Jurisdiction

Trevino Law, Inc.

A Family Law Firm Located in South Orange County

For a family law lawyer call: 949.716.2102

If you have a crises in your life, chances are, you need a divorce attorney . Whether it is child support , child custody , property division , or spousal support , Trevino Law can help you through. Trevino Law is dedicated to helping individuals through the legal process. If you are facing a family law issue, it is important to contact an attorney even before the petition is filed.

JURISDICTION:

The power given to a court to make orders over matters.

A court must have subject matter jurisdiction, personal jurisidiction over the parties, and in res jurisdiction.

Subject Matter Jurisdiction:

A court may only act if the legistlature has given it authority to make decisions in a particular area of law. In family court, the legislature has given Superior Court's the ability to make decisions on dissolution cases. California Family Code Section 200 .

Personal Jurisdiction:

A court can only make orders affecting an individual if the person lives in the state, has minimum contacts with the state of California, or is subject to one of California's long arm statutes.

In Res Jurisdiction:

A court must have authority over the subject matter of the case. In a divorce, that would mean that the court has jurisdiction over the marriage.

PERSONAL JURISDICTION

Personal Jurisdiction in California

Personal jurisdiction is sometimes referred to as in pesonam jurisdiction. Basically it means that a court only has an ability to make enforceable orders affecting people who would forsee being sued in the state.

A person who lives in California can easily forsee being sued in California. California has jurisdiction over any individual that is domiciled or lives in the state of California.

In order to exercise personal jurisdiction over a non domiciled individual, when the state of California exercieses jurisdiction over the non-resident, it must not offend "traditional notions of fair play and substantial justice."

If a person does not live in California, then that person can only be sued if the individual has minimum contacts with the state of California or one of California's long arm statutes allow California to exercise jurisdiction over that individual.

Minimum contacts with the forum state must be substantial, continuous, and systematic. Minimum contacts are analyzed on a case by case basis meaning that the family court will look at each case to determine if the facts are sufficient enough for the court to exercise jurisdiction.

In family law cases, the court will look to what action was taken by the individual so that he or she could foresee being subject to the court's jurisdiction over that person in a divorce. If an individual has never lived in the state of California, has little or no contact with the state, and does not come to the state of California, he or she will not be subject to any California orders.

In order to satisfy the minimum contacts with the State of California, it must be shown that the individual pusposefully availed himself or herself to California and the nexus of the relationship so that it is reasonable and fair to require someone to appear and defend himself or herself in an action.

SUBJECT MATTER JURISDICTION

Subject Matter Jurisdiction in California

A court may only make orders if it has been given authority to make orders in that particular type of case. For instance, a bankruptcy court cannot order a dissolution of marriage, a family court does not probate an estate, and a small claims court cannot adjudicate a personal injury case.

The legislature gives different courts the ability to act in different situations so that the court has the authority to make orders in that particular area of law. Without that authority the court lacks the subject matter jurisdiction to make an order.

Subject matter jurisdiction for family law proceedings is with the superior court through Family Code Section 200 and includes most of the issues that a divorcing couple would face in a family law situation such as support, custody, and property divison.

The parties to a divorce proceeding cannot agree to limit or expand the court's authority. In other words, they cannot by agreement divest the court with the authority to grant a dissolution. In addition, they cannot agree that another type of court will hear their divorce case.

IN RES JURISDICTION

In Rem Jurisdiction in California

In rem jurisdiction is the authority a Calfiornia court has over a particular item which is the subject of the lawsuit. A family law case is an in rem prceeding, because the res or the thing is the marriage.

In rem jurisdiction can be waived by the parties. The parties can agree in writing to waive in rem jurisdiction allowing a court to make a ruling over property.

As long as at least one party lives in California and there is a valid marriage, the state has in rem jurisidiction over the marriage and can make orders affecting the marriage status of the parties.

In rem jurisdiction only allows the family court to make orders affecting the marital status. In order to make orders that affect support and other divorce issues, the court must have personal jurisdiction over both parties.

Subject Matter Jurisdiction: A court may only act if the legistlature has given it authority to make decisions in a particular area of law. In family court, the legislature has given Superior Court's the ability to make decisions on dissolution cases. California Family Code Section 200 .