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What If Each Spouse Files a Divorce Action in Different States?

by Steve Fritsch on January 28, 2013

California sunsetWith many military families in the area and because San Diego has many families that come and go, it is not uncommon for a spouse residing in San Diego and their spouse in another state to both initiate divorce proceedings.  Or the parties may both reside in California and then one or both parties move out of California and one may try to invoke the new state’s jurisdiction.  In these types of situations the question posed is which divorce proceeding wins?  California or the other state?

The answer is as straightforward as it comes.  When divorce proceedings are pending in different states between the same husband and wife, the winning state is the state first to acquire jurisdiction by service of process on the other spouse.  Marriage of Hanley (1988) 199 CA3d 1109, 1115-1116.  This is called first-in-time jurisdiction.   It does not matter who filed first but rather who gets served first.  Therefore, it is a race to see who can serve first.  If you are the spouse that won service race you must file a motion to quash the other proceeding.  The same is true if husband and wife have two divorce proceedings pending in different counties in California.  The first spouse to serve the other spouse wins. Abatement of the action in the court where service was second is mandatory.  see Mungia v. Super. Ct (1964) 225 CA2nd 280, 283.

In sum, if there are divorce proceedings pending in different states or different counties in California, the race is not to see who files first but rather who can serve the other spouse first.  As such, if your spouse is in a different state or county and you believe he or she may file, it is best to be proactive and file and serve the other spouse as quickly as possible.  Winning the service race can be crucial because having to litigate outside your county can be stressful, inconvenient and costly.

DISCLAIMER:  The foregoing article is for informational and educational use only.  It is not intended to be legal advice in any way.  If legal advice is needed you should seek a consultation with an attorney.

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