Jurisdictional Defenses for Divorce and Family Law Cases

Jurisdictional Defenses for Divorce and Family Law Cases

Divorce Attorneys Family Lawyers Roswell GeorgiaJurisdictional Defenses in Georgia divorce and family law cases present obligations and opportunities that, if properly handled, can result in a cost effective victory in preliminary matters that may set the tone for the final outcome of your case. It is important that your have an attorney that is well versed in jurisdictional defenses whether you are the defendant or the plaintiff.

Improper Venue or Jurisdiction

If you have been served with divorce, and do not invoke a jurisdictional defense in your counterclaim, you will not be afforded this defense later in the process. Based on O.C.G.A. § 9-11-12(h), “a general appearance by a defendant in an action in a court having jurisdiction of the subject matter amounts to a waiver of the issuance of, or defects in the process served, and confers jurisdiction of his person regardless of the fact that the process was not served on him or that service may have been defective.”

Therefore, in answering a complaint for divorce, your attorney should advise you on whether any jurisdictional defenses can be invoked in order to avoid inconveniences such as a hostile court or large distances between your home and the court. Divorce is stressful enough; the last thing you should be dealing with is an issue that could have been avoided early on by noticing and addressing it in your answer and counterclaim.

Common Examples

A common example in Georgia divorce and family law cases of an inconvenience that could have been avoided by invoking a jurisdictional defense is when a couple lives in one state, such as California, but have a vacation home in Georgia. Now, let’s say the husband, who has moved into the vacation home as the result of a separation, files for divorce in Georgia and serves his wife while she is visiting. When she replies, she fails to assert jurisdictional defenses of a lack of personal jurisdiction or improper venue and is stuck litigating her divorce in a foreign court, far from where she resides. To avoid such a scenario, your attorney will assert a jurisdictional defense such as improper venue, lack of jurisdiction over person, insufficiency of process, and insufficiency of service of process.

Since divorce cases can be tried in the county in which the defendant resides if he is a residence of the state, improper venue (O.C.G.A. § 9-11-12(b)(3)), is a common jurisdictional defense that can alleviate travel or foreign court issues if asserted. Just like an improper venue defense, a personal jurisdiction defense cannot be invoked if the plaintiff submits himself personally to the jurisdiction of the court by filing a complaint and acknowledging the service without objecting to the jurisdiction or venue.

A common example where jurisdiction may be proper but venue is not would be if you live in (for example) Fulton County, and your spouse lives in Forsyth County. Even though the two counties share a border, if your spouse files for divorce in Forsyth County and has you served in Fulton County, you can object to the case moving forward in Forsyth County. The most common outcome for a case like this is that the case is moved to the county of the Defendant (in this example: Fulton County) and your spouse would have to pay an additional filing fee to the court for the case to be moved.  If the fee is not paid, the case may be dismissed. Most likely, the original divorce case would not be dismissed without ample time being given for your spouse to move the case to the county you reside (in this example, from Forsyth County to Fulton County).  Once the case is moved, it will be assigned a new case number by the court and proceed normally, as if it had always been filed in the property county with proper venue.

Insufficient Service of Process

An insufficient service of process defense works when there has been a defect in the summons. According to O.C.G.A. § 9-11-4(b), contents of a proper summons are necessary in order to assert jurisdiction over a defendant. There are many examples of a defect in summons which your lawyer will know about. An example would be failing to properly serve the respondent with a Rule Ni Si when filing a contempt action.  Example of a Rule Ni Si >>

Raising and Preserving a Defense

No matter the nature, any jurisdictional defense must be raised by answer and must be resolved at a preliminary hearing before trial. If they are raised in a timely manner and approved, discovery will be stayed and the plaintiff will have a duty to correct the jurisdictional defects.

There are two ways in which you can preserve a Jurisdictional Defense. The first is by asserting it in the initial proceeding and the second is by asserting it by a motion in writing before or at the time of the pleading. Thus, prior to answering a complaint, the defense counsel has a duty to explore the circumstances surrounding jurisdiction, venue, and service. If warranted, it also has the duty to raise appropriate jurisdictional defenses by answer or motion.

If you are facing a divorce or family law cases and feel that jurisdiction or venue are not proper, call us at  770-609-1247 to discuss your case with one of our experienced divorce and family law attorneys.

Revised: 2017-08-23

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