Personal Jurisdiction and Divorce

Below is an excerpt from a motion regarding divorce and personal jurisdiction that I did on a case recently.  

Divorce is regarded as a form of in rem action, a court may grant divorce even though the defendant does not have minimum contacts required for personal jurisdiction.  In 1942, the United States Supreme Court held that one spouse’s domicle in the forum state, combined with proper process is sufficient to allow a grant of divorce, even in the absence of personal jurisdiction over the defendant.  Williams vs. North Carolina, 317 U.S. 287, 299 (1942). 

As such, a court without personal jurisdiction over a defendant can still grant a divorce.  The only issue would be property division.  E.g. Pierce vs. Pierce, 42 so.3d 658, 659 (Miss. Ct. App. 2010)(Washington court granted divorce to military husband against Mississippi wife, but lack jurisdiction to divide property).  For this, personal jurisdiction is required. 

The Due Process Clause of the Fourteenth Amendment provides: "No State shall . . . deprive any person of life, liberty, or property without due process of law. . . ." U.S. Const. amend. XIV. Regarding the Due Process Clause and personal jurisdiction, the United States Supreme Court has held:

[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.

Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The general principle regarding the exercise of jurisdiction over a nonresident is that he "may not be subjected to a litigation in a foreign jurisdiction unless he has `certain minimum contacts with it such that the maintenance of the suit does not offend the traditional notions of fair play and substantial justice'. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95, 102 (1945)." Administrators of the Tulane Ed. Fund v. Cooley, 462 So.2d 696, 702 (Miss. 1984).

These contacts must amount to something more than occasional "fortuitous" instances where the defendant had in the past come into some casual, isolated contact with an in-state resident. Cooley, 462 So.2d at 703 (citing Worldwide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 566, 62 L.Ed.2d 490, 500 (1980)).  "Purposeful activity" by a non-resident in the forum state may subject him to in personam jurisdiction there. If a nonresident corporate or individual defendant has "purposefully availed itself of the privilege of conducting activities within the forum state", then it is considered not "unfair" that the nonresident's important rights be adjudged in that forum. Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283, 1298 (1958). See Wilkinson v. Mercantile National Bank, 529 So.2d 616, 618-20 (Miss. 1988); Anderson v. Sonat Exploration Co., 523 So.2d 1024, 1026-27 (Miss. 1988).

There is no constitutional imperative that the action arise out of the non-resident defendant's contacts/activities in this state. Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404, 411 (1984); Perkins v. Benquet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952); Administrators of the Tulane Educational Fund v. Cooley, 462 So.2d 696, 703 (Miss. 1984). All that is required is that the non-resident defendant have continuous and systematic general contacts with this state. See Restatement (Second) of Conflict of Laws § 35(3) (1971).  As the Fifth Circuit held in Stripling v. Jordan Production Co., LLC, a defendant's single act is sufficient to confer personal jurisdiction "so long as the defendant `reasonably anticipate[s] being haled into court' in the forum state.