Brief facts:
– Man lives in CA, woman in NY (I understand cities may be relevant)
– Man files for divorce in CA
– Woman files answer
– Case Management Conference soon
Questions:
Once woman files answer, does that give CA courts jurisdiction? If so, can it be transferred to NY now?
Woman’s lawyer (in NY) is saying he can’t represent her during the telephone Conference because he can’t practice in CA. True?
I know it probably looks like I’m looking for a free lawyer. Basically, I’m concerned that the woman’s lawyer is jerking her around, so I’d just like the straight dope on options and outlook at this point. Is she being lied to, and did the lawyer f___ things up already?
Also, any recommendations on free, online legal resources for answering basic divorce questions (what happens? when? rights? etc.)
Last question first. The NY lawyer can’t practice in California unless he retains local counsel or gets the judge (and the local bar association?) to extend him the right in this case. I don’t know what a case management conference is (I am a lowly law student, and year two at that), but if she’s going to be represented in a court proceeding, that representative needs to be practicing in CA. Advice that is being proffered in NY by a NY attorney is perfectly fine, however.
Second question: man, jurisdiction is a PITA. Yes, I think that filing an answer without contesting jurisdiction waives the right to challenge jurisdiction. The CA court may or may not have had personal jurisdiction over the woman, but I don’t think they’ve got any authority to transfer the case to NY; they can only tell Man to file in NY.
Did the lawyer screw up? Hard to say. From the woman’s perspective, maybe there’s an advantage to the California courts, and the man’s lawyer screwed up by not sending the case to NY. Maybe the jurisdiction was unquestionable, and she had to answer in CA. It’s all very fact-dependent, and involves second-guessing the lawyer’s judgement as well as the law.
Not enough information. Were they residents of CA when they were together? How long has the wife resided outside of CA?
CA has a law that divorces obtained in other jurisdictions shall be of no force or effect if both parties resided in CA at the time the action was commenced, as well as a bunch of other qualifications.
A divorce obtained in another jurisdiction shall be of no
force or effect in this state if both parties to the marriage were
domiciled in this state at the time the proceeding for the divorce
was commenced.
Proof that a person hereafter obtaining a divorce from the
bonds of matrimony in another jurisdiction was (a) domiciled in this state within 12 months before the commencement of the proceeding therefor, and resumed residence in this state within 18 months after the date of the person’s departure therefrom, or (b) at all times after the person’s departure from this state and until the person’s return maintained a place of residence within this state, shall be prima facie evidence that the person was domiciled in this state when the divorce proceeding was commenced.
If the husband is the wealthier of the two - and I realize that is a stereotypical statement these days - I doubt he would choose to divorce in CA (if he had a choice) because it is a community property state. NY is a marital property state and the rules of property division tend to be less onerous.
So, if the couple was married in CA, resided in CA and the wife has been domiciled outside of CA (according to the criteria above) for less than a year, then the correct jurisdiction is CA.
If the couple was married outside of CA, then it would be more appropriate to divorce under the jurisdiction of the state that licensed the marriage, or at least make sure that any divorce obtained will be recognized by that state.