Step by Step Guide to Filing for Divorce in the Right Venue
Venue is the procedural law that directs the litigants on where the case should be initiated within the state’s territory. That is, which county may the family law case be brought or the matter prosecuted. The rules controlling venue dictate which of Arizona’s 16 counties is the proper county for the cause of action. Under A.R.S. § 12-401(13), “Actions for dissolution of marriage or legal separation shall be brought in the county in which a petitioner is residing at the time the action is filed.” The parties may consent to a change of venue, and in some circumstances there may be a change of venue for good and sufficient cause. A.R.S. § 12-406.
Jurisdictional matters are more complicated because there are different types of jurisdiction. Before a court may render a decision, it must have the power and authority over the subject matter (divorce, contracts, probate, etc.), over both parties, and over the things in dispute.
Subject Matter Jurisdiction
Our Arizona Superior Courts have original subject matter jurisdiction over divorce, legal separation, child custody and support, and annulments. Arizona Constitution, Article VI § 14. When a Petitioner files the Petition for Dissolution of Marriage, one of the parties, it doesn’t matter which party, must have been domiciled in Arizona for 90 days or more before commencement of the action. A.R.S. § 25-312. Domiciled generally means the person is a permanent resident. But if one party is in the military and stationed in Arizona, at Fort Huachuca for example, then military presence within the state for 90 days is sufficient.
Under the Arizona Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), the court’s subject matter jurisdiction over child custody and visitation issues depends upon: (1) Whether Arizona is the place where the child has lived for the most recent six months (“home state” jurisdiction); or (2) whether Arizona has the most significant connection with the child and at least one parent, in terms of evidence, contacts and the like; or (3) whether the child is physically present in Arizona and needs protection based on abandonment or some emergency, or (4) whether no other state is able to assert jurisdiction, or chooses to assert jurisdiction if it could, and it is in the child’s best interests for Arizona to assume jurisdiction. If none of these bases for custody jurisdiction exist, the court is required to dismiss the action, even if no party moves for dismissal. Therefore, the Superior Court cannot hear a case when subject matter jurisdiction is not present, even when both parties want that court to hear the case.
The court must also exercise “in personam jurisdiction,” or personal jurisdiction, over both the Petitioner and the Respondent. The court needs power over both parties to order the payment of money or to divide assets when the property is located outside Arizona’s territory.
When a person files a Petition, he or she voluntarily submits to the personal jurisdiction of the court. Personal jurisdiction over the Respondent is more complicated. The court has power over the Respondent when court process has been properly served on that person and such service is consistent with state statutes and federal constitutional due process, as follows:
- ONE. The Respondent (or defendant) is served while he or she is physically present in the state. The Respondent doesn’t need to be a resident, or even staying in Arizona for any significant length of time. Service may be made while the Respondent is passing through Arizona — for example, on the way to New Mexico from California.
- TWO. If the Respondent signs an Acceptance of Service, then he or she voluntarily consents to the court’s jurisdiction over the person.
- THREE. The Respondent may voluntarily consent to the Superior Court’s jurisdiction by appearing or filing a responsive pleading in the action.
- FOUR. The court may exercise what is called “long arm jurisdiction” over the person if he or she is domiciled out-of-state. For our courts to exercise personal long arm jurisdiction, the Respondent party must have sufficient contacts with Arizona, but need not be present here. The out-of-state Respondent can be served by a private process server or by certified mail requiring his or her signature on the receipt.
In Rem Jurisdiction
Lastly, the Arizona Superior Court has “in rem jurisdiction” to divide the couple’s assets when those things are actually located within the state’s territory. In rem jurisdiction is the court’s power and authority over the thing, whatever that happens to be.
For further reading, here are some important Arizona family law jurisdictional statutes:
- A.R.S. § 12-401: Venue
- A.R.S. § 12-406: Change of Venue for Cause; Grounds; Bond; Appeal
- A.R.S. § 25-311: Jurisdiction [Over Divorce and Legal Separation]; Form of Petition; Award of Decree
- A.R.S. § 25-381.08: Jurisdiction [of Conciliation Court]
- A.R.S. § 25-401: Jurisdiction [Over Child Custody]; Commencement of Proceedings
- A.R.S. § 25-502: Jurisdiction, Venue and Procedure [Over Child Support]; Additional Enforcement Provisions
- A.R.S. § 25-552: Jurisdiction [Over Spousal Maintenance]; Priority of Action
- A.R.S. § 25-801: Jurisdiction [Over Maternity or Paternity Establishment]
- A.R.S. § 25-1031: Initial Child Custody Jurisdiction
- A.R.S. § 25-1032: Exclusive Continuing Jurisdiction [Over Child Custody]
- A.R.S. § 25-1221: Bases for Jurisdiction Ove