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Personal jurisdiction is one of those concepts that causes people’s eyes to glaze over—even lawyers’. It brings back memories of our Civil Procedure class in law school, having to analyze decades-old U.S. Supreme Court cases that discuss what minimum contacts are required to haul an out-of-state respondent into court in a different state.

Personal jurisdiction is also a linchpin of our justice system because it prevents a person from having the expense and hassle of being sued in a place they might never have been. In simple family law terms, just because your spouse may have moved to Uzbekistan 3 years ago, if you have never lived there, would you think it fair that he could file for divorce and make you fight a case halfway across the world? Well, the same principle applies when a spouse moves within the US to a state where the other spouse has not lived.

Jurisdiction is important enough that we have several jurisdiction articles in the Colorado Family Law Guide dedicated to the jurisdictional requirements for divorce, child custody, and family support. For military members, federal law imposes additional jurisdictional requirements before a state can divide a military retirement.

What is Personal Jurisdiction?

Put simply, personal jurisdiction means that the court has the authority to issue binding orders over a specific respondent or defendant.

Colorado law requires that one spouse was resident of the state for at least 91 days before a court has jurisdiction to grant a dissolution of marriage. C.R.S. 14-10-106(1)(a)(I). This is what is known as subject matter jurisdiction. But having the jurisdiction to grant a divorce is only the starting point – without personal jurisdiction over the respondent spouse, the court’s authority is limited to what is known as a “status divorce” – it can divorce the couple, maybe issue child custody orders (if the court has UCCJEA jurisdiction), but cannot issue any financial orders against the respondent spouse.

How to Obtain Personal Jurisdiction Over Out-of-State Spouse

There are several ways in which a court can exercise personal jurisdiction over a respondent spouse who lives out of state. The primary ones include:

  • Domicile in Colorado—the respondent spouse lives in Colorado or lives out-of-state but maintains Colorado as his state of legal residence (e.g. if in the military).
  • Service of Process Within Colorado—If a summons for dissolution of marriage is served on an out-of-state spouse while she is visiting Colorado, then courts here have personal jurisdiction over her.
  • Consent to Jurisdiction—this could be explicit (e.g. the out-of-state spouse files for divorce in Colorado or signs a consent), or implicit (participating in the case without objecting to jurisdiction).
  • Minimum Contacts—The out-of-state spouse either used to live in Colorado and the other spouse still lives here (see Colorado’s “long-arm” statute at C.R.S. 13-1-124, or that spouse still has sufficient “minimum contacts” with the state to justify exercising jurisdiction.

Minimum Contacts for Jurisdiction over Out-of-State Spouse

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The last factor, “minimum contacts,” is the most nebulous, and has resulted in an expansive view of personal jurisdiction.

Traditionally, Colorado trial courts looked at the “totality of the circumstances” and have been fairly lenient in finding grounds for personal jurisdiction over an out-of-state respondent, particularly if they ever lived or still own property here. Combine together several weak grounds, none of which are sufficient for personal jurisdiction on their own, and miraculously, there ends up being sufficient contacts to exercise personal jurisdiction.

I had a case several years ago in which the court found personal jurisdiction over an out-of-state military husband based on three facts:

  • He had been stationed in Colorado with his wife about ten years previously.
  • The wife moved to Colorado with the husband’s “consent”, and
  • The wife was storing some of the husband’s household goods in a house she purchased in her own name.

Colorado Supreme Court Addresses Minimum Contacts in a Divorce

Last month, the Colorado Supreme Court issued an important decision in a case of first impression – if an out-of-state respondent spouse has minimum contacts with this state, can the court exercise personal jurisdiction over him for all purposes including in a dissolution of marriage?

The Court’s answer to that jurisdictional question in the Green case upended decades of what every family law attorney thought we knew about jurisdictional practice in Colorado—the “minimum contacts” analysis only applies to companies, and in a family law setting, personal jurisdiction requires domicile!

Trial Court – Sufficient Minimum Contacts for Personal Jurisdiction Over Spouse

In Green, the couple was married in Connecticut in 1982 and lived in Nebraska for most of their marriage. In 2018, the wife moved to Colorado to help their daughter during her pregnancy. Four years later, the husband filed for divorce in Nebraska, and the wife filed in Colorado.

The husband challenged Colorado’s exercise of personal jurisdiction over him. Despite the fact that he had never lived in Colorado, the trial court found personal jurisdiction over the out-of-state spouse based on these facts:

  • The couple owned three houses in Colorado—a house for themselves (“House A”) purchased when the wife was staying in Colorado, a house for their pregnant daughter in Colorado (“House B”), and an investment home purchased several years previously.
  • From Nebraska, the husband financially supported the wife while she was in Colorado.
  • On a 2021 loan application, the husband stated that Nebraska was his former residence, and “House A” in Colorado was both his primary residence and his place of business (he was self-employed). The application was false, as the husband continued to live in Nebraska.
  • The husband visited Colorado several times between 2018 and 2022, initially staying at the couple’s “House A”, and then later at his daughter’s house.

By pre-Green jurisdictional standards, this is a fairly powerful set of facts to justify exercising personal jurisdiction over the husband. The trial court found just that, relying heavily upon the husband’s loan application, in which he (falsely) swore that he lived and worked in Colorado.

The husband appealed, and the Colorado Supreme Court took the extraordinary step of exercising original jurisdiction pursuant to Colo. R. App. P. 21, without the case first going through the court of appeals because:

“this case presents an important question regarding where personal jurisdiction applies when divorcing parties are domiciled in different states. No relevant Colorado or Supreme Court case directly addresses this particular issue. As such, we find it necessary to provide guidance.”

Green, ¶ 10.

Supreme Court – Personal Jurisdiction Requires Domicile

Bringing back memories of Civ Pro, the Colorado Supreme Court reviewed International Shoe and other jurisdiction rulings from the U.S. Supreme Court and prior Colorado rulings, but found their “minimum contacts” holdings applicable to corporations. But for individuals, domicile is required to exercise general personal jurisdiction in a divorce, not just minimum contacts:

“we hold that for a court to exercise general personal jurisdiction over an individual, the individual must be domiciled within the state. We decline to apply the Magill framework for corporations to individuals, preferring to keep them on separate jurisdictional playing fields. At its core, general personal jurisdiction is predicated on a direct relationship between the defendant and the forum. And at a basic level, domicile creates a symbiotic relationship between citizens and states, wherein citizens are afforded benefits and protections in exchange for a state’s exercise of judicial and regulatory authority. Domicile is thus a unique affiliation with a forum that inherently creates a fundamental basis for jurisdiction. And because domicile is both direct and easily ascertainable, using it as a jurisdictional touchstone provides clarity for litigants, empowers courts to compel appearances and enforce judgments, and strengthens the reciprocal relationship between citizens and states. Consequently, for a Colorado court to exert general personal jurisdiction over an individual, the individual must be domiciled here, full stop.”

Green, ¶ 19 (Cleaned Up).

(As an aside, I’m an Anglophile who spent my high school and college years in the U.K., so appreciate the court using “Full Stop” instead of “period” to emphasize its point).

There you have it – fairness dictates that only the state an individual has chosen as his domicile, with the rights, protections, and obligations accompanying it, can exercise general personal jurisdiction over a non-resident.

Note the use of the term “general” jurisdiction – this means being hauled into court for any reason. If an out-of-state resident were in a car crash while driving in Colorado, this state would have specific jurisdiction to hold him liable for damages arising from the crash, but not jurisdiction for other purposes.

What is Domicile?

Simply put, domicile means “the place where one actually resides and intends to remain permanently or for an indefinite amount of time.” Green, ¶ 20. That may sound simple, but the undersigned has litigated numerous cases concerning whether someone who is temporarily in Colorado is actually a domiciliary of this state, particularly for military members.

The Takeaway – Harder to Establish Personal Jurisdiction over Non-Resident Spouse

Note that the Green case only rejected “minimum contacts” as the sole basis to exercise general personal jurisdiction over a non-resident spouse. The other grounds for jurisdiction over an out-of-state spouse, including consent and service of process within Colorado, will still give the courts jurisdiction over that spouse.

Courts still have statutory bases for specific jurisdiction over parenting or support matters; domicile is only required for general jurisdiction in a full-blown divorce.

Establishing personal jurisdiction over a non-resident spouse who is not served in Colorado and does not consent to jurisdiction has become much harder, if not impossible. No longer will lawyers argue about whether owning a house or supporting a family member in Colorado are sufficient ties to commence a dissolution of marriage case.

How can a two-state couple get a dissolution of marriage? The spouse who initiates the divorce has to file in the other spouse’s state of domicile—the so-called “play away” jurisdiction rule, which has long applied to modifications of child support under UIFSA when everyone has left the state that originally issued the support order.

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