NJSBA Family Law Section

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  • 1.  Jurisdiction Issue

    Posted 10-10-2013 04:50 PM

    I was contacted by a U.S. Marine who is currently stationed at Quantico but has always maintained his residence in New Jersey and files his taxes in New Jersey.  He is married to a former Marine who also lives in Virginia, but she has never lived in New Jersey.  The children are all emancipated.

    My potential client filed for separation in Virginia in March 2012.  He then filed for divorce in Virginia in March 2013.  Last week, they had a Court appearance in which the Judge advised them to settle the matter and set it for a divorce date in November 2014!  The Wife has no interest in settling and is set on dragging the matter out until November 2014 because she apparently believes that he will decide to reconcile during that time.  Meanwhile, unbeknownst to the Wife, my potential client is engaged and has set a wedding date which will need to be cancelled if he is not divorced by the spring.

    My question, unfortunately, has many components:

    First, I am of the belief that the potential client can dismiss his Virginia Complaint and re-file in New Jersey as he is a resident of New Jersey.  However, I do not see any basis upon which to obtain jurisdiction over the Wife, absent consent, which I do not believe she would give without first reaching a settlement in which case they can simply get a divorce in Virginia prior to the scheduled date.

    Second, assuming there is no jurisdiction, my reading of the jurisdiction statute gives me the impression that I can get New Jersey to enter a Judgment of Divorce, without jurisdiction over the Wife as the statute reads that divorce can be based on "either" party being a resident/domiciled in New Jersey.  However, would I be able to get a divorce without having the financial issues resolved?  If I can do so, I believe he can then take the divorce judgment back to Virginia to finalize the financial terms of the settlement.

    Finally, one concern my potential client has is that his Virginia counsel is simply incompetent, as he has sent the client to negotiate a settlement with his Wife.  His thought is that different counsel can expedite the settlement process; however, I am concerned that without the matter being instituted in New Jersey I would be practicing outside of my jurisdiction if I attempt to engage in settlement discussions with the Wife's JAG attorney.  Would everyone agree that it would be improper and foolish for me to attempt to negotiate on his behalf considering the pending divorce action is in Virginia where I am not licensed?

    Any thoughts on this subject would be appreciated, as I am sure many of you have had experience with military personnel which created interesting jurisdictional issues.

    Thanks.
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    David Cardamone Esq.
    Little Silver NJ
    (732)741-6769

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  • 2.  RE:Jurisdiction Issue

    Posted 10-11-2013 05:47 PM

    You should not do any negotiating in VA nor should your client.  We don't want anything to help their claims that Virginia has jurisdiction.  

    I think you should file it in NJ; serve her in Va.  However, the jurisdictional language will probably have to have something that says he is a NJ resident now and/or at the time the cause of action arose despite being assigned to military bases.  

    I think there must be someone on this list who is former military and understands the more particular language you might need.  

    Once you get personal service; count the days then serve her with a asset hearing notice or whatever they call it now.  After she's served I'm thinking she has to come in or file something contesting jurisdiction.  If she just ignores it, I would think you can get a default judgment.

    Marianne


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    Marianne Auriemma Esq.
    Maywood NJ
    (201)712-9663

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