What if My Spouse and I have Property Out of State?
For couples who have moved around throughout their time together, or who have multiple properties throughout the country, it is a common concern to wonder what will happen with their property that is outside of the State of Florida during their Florida divorce. These concerns can be answered by your knowledgeable Orlando Divorce Attorney during your initial consultation. Discuss with them the property that is held out of the state and make specific notes regarding the ownership. This information will allow your Orlando Divorce Attorney to provide you with a comprehensive explanation of the specific jurisdiction of the court over your out of state property.
The first issue to determine is if the property is considered marital or non marital property under Florida law. Marital property consists of any items, land, homes, cars, clothing, any tangible or intangible item obtained during the marriage, whether done by a spouse alone or procured jointly. If the out of state property is considered marital, the Florida courts may exercise some unique power over the property.
The issues raised regarding jurisdiction over the out of state marital property of courts are founded upon the general basis of civil procedure. This requires the court in every case to have both subject matter jurisdiction and personal jurisdiction over the case and parties involved. To satisfy the subject matter jurisdiction element in the Florida court system, a spouse must have been a resident of the State of Florida for 6 months prior to the filing of the divorce action. This simple element provides the court with jurisdiction, or power, over the divorce proceeding. Personal jurisdiction can also be easily obtained in many divorce cases. Personal jurisdiction is automatically obtained over the spouse who filed the initial petition for divorce, as they subjected themselves to the power of the court. However, to obtain personal jurisdiction over the respective spouse, they must either be served within the State of Florida, or live within the State of Florida, have substantial non-isolated activity in Florida, or have minimum contacts within the state. Generally, within a divorce action, both parties live within the state and personal jurisdiction is not difficult to accomplish. After jurisdiction is obtained over the case and the parties, the court’s jurisdiction over marital property becomes very broad.
The type of jurisdiction the court may exercise is where the issue may arise. Although all items obtained during the course of a marriage is deemed to be marital property and subject to the equitable distribution aspect of the Florida dissolution process, and will be affected by the court’s order, how the property is affected may be indirectly. The authority of a court to exercise power over real property is known as in rem jurisdiction, and only applies to the property within the confines of the state where the court sits. Therefore, the Florida court would not be able to make a ruling specifically regarding the property out of state. However, the Florida court does have in personam jurisdiction over the parties who own the property that is out of state. This provides the court with the power to order the parties to divide or dissolve of the property in the manner the court deems fit under the equitable distribution standards of the Florida Statutes. Therefore, the court may effectuate an order that binds both parties, and requires them to abide by it even if effecting property outside of the court’s jurisdiction.
Whether you and your spouse maintained property together, outside of the State of Florida, or your spouse removed property in order to protect it, the Florida courts may exercise jurisdiction over the marital property in question. Therefore, make special note with your Orlando Divorce Attorney of the property that is out of state, as to ensure this property is specially addressed by the court and your rights to it are protected.
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