How do I know which court I should file my suit for divorce in?
In order to initiate a proper divorce action in Georgia, one must bring the case before an appropriate court. A court is deemed “appropriate” if the following three criteria are satisfied:
(1) the court has jurisdiction over the subject matter of the case;
(2) the court has jurisdiction over the parties involved (i.e., personal jurisdiction); and
(3) the court is a proper venue for the action.
The following is a synopsis of what each of these criteria mean and how to tell if they are satisfied.
Subject Matter Jurisdiction
Of the three criteria listed above, subject matter jurisdiction is the most important. This is because, unlike personal jurisdiction and venue, it is absolutely essential for a court to have jurisdiction over the subject matter of the case before it. Otherwise, the case can be dismissed at any time or even be overturned after the fact. Because of this, it is of the utmost importance to make sure that the court you are filing in has subject matter jurisdiction over the type of action you are filing.
But what is subject matter jurisdiction? Simply put, subject matter jurisdiction means that a court must have been granted the authority to hear a particular type of case. This authority is derived from either the Constitution of Georgia or the Georgia General Assembly.
Fortunately, when it comes to divorce cases in Georgia, it is simple to determine which court has subject matter jurisdiction. Article VI Section IV of Georgia’s Constitution confers on superior courts exclusive subject matter jurisdiction over divorce cases. Therefore, if a divorce action is filed in any other type of court, it is subject to dismissal.
Simply filing a divorce action in a superior court is not enough, however. There must also be a valid, subsisting marriage that one is seeking a divorce from, and one of the parties involved must be a resident of or domiciled in the state of Georgia for at least six consecutive months immediately prior to the date of filing. Without both of these elements, Georgia’s superior courts lack the authority to hear your divorce case because they do not have subject matter jurisdiction.
Personal jurisdiction means that a court has jurisdiction over each of the parties involved. However, under certain circumstances, it is not always necessary for a court to have personal jurisdiction over both parties in a divorce action. In Georgia, a court is permitted to grant a divorce when personal jurisdiction is only established over the party filing for divorce, but only if
(1) the filing party can show that the matrimonial residence was within the state for at least six months at the time of filing, and
(2) the filing party is just seeking a divorce. If the filing party is seeking other forms of relief (e.g., alimony, attorney’s fees, etc.),
then personal jurisdiction must be established over the defending party as well.
Personal jurisdiction may be established in multiple ways. How it is established depends on the actions of the parties. In regard to the person filing for divorce, personal jurisdiction is automatically assumed over them because they are voluntarily submitting to the court’s jurisdiction.
When it comes to establishing personal jurisdiction over a defendant, things can get more complex. First, the defendant can simply waive or consent to personal jurisdiction. If the defendant does not refute the court’s personal jurisdiction over him/her in their answer, then consent is automatically assumed. Second, if the defendant is an out of state resident, Georgia’s Long Arm Statute (See O.C.G.A. § 9-10-91) can establish personal jurisdiction over the defendant.
To satisfy the Georgia Long Arm Statute, there must be a valid service of process on a defendant that either had a matrimonial domicile in Georgia when the suit was filed or previously resided in Georgia and continues to possess minimum contacts with the state such that the exercise of personal jurisdiction does not violate “traditional notions of fair play and substantial justice.” Lastly, regardless of whether the defendant is a resident or not, personal jurisdiction may be established over the defendant if they are personally served while within Georgia’s borders (unless another judicial matter compelled them to come within the state).
Venue refers to where a case is filed. A venue is proper for a divorce action if it conforms with Article VI Section II Paragraph I of Georgia’s Constitution. Also, under certain circumstances venue can be proper in more than one court. By following the rules below, one can ensure they file their divorce action in a proper venue.
The default rule is that venue is always proper in the county where the defendant resides. See Clark v. Hilliard, 19 Ga. App. 514, 91 S.E. 926 (1917). However, venue may also be proper in the county where the plaintiff resides if:
(1) the defendant is not a resident of this state, or
(2) the defendant has moved from the county where the plaintiff resides within six months of the plaintiff filing suit and that county was where the marriage was domiciled when the parties were separated.
Like personal jurisdiction, a defendant may waive their right to challenge the venue (by not raising the issue when they file their answer) or give their consent to the venue. Either way, the defendant’s action will automatically make the venue proper. In the event a case is filed in an improper venue and the defendant properly raises this issue, then the court must transfer the case to a court that has proper venue. By making sure you originally file in a court of proper venue, you can save yourself, the court, and all other parties the time and expense associated with transferring to another venue.
In sum, a divorce action cannot be properly filed in Georgia if a court does not have jurisdiction over the subject matter (i.e., the marriage), personal jurisdiction over the parties, and if the venue is not proper. Even with the information listed above, it can be difficult navigating the court system to satisfy each of these criteria. It is recommended that anyone filing for a divorce consult a competent attorney to determine an appropriate course of action.
Obtaining help with your case.
If you are facing a divorce or family law case and have questions about where your case should be filed, jurisdiction or venue, call us at 770-609-1247 to speak with one of our experienced Georgia divorce and family law attorneys. Contact >