Jurisdiction and Venue in a Georgia Divorce - Where Do I File?

In our modern society of mobility and common family moves between states, sometimes together, sometimes separate, determining the correct county in which to file a divorce, or even the correct state to hear a custody dispute can be a challenge. This is especially true if children are living in one state and one of the parents is living in another, and either parent is seeking a divorce. There are equally complicated post divorce jurisdictional and venue issues if either parent is seeking a modification of custody or support and one or both have moved from the county that issued the final custody or support order. Contact Atlanta Divorce Lawyer Russell Hippe regarding any considerations of jurisdiction and venue when going through a Georgia divorce.

Generally speaking, jurisdiction is the power of a court to hear a particular matter and enter a binding order against a particular defendant. Jurisdiction is broken down into subject matter - the power of a court to hear a particular type of case - and personal - the power of the court to enter an order binding on a defendant. In Georgia, the superior courts have “exclusive jurisdiction” to hear divorce, alimony and child support cases. (Juvenile Courts have exclusive jurisdiction over deprivation actions and the termination of parental rights.) Accordingly, a divorce has to be filed in Superior Court. Secondly, per O.C.G.A. section 19-5-2, the Plaintiff / Petitioner has to have been a “bona find resident of this state for six months before the filing of the petition.” If a divorce action is not filed in superior court, and/or if the Plaintiff has not been a resident of Georgia for six months prior to the filing, the court does not have subject matter jurisdiction. Subject matter jurisdiction cannot be waived.

For a Georgia superior court to have the power to bind an individual defendant to an award of alimony, child support, or property situated outside of Georgia, there must be valid service of the summons and complaint on a defendant who is a resident of the State of Georgia. Or, if the defendant is not a resident of Georgia, there must be valid service of the summons and complaint on a defendant who maintained a matrimonial domicile in Georgia at the time of the commencement of the action or who previously resided in Georgia and who continues to maintain such minimum contacts with the State of Georgia such that the exercise of personal jurisdiction comports with notions of “fair play” and “substantial justice”. See, the Georgia Long Arm Statute – O.C.G.A. section 9-10-91.

It is important to remember that the Plaintiff (especially if he or she is not a resident of Georgia) consents to the jurisdiction and venue of a particular court by virtue of filing the action and is subject to any valid counterclaim by the defendant. (It is common for divorcing spouses to counterclaim for divorce.) Further, a defendant can waive personal jurisdiction and consent to jurisdiction and venue in a particular Georgia court, even if the Defendant lives in another county or another state.

However, personal jurisdiction over a defendant is not necessary for a Georgia court simply to dissolve the marriage or to award property situated in Georgia. See, Abernathy v. Abernathy, 267 Ga. 815 (1997) (trial court has jurisdiction over the res of the marriage and can enter an order dissolving the marriage / granting the divorce without personal jurisdiction over the defendant).

Venue refers to the proper county within the State of Georgia to hear a particular case. Generally speaking, as a constitutional mandate, the defendant is entitled to be sued in the county of his or her residence. However, there is an exception in the divorce context. See, Rymuza v. Rymuza, 292 Ga. 98 (2012) (a divorce may be filed in the county of the residence of the plaintiff if the defendant has moved from that same county within six month from the date of filing and this county was the site of the marital residence at the time of separation).

It is also important to keep in mind that personal jurisdiction and venue issues defenses can be waived either expressly by agreement or by failing to file a timely answer or motion to dismiss raising these defenses or otherwise in failing to properly object to a court’s lack of personal jurisdiction or improper venue. See, Crutchfield v. Lawson, 294 Ga. 407 (2014) (party expressly consented on record to jurisdiction of court other than court that entered the final decree to hear matter of contempt).

The jurisdiction and venue issue are case by case and are potentially complex depending on the facts of each situation (especially if military families are involved - these general rules noted my vary for military families). The below examples may be helpful:

(1) Husband and Wife have been residents of Georgia for six months or more and both still live in the same household or the same county. This is easy. Either party can file in the county whether they both live at any time.

(2) Neither Husband or Wife have been a resident of Georgia for six months. In this situation, the parties have to wait to file an action in Georgia until the six months have lapsed. O.C.G.A. section 19-5-2.

(3) Wife has been a resident of Georgia for six months or more. Husband has moved directly from the marital residence to another county and she has remained in the former marital residence. If Wife files within six month from the date of separation, she can file in her county. If more than six (6) months has elapsed since the date of separation, then she has to file in the county of his residence.

(1) Wife has been a resident of Georgia for six months but Husband has moved out of Georgia. Where does she file? Wife may file the divorce in the county of her residence. See, Gates v. Gates, 197 Ga. 11 (1943) (general historic rule is that divorce shall be filed in the county of defendant’s residence if a resident of Georgia, but, if not, in the plaintiff’s county of residence).

The Wife will have to attempt personal service on Husband out of state pursuant to the Georgia Long Arm Statute (rules for jurisdiction over non-resident persons and entities). See, O.C.G.A. section 9-10-91(5). And, in order to be legally subject to the financial aspects of a divorce order here in Georgia, even after proper personal service, Husband will have to have sufficient contacts “minimum contacts” with Georgia (for example, owning property here, filing tax returns here, doing business here, or extensive travel here). This jurisdictional rule, stated slightly differently, is: for a Georgia court to have the power to enter a legally binding financial decision over a non-resident in a divorce (divide non Georgia property and/or set child or spousal support), the defendant must have sufficient “minimal contacts” with the State of Georgia to satisfy due process. See, Ennis v. Ennis, 290 Ga. 890 (2012). See also, Walters v. Walters, 277 Ga. 221 (2003) (out of state defendant who asserts lack of personal jurisdiction by virtue of lack of sufficient contact with Georgia has burden of proving it).

Note: If Wife is unable to secure personal service or if Husband has no contact with Georgia, all hope is not lost. As noted, Wife can still obtain an order of divorce and an order dividing property located within Georgia even without personal jurisdiction over Husband.

(2) If children are involved, and the parent / spouses are residents of different states, the UCCJEA will come into play. The UCCJEA is a uniform law enacted by the states that helps establish which court - Georgia or another state - will decide custody. Emphasis is placed on the “home state” of the child or children.

(3) Wife is a non-resident and wants to file divorce in Georgia. Husband has been a Georgia resident for more than six (6) months. Can wife file here? Yes. See, Tanis v. Tanis, 240 Ga. 718 (1978). Wife submits herself to the jurisdiction and venue of the Georgia court by virtue of the filing. If children are involved, Wife should consider her rights to file in her home state under the UCCJEA, but a suit here would avoid the expense and hassle of hearings and a legal fight over which state has the right to make the initial custody determination.