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CA court’s power to make divorce orders when one spouse does not live in CA

By Atty. Kenneth Reyes

This is a common question among people contemplating divorce in California when the other spouse does not live in the state.  The California Courts has the power to grant a divorce, annulment, or legal separation if either party is domiciled in the state.  Domicile is where a person lives and intends to remain.  However, there is an additional requirement if you are seeking a divorce rather than annulment or legal separation.  To obtain a divorce in California, one of the parties must have been a resident of California for six months immediately before the filing of the divorce petition.  Responding spouses can use this requirement as a defense if the Petitioning spouse does not meet such requirement when the petitioner filed for divorce.  In addition, divorce petitions may be filed in the county where at least one spouse resided for 3 months immediately prior to filing the petition.

Now apart from getting a divorce, legal separation, or annulled status, there may be issues relating to distributing community and separate properties between the spouses and awarding support payments.  In order for the California Courts to have the power to make orders, the California Courts must have personal jurisdiction over the respondent.

Personal jurisdiction means the respondent has minimum contacts with California even if not physically here.  Some of the factors looked at is respondents presence in the state, domicile, residence, citizenship, consent, appearance in the action, doing business in the state, doing an act that causes an effect in the state, ownership in the state, other relationship to the state.  If the respondent does not have minimum contact with California, respondent may challenge any orders relating to distribution of property and support based on the court’s lack of jurisdiction.

With regards to initial child custody issues, these issues are resolved under the Uniform Child Custody Jurisdiction and Enforcement Act.  California Courts have the power to make initial custody orders if it is the child’s home state at the time the action was filed.   California may also assume power to make custody orders if California has been the child’s home state within six months before the action was filed, the child is absent form California, and a parent continues to live in California.

California may also exercise jurisdiction when no other  state is the child’s home state or when all court’s having jurisdiction over the child has declined to act and deferred to California as the more appropriate place to make custody orders.  California may also exercise jurisdiction if no other state would have jurisdiction over the child.

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Attorney Kenneth Reyes is a graduate of Southwestern University School of Law in Los Angeles. He is the former President of the Philippine American Bar Association. He is a member of the American Immigration Lawyer’s Association (AILA) and the Los Angeles County Bar Association, Immigration and Family Law Sections. You may contact Atty. Reyes at (213) 388-1611 or via e-mail at kureyeslaw@aol.com.  LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 700, Los Angeles, CA.

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