Exercise of Jurisdiction Over an Out-of-State Resident in a Colorado Divorce

By Michelle L. Searcy

Colorado’s Uniform Dissolution of Marriage Act sets forth the laws applicable to divorces in Colorado. While most divorce cases involve parties who live in the same state, often times one of the parties has either moved to or moved from the state prior to a party filing a Petition for Dissolution of Marriage. This article addresses the jurisdictional limits and requisites in such cases.

Jurisdiction involves fairly complex legal questions that may be summarized by asking whether the court has the authority to enter orders concerning the subject in controversy and whether the court has authority over the person.

For the court to enter a Decree of Dissolution of Marriage or Legal Separation, Colorado’s Uniform Dissolution of Marriage Act requires: (1) at least one party permanently lived in Colorado for at least 91 days prior to filing, (2) a finding the marriage is irretrievably broken, and (3) at least 91 days has passed since the Court obtained jurisdiction over the respondent. This statute provides that such jurisdiction may be had as a result of service of process pursuant to C.R.C.P. Rule 4, the other party joining as a co-petitioner, or by that party entering an appearance in any other manner.

Colorado Rule of Civil Procedure 4 requires delivering a copy of the Petition, Summons and Case Information Sheet to the person or by leaving a copy at the person’s usual home with a family member over 18 years of age or at the person’s usual workplace. Thus, if a party to a marriage living outside Colorado is properly served with the aforementioned documents, the court may assert jurisdiction over the issues arising out of the divorce.

However, it is not clear whether the court has properly asserted jurisdiction over the person. Colorado has enacted a long-arm statute, meaning that Colorado has defined the extent of its exercise of jurisdiction to the maximum allowed by due process under the United States Constitution. The Colorado long-arm statute defines acts by any person, regardless of whether that person lives in Colorado that allow Colorado to assert jurisdiction over the person. Thus, transacting business in the state, causing an injury in the state, owning, using or possessing real property in the state, insurance contracts protecting people or property within the state, engaging in sexual intercourse resulting in a child, or entering into certain agreements within the state are sufficient to establish jurisdiction. The long-arm statute also, however, includes “The maintenance of a matrimonial domicile within this state with respect to all issues relating to obligations for support to children and spouse in any action…if one of the parties of the marriage continues without interruption to be domiciled in the state.”

While domicile has been defined as akin to permanent residence, the definition of matrimonial domicile is unclear. Is one party residing in Colorado sufficient to establish jurisdiction over the other party to the marriage even if he or she never resided in Colorado? Most of the case law on this subject addresses dividing military pensions because the Supremacy Clause of the United States Constitution provides that direct federal laws on a given subject matter pre-empt state laws. The Federal government has narrowed the ability of the Court’s to exercise jurisdiction over the pensions of former military members. In a 1997 Colorado Court of Appeals case, the court sent the case back to the lower court to consider whether the Respondent was domiciled in Colorado when the case was filed. However, the Federal statute governing military pensions requires the pensioner to be domiciled in the state for the state to have authority to divide the pension.

Most other case law indicates that only one person must reside in Colorado for the court to assert jurisdiction over the other party given that service was proper. If your child resides in Colorado, it will be easy to establish jurisdiction in Colorado. There are also methods to bring orders from other states into Colorado for enforcement and/or modification.

While it is clear that Colorado may dissolve a marriage (grant a divorce) based upon the residence of one party, even if the other party lives out of state, it is not clear whether the court has jurisdiction to divide property, particularly where the parties do not own Colorado real estate. The court must treat each aspect of a dissolution case – decree, support, property, parenting issues – under different standards. Jurisdiction to enter a Decree does not equate to jurisdiction to divide property. The statute quoted above directly addresses the “issues relating to obligations for support to children and spouse” which is different from property division. The cases that address jurisdiction over property division address division of military pension, which is different from other property. The jurisdictional limits of traditional property division when the Respondent resides out-of-state have not been directly decided. Perhaps, a case addressing this issue will clarify it. Until then, the safe bet is to assume the court has good jurisdiction if one party resides in Colorado.