because he didn’t live in a house that he currently paid a mortgage on in Illinois. However, Jesse Jackson contended that the divorce should have been heard in Cook County because he “has been registered to vote in Illinois all his life and has an Illinois driver’s license.”
Jurisdiction can matter for a number of different reasons, including but not limited to:
For instance, Illinois is an equitable distribution state when it comes to property division in divorces. This means that the court will divide marital property in a way that is “equitable” — or fair — to both of the parties involved. Other states, however, are known as community property states, where spouses are assumed to equally own everything from the marriage. As such, spouses in community property states typically have both assets and debts of the marriage divided equally, even if that may not be the equitable solution.
Divorce jurisdiction refers to the legal authority a court has to hear and decide a divorce case. In the United States, jurisdiction is governed by state law. It is important to understand where and how to file for divorce, especially in cases involving spouses living in different states or countries. Below are answers to frequently asked questions that clarify the concept of divorce jurisdiction and help individuals navigate this fundamental aspect of family law
Divorce jurisdiction is the court’s legal power to hear and decide matters related to the dissolution of a marriage. This includes authority over the spouses, property, child custody, and support. Jurisdiction is typically based on residency requirements, meaning at least one spouse must live in the state where the divorce is filed.
You must file for divorce in a state where you or your spouse meet the residency requirements. Most states require that one party has lived in the state for a minimum period—commonly between six months to one year—before filing. For example:
You cannot file for divorce in a state where neither spouse has legal residence, even if you were married there.
You can still file for divorce in your state if you meet the residency requirements. However, the court may have limited jurisdiction over your spouse, particularly regarding property division or support. To exercise full jurisdiction, the court must establish personal jurisdiction over your spouse, which can be accomplished if:
If your spouse lives abroad, you may need to follow international service of process and comply with treaties (e.g., the Hague Convention).
Yes, but only one state will ultimately proceed with the case. If both spouses file in different states, the court that first obtains jurisdiction typically continues with the case. Courts may also consider *forum non conveniens*, a legal principle that allows a court to decline jurisdiction if another state is more appropriate.
Child custody jurisdiction is governed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which has been adopted by all U.S. states except Massachusetts. Under the UCCJEA:
Custody orders issued in one state are enforceable in other states under UCCJEA rules.
To divide property or award spousal/child support, the court must have personal jurisdiction over both spouses. If your spouse lives out of state and does not consent to jurisdiction, the court may only dissolve the marriage, but not divide assets or issue support orders. In such cases, you may need to file additional actions in the state where your spouse resides.
Yes. If one party believes the court lacks jurisdiction, they can file a motion to dismiss or challenge the venue. Courts will examine residency, service of process, and statutory requirements before proceeding. Jurisdictional challenges are common in high-conflict or interstate divorces.
Understanding divorce jurisdiction is critical to ensuring your case is heard in the correct court and that all relevant issues—property, custody, and support—are appropriately addressed. If you or your spouse live in different states or if international elements are involved, consulting a family law attorney is highly recommended.
If you have questions about how jurisdiction issues could impact your divorce, our experienced divorce lawyer in Chicago area can speak with you today. Contact Gordon & Perlut, LLC at 312-360-0250 to learn more.