Posted by Nydia Streets of Streets Law in Florida Divorce
When one spouse in a Florida divorce lives outside of Florida, personal jurisdiction issues may arise. The spouse seeking a divorce in Florida may have issues getting relief from a Florida divorce court on any issue that requires personal jurisdiction (such as financial relief) if the other spouse has never lived in Florida or otherwise is not subject to jurisdiction in Florida. This was an issue in the case Fradera v. Fradera, 5D22-53 (Fla. 5th DCA November 4, 2022).
The former wife filed a petition for divorce and it was served upon the former husband in New Jersey. The former husband responded by filing a motion to quash, asserting that he was a New York resident and that Florida had no jurisdiction over him. The former wife filed an amended petition seeking partition of property jointly owned by the parties in Florida. Thereafter, the parties entered a stipulation stating the former husband was not subject to personal jurisdiction in Florida and the former wife would not seek relief that required personal jurisdiction over the former husband.
The former husband, in response to the former wife’s request for partition filed a motion seeking to appoint a special magistrate to partition the property. The former wife then filed a motion seeking to establish personal jurisdiction over the former husband, arguing that since the former husband filed a motion seeking affirmative relief, he waived his personal jurisdiction challenge and was now subject to Florida’s jurisdiction. The trial court held a hearing and agreed with the former wife. The former husband appealed.
The appellate court agreed with the former husband and reversed. It held “Because [the husband’s] motion is wholly reliant on [the wife’s] petition for partition and could not be maintained without it, we agree with [the husband] that the trial court incorrectly characterized his motion to appoint magistrate as one seeking affirmative relief materially beneficial to him. [the husband] simply sought to initiate the next procedural step for the trial court in the partition action pursuant to section 64.061(4), which states that once the parties have agreed that dividing the property at issue would cause prejudice to one or both of the parties (as [the spouses] did in both the partition petition and the motion to appoint magistrate), the trial court may, “on motion of any party and notice to the others[,] . . . appoint a special magistrate or the clerk to make sale of the property either at private sale or as provided by s. 64.071.” § 64.061(4), Fla. Stat. (2022). Following the statutory procedural steps to protect an interest in the property, as [the husband] did, does not amount to seeking affirmative relief; rather, it is the simple exercise of a party’s due process right to be heard before the property rights at issue are decided. Doersam v. Brescher, 468 So. 2d 427, 428 (Fla. 4th DCA 1985). As such, [the husband’s] request did not waive personal jurisdiction by seeking affirmative relief or material benefit, but rather the request was to move the in rem proceedings forward and finalize the partition pursuant to section 64.061(4).”
Schedule your appointment with a Miami family law attorney to understand the next steps in your case.