Why a New Uniform Equitable Distribution Jurisdiction Act is Needed to Reduce Forum Shopping in Divorce Litigation

25 Pages Posted: 23 Sep 2015

Date Written: September 21, 2015


In the U. S., when married parents with a minor child divorce, the most significant issues commonly pertain to (i) custody, (ii) support and (iii) property division. Rules governing when a U.S. divorce court may assert jurisdiction over these issues in a family law case are not uniform. For example, for custody adjudications there is a home state preference. “Home state” is generally defined as the state where the child has been living for at least 6 continuous months as of the date the action was filed, ignoring temporary absences. For custody disputes, home state status also continues for up to 6 months in those situations where the forum was the child’s home state, one parent moved with the child to another state, and the other parent remains in the forum.

For support issues, there is also a home state preference, but for purposes of support home state status ends as soon as the child moves away. So, if a child has established a home state and then one parent moves with the child to another state (and no legal action has yet been filed), home state status immediately ends for purposes of support but not for custody. For purposes of support, if there is no home state, any state that has personal jurisdiction over the obligor can render a support order. Priority is given to the state where the first action for support is filed. “Personal jurisdiction” exists if there are substantial contacts between the forum and the obligor, or the obligor is served with process in the forum. So, if parents have lived in state #1 for years with the child and then one parent moves to state #2 with the child and shortly thereafter files an action for custody and support in state #2, the state #2 court would have to defer to a court in state #1 for custody but not for support. The state #2 court could render a support order if the court has personal jurisdiction over the obligor.

For purposes of property division at divorce, to assume jurisdiction the court generally must have personal jurisdiction over both parties. There currently are no generally accepted principles for jurisdictional priority for property division. The most commonly accepted current approach is that the court where the action was first filed should divide the marital estate, as long as that court has personal jurisdiction over both parties, regardless of whether the parties have more substantial contacts with another state.

The lack of a sensible system of jurisdictional priority for support and property division can lead to forum shopping and a race to the courthouse. In the U. S., issues in a divorce are resolved based on state law. State support and property division rules vary significantly. The current majority U. S. approach is that the divorce court which assumes jurisdiction applies its own internal family law rules to govern support and property division. This can give a spouse an incentive to file the action first in a forum whose laws would yield a result desired by that spouse. In addition to this concern regarding forum shopping, the lack of a uniform system for jurisdictional priority can lead to different issues being heard in courts in different states, which can be expensive and inconvenient for the parties.

It would be sensible to have a more coherent set of rules for priority of jurisdiction in U. S. family law matters. In this paper I propose such a set of rules. I build on the already accepted principle of “home state” as it is now applied for custody matters. I propose generally that rules be adopted so that, if parties are divorcing with a minor child, and the child has a home state, that court should presumptively hear all matters in the divorce. If parties do not have a minor child, I propose that the economic aspects of the divorce should presumptively be adjudicated by a court in the state where the parties last had a common domicile for at least 6 months.

Keywords: Mobile spouses, Divorce, Marital property, Equitable distribution, Choice of law, Jurisdiction

Suggested Citation

Oldham, J. Thomas, Why a New Uniform Equitable Distribution Jurisdiction Act is Needed to Reduce Forum Shopping in Divorce Litigation (September 21, 2015). 49 Family Law Quarterly 359 (2015), U of Houston Law Center No. 2015-A-20, Available at SSRN: https://ssrn.com/abstract=2663678

J. Thomas Oldham (Contact Author)

University of Houston Law Center ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States

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