The foolishness of agreeing to family court jurisdiction when issues are contested or subject to enforcement

Posted Thursday, June 17th, 2010 by Gregory Forman
Filed under Attorney's Fees, Child Custody, Child Support, Contempt/Enforcement of Orders, Jurisdiction, Litigation Strategy, Not South Carolina Specific, Of Interest to Family Law Attorneys

In the first year of law school everyone takes Civil Procedure, where we learn about in rem jurisdiction, quasi in rem jurisdiction and in personam [personal] jurisdiction.  One percent of us understand the concepts clearly and other ninety-nine percent (including me) promptly misremember or forget most of what we learned–and then, possibly, relearn these lessons once we start practicing law.

In family court two areas are in rem jurisdiction: divorce [S.C. Code Ann. § 20-3-30] and child custody [S.C. Code Ann. § 63-15-330].  Everything else–child support, alimony, property division, attorney’s fees–requires personal jurisdiction over the defendant.  Attorneys often believe that if there is in rem jurisdiction for child custody, there is personal jurisdiction for child support.  This is clearly wrong: Kulko v. Superior Court of California, 436 U.S. 84, 91 (1978) (even though jurisdiction for child custody in California, no jurisdiction over non-resident father for child support).

In the past week one colleague and one litigant have bemoaned to me their frustration with having agreed to jurisdiction over all issues in South Carolina simply because South Carolina had in rem jurisdiction for child custody.  Though they thought they were being reasonable in accepting jurisdiction over all issues, their accommodation has come back to prejudice them (or their client).

In one case the father took (what his attorney contends) was a reasonable position at the temporary hearing and was still hit with a substantial attorney fee award.  Had father not acceded to jurisdiction, attorney’s fees would have been off-the-table.  In the other case the father provided me rules to show cause filed by his ex-wife that appear to have been drafted by a first year law student on a bender.  To the extent the rules seek enforcement of some order, I cannot determine which provisions of which order the father allegedly violated.  Large sections of the rules seek modification of prior orders based on father’s alleged fraud.  While this may or may not be an appropriate claim, it isn’t relief that is properly sought in a rule to show cause.  I cannot believe an attorney drafted these rules, and further cannot believe a judge authorized them.  However, since father lives in Denver, his ex-wife can drag his behind to South Carolina any time she feels like it–simply because he agreed to jurisdiction over everything when mother brought the child here and sought custody.

If a family court matter isn’t going to be contested and no enforcement issues could be anticipated (e.g., waiver of alimony or a property division which is completely accomplished by the time the court approves the agreement) it is fine to accept personal jurisdiction when it might not otherwise exist.  Otherwise, given the consequences of being forced to defend claims or enforcement proceedings on the other party’s home turf, agreeing to jurisdiction in an effort to be “agreeable” is completely misguided.

4 thoughts on The foolishness of agreeing to family court jurisdiction when issues are contested or subject to enforcement

  1. JMP says:

    Great post. I’m studying right now for the S.C. bar and this helped clear up an issue I had with family court’s in rem jurisdiction. Thanks.

  2. Lol. I too had a question about in rem jurisdiction in SC as I am studying for the July 2013 bar and this same blog helped clarify the issue. Great post as are all the others I have read in my bar prep. Thank you

  3. Lorden Masta El says:

    Just stating jurisdiction is NOT enough. Jurisdiction whether rem, personum, or subject matter must be proven via writ of discovery “adverment or jurisdiction “.

  4. Greg G says:

    Would the Family Law Court still maintain jurisdiction over a case if an annulment was granted, but the community property remained undivided among the parties?

    Great read btw!

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