Jurisdiction in Divorce

Courthouse

Is personal jurisdiction necessary to get a dissolution of marriage in Colorado? Generally, yes. But the details vary. Personal jurisdiction deals with the power of the court to enter orders as to a person or a thing. If there is property in a geographic location where the court is sitting, the court likely has personal jurisdiction over that property which is known as in rem jurisdiction. Personal jurisdiction over a person is known as in personam jurisdiction. What is the significance of this distinction as applied to a dissolution of marriage in Colorado? A big one.

 

If the Petitioner (the one who files for divorce) files a petition against the spouse but is unable to personally serve the spouse with notice of the dissolution, the court can still enter orders dissolving the marriage, disposing of the in-state property, and custody. Why? Because the marriage itself and the in-state property are in rem and the necessary personal jurisdiction can be conferred through publication as long as the court grants the motion for the publication, which generally requires a showing that due diligence has been made to first try personal service. Children involve special jurisdictional rules which allow custodial determinations without personal service under certain circumstances. So, it is possible to get a dissolution of marriage, the children, and the in-state property, without the other spouse ever knowing what happened.

 

However, personal service is required for any orders which require the spouse to do anything such as pay maintenance, child support and attorneys fees. It is also required for any orders regarding property located out of the state. A couple caveats: First, the spouse could waive any service by simply filing an appearance or answer, or even filing as a co-Petitioner. Second, service on an out-of-state spouse might still not be sufficient if the spouse does not have any contacts with Colorado, such as never having a marital domicile here or never having conceived of a child here.