Two areas of family law do not require personal jurisdiction over the Defendant but only require in rem jurisdiction. Those areas are divorce [S.C. Code Ann. § 20-3-30] and child custody [S.C. Code Ann. § 63-15-330]. For these matters, a Plaintiff can file the action in South Carolina even if there is no personal jurisdiction over the Defendant. The Plaintiff, and, in child custody cases, the child, still need to meet jurisdictional requirements that are often based on residency to pursue divorce or custody cases here.
Everything else in family law–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. In Kulko v. Superior Court of California, 436 U.S. 84, 91 (1978), the United States Supreme Court held that even though California had jurisdiction to establish child custody it lacked jurisdiction over a non-resident father to establish child support.
There are few absolutes regarding personal jurisdiction. S.C. Code Ann. § 63-17-3010, sets for the bases for personal jurisdiction over a Defendant to establish or modify child support: (1) the individual is personally served with a summons and complaint within this state; (2) the individual submits to South Carolina jurisdiction by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction; (3) the individual resided with the child in South Carolina; (4) the individual resided in South Carolina and provided prenatal expenses or support for the child; (5) the child resides in South Carolina as a result of the acts or directives of the individual; (6) the individual engaged in sexual intercourse in South Carolina and the child may have been conceived by that act of intercourse; or (7) there is any other basis consistent with the constitutions of South Carolina and the United States for the exercise of personal jurisdiction
If South Carolina was the last marital domicile, there is clearly personal jurisdiction over property division and spousal support. Personal service within South Carolina is also sufficient to establish personal jurisdiction. In Burnham v. Superior Court of California, County of Marin, 495 U.S. 604 (1990), the United States Supreme Court held that in-state service was, by itself, sufficient to establish personal jurisdiction. However when South Carolina was not the last marital domicile it can be unclear whether South Carolina has personal jurisdiction over the Defendant for property division and spousal support. Such decisions on personal jurisdiction are dependant upon due process considerations and there is little South Carolina case law addressing these specific issues.
In all these matters there must also be subject matter jurisdiction to proceed with the case. Often there can be personal jurisdiction over the Defendant but South Carolina lacks subject matter jurisdiction. South Carolina never has subject matter jurisdiction to alter another state’s property division or alimony awards. If the child does not meet residency requirements, there may not be subject matter jurisdiction to establish child custody. If the Plaintiff remains in the issuing state, South Carolina might lack subject matter jurisdiction to modify child support or child custody. Further, if another state has acquired jurisdiction over the subject matter, South Carolina may lack subject matter jurisdiction to proceed. In Ware v. Ware, 404 S.C. 1, 743 S.E.2d 817 (2013), Alabama’s priority in obtaining jurisdiction over property division and spousal support rendered South Carolina’s decision on these issues invalid.
In today’s mobile society, the family lawyer has to be very careful about where to bring a proceeding and when to request a dismissal.