1. Jurisdiction – Who can sue for divorce in San Diego, CA?

Jurisdiction means the power of the court to grant an order or judgment in relation to a divorce, legal separation, or annulment. Jurisdiction is a very important first step because the person initiating the matter (or “petitioner”) would not want to waste the time and expense of starting a proceeding only to find out that the court did not have the power to hear the petitioner’s case. One of the parties must have resided in the state for six months and in San Diego County for three months before a court will have the power to make decisions in a divorce, legal separation, or annulment case (Cal. Fam. Code §§ 200, 2010, 3101, and 3103).

  1. The types of orders or judgments that the court has the power to make in divorce, legal separation, or annulment matters concern the following:

  2. The status of the marriage (i.e. dissolving or annulling the marriage);

  3. The custody of minor children;

  4. The support of children or either party;

  5. Distribution of real and personal property of the parties; and

  6. An award of attorney fees and costs.

For instance, Patty has always lived in Los Angeles and is married to Ralph. They have a minor child. On July 15, 2018, Patty moves to San Diego with their minor child. On October 16, 2018, Patty files for divorce and custody over the minor child in San Diego. San Diego County Superior Court has jurisdiction, or the power, to make orders regarding the divorce, distribution of property, the minor child, and support for Patty and the minor child because they have lived in the state their whole lives and in San Diego County for more than three months.

When the parties are not married, but have one or more minor children, jurisdiction is established in a paternity action if the respondent either resides in the State of California or had sexual intercourse in the State of California (Cal. Fam. Code § 7630). Either parent may file a paternity petition to determine who the biological father is in a particular case. A parent must do so within a reasonable time of learning about the allegation of paternity.

When more than one state is involved, the situation is a little more complicated. The Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”) provides the answers as to when California may take jurisdiction (Cal. Fam. Code §§ 3400-3465). If no other state has made a custody determination and the child has lived in California for at least six months, California has jurisdiction over a proceeding related to the child (whether it’s paternity, post-judgment modification, or other proceedings related to children). If the child has not lived in California for six months prior to initiating a court action, but is physically within the state, it is still possible for California to make orders regarding the child (Cal. Fam. Code § 3421). If there is a court order from another state regarding a child, it is also possible for California to take jurisdiction to modify the sister state’s custody order (Cal. Fam. Code § 3423). There are also provisions in the UCCJEA for emergency jurisdiction in cases of abuse or neglect (Cal. Fam. Code § 3424). UCCJEA issues can be complicated and having an attorney versed in the UCCJEA is important in today’s transient society.

If there are grounds for a domestic violence restraining order, there is no residency requirement to establish jurisdiction. California has enacted the Domestic Violence Prevention Act (“DVPA”) which allows immediate protective orders to be issued against certain family members, spouses and ex-spouses, cohabitants, co-parents, or someone with whom the petitioner has or had a dating relationship (Cal. Fam. Code § 6200 et seq.). It is a showing of abuse that triggers the DVPA provisions, and there is no requirement of residency. Actions under the DVPA do allow the responding party a hearing within 21 days to determine if the domestic abuse allegations are sufficient to issue a more permanent restraining order (up to five years and subject to renewal). DVPA restraining orders can have drastic consequences on immigration, possession of a firearm, employment, and other collateral matters. It is very important to have an attorney who understands not only the DVPA, but the lasting ramifications it can have on a party to such a proceeding.

Included in the concept of jurisdiction is that of the venue, which will be the San Diego County Superior Court if jurisdiction is proper under the general rules outlined above. In addition, within San Diego County, one must choose the proper court location for filing the initial petition. In San Diego County, there are four courts for the party asking for divorce, legal separation, annulment, paternity, or a domestic violence restraining order in which to file. Downtown, East County, North County, and South Bay are the four courthouses in which one may file a family law case or action. Which court is the proper local venue will depend upon the filing party’s residential zip code.