PAY ATTENTION TO JURISDICTION AND VENUE FOR DIVORCE

February 15, 2011 § Leave a comment

Before a Mississippi Chancery Court can consider whether to grant a divorce, it must make four fundamental findings:

  1. That the parties were married to each other (subject matter jurisdiction);
  2. That the parties are properly before the court by process and notice (personal jurisdiction);
  3. That the action is filed in the appropriate county (venue, also called “venue jurisdiction”); and
  4. That at least one of the parties meets the statutory residency requirement, and that residence in Mississippi was not obtained in order to get a divorce. 

These are commonly referred to as the “jurisdictional facts,” and you can not even get to address whether there are grounds, or equitable distribution, or any other divorce issues unless the jurisdictional facts are established in the record.

If you are in doubt about the proper venue of your action, consulting MCA § 93-5-11 will give you the answer. 

All of the above may appear elementary to you, but it is astonishing to me how many contested divorce cases I see presented where neither attorney establishes even one or more of the jurisdictional facts, and there are many where none of them are mentioned.  In some cases, I have invoked MRE 614(b) to get the information myself into the record; after all, if I lack subject matter jurisdiction or venue is improper any action I take is void, and if I lack personal jurisdiction any action is voidable.

Remember that your pleadings are not evidence.  Just because you pled it does not put it into the record.  If you don’t establish jurisdiction on the record so that the judge’s finding of jurisdiction is supported by evidence, you are leaving your client’s judgment vulnerable to attack by the disgruntled other party.

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