MEMORANDUM OF LAW

Facts:

                The Husband is a resident of New Jersey and the wife has been a resident of Florida since 2012.  The parties lived in New Jersey as a married couple. The Husband believes the wife filed a petition for dissolution in Florida, but he has never been served.  The Husband filed a petition for dissolution in New Jersey and served the wife in Florida.  The Husband now believes Florida would be a more beneficial jurisdiction for him due to more favorable property distribution laws.    

Issue 1: Where is jurisdiction proper?

                Per Florida Statute 61.021, a party must have resided in Florida for more than six months before filing of a petition for dissolution.  Residence consists of actual presence and intent to remain in the state.  Bloomfield v. St. Petersberg Beach, 82 So. 2d 364, 369 (Fla. 1955).  The petitioner has the burden of proving a party meets the residency requirement.  Held v. Held, 151 Fla. 583 (Fla. 1942).  Residence can be corroborated by a valid Florida driver’s license, a Florida voter registration card, or a valid Florida identification card.  Fla. Stat. 61.052(2).

                In order for the court to determine property rights of the parties, it must have personal jurisdiction over both parties.  Residency where the action is pending establishes personal jurisdiction. Personal jurisdiction is established  if a party over whom the court would not otherwise have personal jurisdiction makes a general appearance before the court through pleadings or presence at a hearing.  Gelkop v. Gelkop, 384 So. 2d 195, 201-202 (Fla. 3^rd DCA 1980).  This is a trial by consent.  Id.  

Subject matter jurisdiction over real property only exists in the county where the property is located.  Lallouz v. Lallouz, 695 So. 2d 466, 467 (Fla. 3^rd DCA 1997).  Thus a court does not have subject matter jurisdiction over property located in another county.  However, personal jurisdiction over the parties gives  the court authority to determine the equitable rights of the parties.  Id. at 468.  The court has the power to compel a party to perform a contract or execute a trust without regard to how it could effect land in another jurisdiction.  Id.  In Brake v. Swan , Mr. Brake submitted himself to the jurisdiction of the court, and the court was held to have authority to order sale of his share of property in another jurisdiction.  733 So. 2d 1051, 1053 (Fla. 3^rd DCA 1999).  

If a defendant or respondent files any pleadings to the merits of the case, the defendant waives all challenges to service of process.  Bailey, Hunt, Jones and Busto v. Scutien, 759 So. 2d 706, 708 (Fla. 3d DCA 2000) This is true only if the defendant also fails to raise a timely objection  to lack of service.  Berne v. Benzos 819 So. 2d 235, 238 (Fla. 3^rd DCA 2002).  An objection regarding lack of personal jurisdiction because of failure to achieve valid service  is timely if raised before any affirmative relief is requested or concurrent with a request for that relief.  Alvarado v. Cisneros, 919 So. 2d 585, 587-88 (Fla. 3^rd DCA 2006).  Thus service is deemed waived if affirmative relief was requested in answer filed by opposing counsel.

New Jersey statute requires that one of the parties have been a resident of the state for one year before there is subject matter jurisdiction over divorce proceedings if the ground for divorce is not adultery.  New Jersey Stat. 2A-34-10.  If the ground for divorce is adultery, there is no one year residency requirement.  Id. 

Conclusion:

Florida has jurisdiction over the wife due to her residence.  Florida would have jurisdiction over the husband if he files pleadings and appears before the Florida court.  Once jurisdiction over the husband is established in Florida, the court has the authority to divide the parties’ property.  If the wife has already filed a petition for dissolution here in Florida, the Husband can file responsive pleadings seeking affirmative relief.  Such pleadings would waive service and establish personal jurisdiction.  If the wife has not filed a petition for dissolution, the husband can file a petition in Florida due to the wife’s residency.  Under those circumstances, the Husband would have the burden of proving the wife’s six month residency to establish jurisdiction.  As long as the Husband remains a resident of New Jersey, the New Jersey courts will continue to have subject matter jurisdiction over the divorce per their state statute.  If the wife has already filed in Florida, there is really nothing to stop her from voluntarily withdrawing her petition and filing in New Jersey.  However, if we file in Florida first, it would be hard to have the action dismissed on jurisdictional grounds because jurisdiction is proper in both states.