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Except as otherwise provided in N.J.S.A. 2A:34-68, the Superior Court has jurisdiction under the New Jersey Uniform Child Custody Jurisdiction and Enforcement Act, N.J.S.A. 2A:34-53 to -95 (the “UCCJEA”) to make an initial child custody determination or modification decree if:

(1) this State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State;
(2) a court of another state does not have jurisdiction under paragraph (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under section 19 or 20 of this act [N.J.S.A. 2A:34-71 or 2A:34-72] and:

(a) the child and the child’s parents, or the child and at least one parent or a person acting as a parent have a significant connection with this State other than mere physical presence; and
(b) substantial evidence is available in this State concerning the child’s care, protection, training and personal relationships;

(3) all courts having jurisdiction under paragraph (1) or (2) of this subsection have declined to exercise jurisdiction on the ground that a court of this State is the more appropriate forum to determine the custody of the child under section 19 or 20 of this act; or
(4) no state would have jurisdiction under paragraph (1), (2) or (3) of this subsection.

[N.J.S.A. 2A:34-65.]

The parties cannot confer jurisdiction on a New Jersey court by agreeing to the entry of a consent order if New Jersey’s exercise of jurisdiction is not authorized by the UCCJEA. See Peregoy v. Peregoy, 358 N.J. Super. 179, 184 (App. Div. 2003).

Under the UCCJEA a New Jersey court does not have jurisdiction to modify New York custody orders unless New Jersey was the children’s “home state” at the time plaintiff filed his motion for custody and other relief.

The term “home state” is defined in N.J.S.A. 2A:34-54 to mean:

the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

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Paragraph h of N.J.S.A. 2A:34-23 provides:

[I]n all actions where a judgment of divorce, dissolution of civil union, divorce from bed and board or legal separation from a partner in a civil union couple is entered the court may make such award or awards to the parties, in addition to alimony and maintenance, to effectuate an equitable distribution of the property, both real and personal, which was legally and beneficially acquired by them or either of them during the marriage or civil union.

N.J.S.A. 2A:34-8 provides:

The Superior Court shall have jurisdiction of all causes of divorce, dissolution of a civil union, bed and board divorce, legal separation from a partner in a civil union couple or nullity when either party is a bona fide resident of this State. The Superior Court shall have jurisdiction of an action for alimony and maintenance when the defendant is subject to the personal jurisdiction of the court, is a resident of this State, or has tangible or intangible real or personal property within the jurisdiction of the court. The Superior Court may afford incidental relief as in other cases of an equitable nature and by rule of court may determine the venue of matrimonial and civil union actions.

N.J.S.A. 2A:34-8 is not fairly read as silent on the question of grounds to adjudicate equitable distribution.

The final sentence of N.J.S.A. 2A:34-8 addresses jurisdiction to “afford incidental relief.” Equitable distribution is relief incidental to dissolution of the marriage; the right arises when a judgment of divorce is entered and is based upon the spouses’ respective contributions during the marriage. Carr v. Carr, 120 N.J. 336, 342-48 (1990). Thus, N.J.S.A. 2A:34-8 is not silent on the circumstances under which our courts have jurisdiction to distribute marital property; courts are directed to exercise that jurisdiction “as in other cases of an equitable nature.”

N.J.S.A. 2A:34-23 addresses child support as well as alimony and equitable distribution, and its introductory paragraph includes a reference to custody of children and counsel fees as well. The most reasonable interpretation of these related statutes is that the catchall provision included in the final sentence of N.J.S.A. 2A:34-8 applies to all of these forms of “relief,” each of which, depending upon the circumstances of the parties, may be “incidental” to dissolution of a marriage.

The United States Constitution does not require personal jurisdiction over both parties to a marriage to dissolve their marital status so long as one is domiciled within the state. Williams, supra, 317 U.S. at 298-99, 63 S. Ct. at 213, 87 L. Ed. at 286. Nonetheless, a court with jurisdiction to adjudicate the cause of action must have an independent ground for exercise of jurisdiction to grant any incidental relief including equitable distribution.

“[A] court cannot adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant.” Vanderbilt v. Vanderbilt, 354 U.S. 416, 418, 77 S. Ct. 1360, 1362, 1 L. Ed. 2d 1456, 1459 (1957) (concluding that a divorce decree entered by a court with jurisdiction to adjudicate the cause of action but lacking personal jurisdiction over the defendant wife could not adjudicate her right to alimony). In that sense, jurisdiction to adjudicate a divorce and incidental relief is “divisible.” Estin v. Estin, 334 U.S. 541, 549, 68 S. Ct. 1213, 1218, 92 L. Ed. 1561, 1569 (1948). There must be personal jurisdiction to adjudicate personal obligations except that “[i]f a defendant has property in a State [a court of that state] can adjudicate his obligations, but only to the extent of his interest in that property.” Vanderbilt, supra, 354 U.S. at 419 n.6, 77 S. Ct. at 1363 n.6, 1 L. Ed. 2d at 1459 n.6 (referencing Pennington v. Fourth Nat’l Bank of Cincinnati, 243 U.S. 269, 37 S. Ct. 282, 61 L. Ed. 713 (1917) and Harris v. Balk, 198 U.S. 215, 25 S. Ct. 625, 49 L. Ed. 1023 (1905)); see id. at 419 n.7, 77 S. Ct. at 1363 n.7, 1 L. Ed. 2d at 1459 n.7 (adopting the reasoning of the concurring opinion in Armstrong v. Armstrong, 350 U.S. 568, 575, 76 S. Ct. 629, 633, 100 L. Ed. 705, 712 (1956) (Black, J., concurring)).

The division of the cause of action and incidental relief related to property, as well as personal obligations, requires a separate evaluation of the constitutional basis for exercise of jurisdiction. See Armstrong, supra, 350 U.S. at 580 n.3, 76 S. Ct. at 636 n.3, 100 L. Ed. at 715 n.3 (discussing permissible distribution of “personal property” in possession of the resident spouse); id. at 580 n.6, 76 S. Ct. at 636 n.6, 100 L. Ed. at 715 n.6 (quoting a prior decision in which the Court had approved a divorce decreed by a legislature, not a court, and observed that the question would be different if the decree had “interfere[d] with rights of property vested in either party” (quoting Maynard v. Hill, 125 U.S. 190, 206, 8 S. Ct. 723, 727, 31 L. Ed. 654, 657 (1888))).

In Drobney v. Drobney, 146 N.J. Super. 317, 322 (App. Div. 1977), Judge Pressler stressed the need for a court to consider the extent to which it has the “power to act . . . based upon either personal jurisdiction, in rem jurisdiction or quasi in rem jurisdiction.” As Drobney explains, these principles “are no less applicable to matrimonial litigation than to any other category of civil litigation, particularly in view of the divisible divorce theory.” Id. at 323; see Kulko v. Superior Court of Cal., 436 U.S. 84, 91, 98 S. Ct. 1690, 1696, 56 L. Ed. 2d 132, 140 (1978) (holding, in the context of a child support dispute, that “[t]he Due Process Clause of the Fourteenth Amendment operates as a limitation on the jurisdiction of state courts to enter judgments affecting rights or interests of nonresident defendants”).

Drobney provides additional guidance. “Personal obligations deriving from the marital relationship or its termination, including, among other things, support and alimony, are dependent for adjudication on the court’s acquisition of either personal jurisdiction over defendant or quasi in rem jurisdiction over property in which he has an alienable interest.” Drobney, supra, 146 N.J. Super. at 323. While Drobney concerned child support, the court noted that although there was “no decision in this State regarding the jurisdictional basis upon which equitable distribution claims may proceed, it is at least clear that as to property located within the State, in rem jurisdiction is sufficient.” Id. at 323 n.2.

There is no authority for the proposition that a court of this State may, consistent with due process, exercise its subject matter jurisdiction to distribute marital assets solely on the ground that one spouse has been a bona fide resident for the requisite period of time to grant a divorce. Our courts have taken the contrary view. In Slodowski v. Slodowski, 156 N.J. Super. 376, 380-81 (Ch. Div. 1978), the court concluded that a distribution of real property in New Jersey directed by a court of another state as an incident of an otherwise valid divorce was not entitled to full faith and credit because that court did not have jurisdiction over the real estate or over the person of the defendant. Conversely, in Higginbotham v. Higginbotham, 92 N.J. Super. 18, 35-36 (App. Div. 1966), where the court of another state had personal jurisdiction over both spouses, this court concluded that a provision of the divorce decree affecting title to real estate in New Jersey was entitled to full faith and credit.

When the property rights of a non-resident spouse are at issue, it is generally accepted that there is a necessity for a basis of jurisdiction in addition to the domicile of one party. See, e.g., Conlon v. Heckler, 719 F.2d 788, 796 (5th Cir. 1983) (noting a divorce decree entered by a court lacking in personam jurisdiction over one party is entitled to full faith and credit but “not . . . conclusive as to all the accoutrements of marriage . . . including alimony, support, custody, and paternity” and rejecting appeal from denial of social security benefits based on paternity determination made in the context of a divorce proceeding); Cottone v. Cottone, 547 A.2d 625, 628-29 (Del. Fam. Ct. 1988) (dismissing husband’s application for distribution of marital property incidental to divorce because wife had “no contacts, minimum or otherwise, with Delaware”); Poston v. Poston, 624 A.2d 853, 855 (Vt.) (noting that “issues other than the dissolution of the marriage are severed from the divorce action when the court does not have personal jurisdiction over one spouse . . . , [and] the judgment does not resolve issues other than the marital status of the parties”), cert. denied, 510 U.S. 816, 114 S. Ct. 66, 126 L. Ed. 2d 35 (1993); Newport v. Newport, 245 S.E.2d 134, 138 (Va. 1978) (same); see also Taddei v. Taddei, 445 A.2d 773, 774 (Pa. Super. Ct. 1982) (court concluded that it had authority to determine the property rights of the parties where a New Jersey judge had entered a judgment of divorce but did not resolve the property issues because the parties had “never lived as husband and wife in New Jersey; the property involved was situated in Pennsylvania, and [the wife] never submitted to New Jersey jurisdiction”). In New York, statutory law specifies the circumstances under which a non-resident spouse has sufficient contacts with the state to permit adjudication of claims for “support, alimony, maintenance, distributive awards or special relief in matrimonial actions” based on personal jurisdiction. N.Y. C.P.L.R. 302(b).

Accordingly, it is clear that jurisdiction to distribute marital assets does not always accompany jurisdiction to adjudicate the cause of action.

A court with personal jurisdiction over both parties may distribute all of the marital assets. Higginbotham, supra, 92 N.J. Super. at 35-36. Personal jurisdiction requires “a sufficient connection between the defendant and the forum State to make it fair to require defense of the action in the forum.” Kulko, supra, 436 U.S. at 91, 98 S. Ct. at 1696; 56 L. Ed. 2d at 141. Personal jurisdiction may be specific, when the “cause of action relates directly to the [defendant's] contacts” with the state, a question which focuses on “the relationship among the defendant, the forum, and the litigation” and cannot be satisfied on the basis of “random, fortuitous, or attenuated contacts.” Lebel v. Everglades Marina, Inc., 115 N.J. 317, 322-23 (1989) (internal quotations omitted). Personal jurisdiction also may be general, a basis that exists regardless of the cause action when “the defendant’s activities in the forum state can be characterized as continuous and systematic contacts.” Id. at 323.

A claim for equitable distribution of financial assets (in financial institutions that have offices or branches in New Jersey) is one that can be exercised, in appropriate circumstances, quasi in rem; “the plaintiff is seeking to secure a pre-existing claim in the subject property and to extinguish or establish the nonexistence of similar interests of particular persons.” Shaffer v. Heitner, 433 U.S. 186, 199 n.17, 97 S. Ct. 2569, 2577 n.17, 53 L. Ed. 2d 683, 695 n.17 (1977) (internal quotations omitted). The claim here is unlike a claim of title to real estate that may “affect[] the interests of all persons in designated property” and can be based on in rem jurisdiction. Ibid.

The presence of financial institutions in New Jersey, like the presence of the national insurance company at issue in Rush v. Savchuk, 444 U.S. 320, 327, 100 S. Ct. 571, 577, 62 L. Ed. 2d 516, 524 (1980), is “fictional” and, from the perspective of the parties may be fortuitous. Ibid. Unlike ownership of tangible property such as real estate or an automobile that is indicative of the owner’s other connections with the forum, the right to collect on assets held by a financial institution, in itself, suggests no additional ties between defendant and every forum in which the institution and one or both of the parties may be found. See ibid.; see generally Dickstein v. Merrill Lynch, 295 N.J. Super. 550, 559-61 (App. Div. 1996) (discussing minimum contacts and financial assets and on that basis concluding that New York had jurisdiction based on the account holders contacts), certif. denied, 149 N.J. 141 (1997); Restatement (Second) of Conflict of Laws, § 65 (1971) (“[a] State has power to exercise judicial jurisdiction to affect interests in an intangible thing which is not embodied in a document if the relationship of the state to the thing and to the parties involved makes the exercise of such jurisdiction possible”); id. at comment a (noting that “[e]xamples of intangible things that are not embodied in a document are simple contract and tort claims, commercial bank deposits and corporate shares that are not embodied in the stock certificate”).

A court may not proceed with equitable distribution based solely on the presence of the financial institutions with which the parties maintain accounts.

See related Blog Post, published in the New Jersey Family Law blog.

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

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With regard to jurisdiction over the divorce action, N.J.S.A. 2A:34-8 states:

The Superior Court shall have jurisdiction of all causes of divorce . . . when either party is a bona fide resident of this State. The Superior Court shall have jurisdiction of an action for alimony and maintenance when the defendant is subject to the personal jurisdiction of the court, is a resident of this State, or has tangible or intangible real or personal property within the jurisdiction of the court . . .

N.J.S.A. 2A:34-10 similarly holds that jurisdiction over divorce matters is acquired when a defendant is served under the court rules and:

1. When, at the time the cause of action arose, either party was a bona fide resident of this State, and has continued so to be down to the time of the commencement of the action . . .; or
2. When, since the cause of the action arose, either party has become and for at least [one] year next preceding the commencement of the action has continued to be, a bona fide resident of this State.

“[T]he words ‘bona fide resident’ are synonymous with ‘domiciliary’ and mean that plaintiff or defendant must be actually domiciled within New Jersey.” Gosschalk v. Gosschalk, 48 N.J. Super. 566, 572 (App. Div.), aff’d, 28 N.J. 73 (1958).

NOTE: My legal services include child custody and visitation, alimony, equitable distribution, and separation agreements.

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In this case, the New Jersey court had subject matter jurisdiction over the custody dispute at that time of the divorce pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA), N.J.S.A. 2A:34-28 to -52. That statute was later repealed and replaced by the Uniform Child Custody Jurisdiction and Enforcement Act, (UCCJEA), N.J.S.A. 2A:34-53 to -95, on December 13, 2004. The UCCJEA was promulgated to refine and improve upon the UCCJA and it retains the central purposes of the prior act. Griffith v. Tressel, 394 N.J. Super. 128, 138 (App. Div. 2007).

Because the UCCJA was in effect at the time of the initial custody determination, it controls whether this State had jurisdiction. N.J.S.A. 2A:34-94.

The UCCJA stated that the Superior Court of New Jersey had jurisdiction to make an initial custody determination if New Jersey was the child’s “home state” at the time of the commencement of the proceeding. N.J.S.A. 2A:24-31. The statute defined “home state” as “the state in which the child immediately preceding the time involved lived with his parents . . . for a least 6 consecutive months . . . .” N.J.S.A. 2A:34-30.

A motion requesting physical custody of the children after the UCCJA was repealed is governed by the UCCJEA, N.J.S.A. 2A:34-94.

If New Jersey was the children’s home state at the time of the initial custody determination, the court must consider whether, during the time between the initial order and the filing of the motion for modification, circumstances have changed so as to divest this State of that jurisdiction. Griffith v. Tressel, 394 N.J. Super. 128, 140 (App. Div. 2007).

The UCCJEA states that once the “home state” has made a child custody determination consistent with N.J.S.A. 2A:34-65, which determines initial child custody jurisdiction based on similar criteria found in the UCCJA, ^[1] it retains “exclusive, continuing jurisdiction” over the determination until:

(1) a court of this State determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this State and that substantial evidence is no longer available in this State concerning the child’s care, protection, training, and personal relationships; or
(2) a court of this State or a court of another state determines that neither the child, nor a parent, nor any person acting as a parent presently resides in this State.

[N.J.S.A. 2A:34-66a.]

In Sensient Colors v. Allstate Ins. Co., 193 N.J. 373, 386 (2008), our Supreme Court stated that “New Jersey has long adhered to the ‘general rule that the court which first acquires jurisdiction has precedence in the absence of special equities.’” (quoting Yancoskie v. Del. River Port Auth., 78 N.J. 321, 324 (1978)).

NOTE: My legal services include divorce, child support, child custody and visitation, alimony, equitable distribution, and marital agreements.

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1. The UCCJEA requires that the state acquiring jurisdiction must have been the child’s “home state” within six months of commencement of the action. N.J.S.A. 2A:34-65. “Home state” is defined as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.” N.J.S.A. 2A:34-54.

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A single act of assault can constitute domestic violence. See Cesare v. Cesare, 154 N.J. 394, 402 (1998).

There is jurisdiction for issuance of an FRO based on conduct outside the state at least if the victim “flees” to New Jersey or lives here. J.N. v. D.S., 300 N.J. Super. 647, 652 (Ch. Div. 1996). See also State v. Reyes, 172 N.J. 154, 167-68 (2002).

See my Blog Post: Domestic Violence — where to file the Complaint?

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

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