Spouses in Two States: Which One Should Hear Their Divorce Case? In re Marriage of Malcolm

We live in a highly mobile society. That means it’s no longer out of the ordinary for spouses who are married in one state to be living in another when they later separate and divorce. Nor is it unlikely for spouses to be living in two separate states when one or both files for divorce.

usamap-jpg-1417432-m.jpgForum non conveniens is a discretionary power that allows courts to dismiss a case where another court, or forum, is substantially better suited to hear the case. In In re Marriage of Malcolm, the state’s Sixth District Court of Appeals explains how the legal doctrine applies in California divorce cases in which the spouses are located in different states.

Mr. and Ms. Malcolm married in Carmel, California in 1999. They later had three children, with whom they primarily resided in Aspen, Colorado. They paid state income taxes in Colorado, held driver’s licenses issued by the state and were also registered to vote there. They also kept ties in California, however. The Malcolms founded a company in Sunnyvale, where Mr. Malcolm worked five days a week. Ms. Malcolm served as the company’s general counsel, but worked primarily from Aspen. The family also owned two homes in California, in Los Altos and Carmel. Mr. Malcolm, a licensed pilot, maintained a hangar and apartment at the Monterey Airport, where the couple kept their four planes.

Mr. Malcom moved out of the family home in 2011 or 2012 after the couple separated. He was living in Los Altos when he filed for dissolution of the marriage in the local superior court. Ms. Malcom filed a competing divorce petition in Colorado four days later. The California court denied Ms. Malcolm’s motion to quash the proceedings in that venue, but agreed to stay the case on forum non conveniens grounds. She argued that requiring her to travel to California to litigate the divorce would be extremely inconvenient and disruptive to their children.

The Sixth District reversed the stay on appeal and remanded the case for further proceedings, finding that the lower court failed to properly consider all of the requisite forum non conveniens factors.

The Court explained that those factors were laid out by the California Supreme Court’s 1991 decision in Stangvik v. Shiley Inc. First, a California court must determine whether the potential forum in another state is a “suitable” place. If so, the Court must next consider the parties’ private interests, including the ease of access of evidence, the cost of getting witnesses to attend the proceedings and the availability of a process to compel unwilling witnesses to attend the proceedings. Finally, the court must also consider the public interest of keeping the proceedings in California as well as the interest in avoiding overburdening courts.

In this case, the Appeals Court said the lower court failed to consider the following additional factors related to the private and public interests: Mr. Malcolm’s choice of forum, the fact that the California action was filed first and the “likelihood that marital status would be determined more quickly in California.” As a result, the Court remanded the case back to the trial court with instructions to consider these specific factors to determine whether the doctrine of forum non conveniens should be applied.

Choosing the right court is just one of the many complicated issues that can arise in divorce and custody matters, particularly when the parties live in different states. With offices throughout the region, Bay Area divorce lawyer Lorna Jaynes has years of experience handling these issues and focuses on providing innovative legal tools to resolve family law disputes.

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