A previous article addressed the general jurisdiction and venue rules for divorce actions in Georgia. This sequel focuses on the provisions of our long-arm statute, which includes separate grounds for personal jurisdiction over nonresident defendants in domestic relations cases. Specifically, this article attempts to answer one question. If a nonresident defendant in a Georgia divorce action does not meet our statute’s domestic relations requirements, can the court nonetheless obtain jurisdiction under any other long-arm provisions?

The domestic relations subpart of Georgia’s long-arm statute grants personal jurisdiction over a nonresident defendant, “as to a cause of action arising from any of the acts, omissions, ownership, use, or possession enumerated in this Code section… if in person or through an agent, he or she … [w]ith respect to proceedings for divorce, separate maintenance, annulment, or other domestic relations action or with respect to an independent action for support of dependents, maintains a matrimonial domicile in this state at the time of the commencement of this action or if the defendant resided in this state preceding the commencement of the action, whether cohabiting during that time or not…”(1)

If a Georgia resident files for divorce against a nonresident spouse who does not maintain a matrimonial domicile in this state at the time of filing and did not reside here preceding the commencement of the action, a Georgia court cannot claim personal jurisdiction over the defendant under the domestic relations long-arm provision. The inapplicability of that provision, however, seemingly does not foreclose the court from examining other grounds for asserting personal jurisdiction over the defendant.(2) At the least, the court will evaluate whether “minimum contacts” needed to confer personal jurisdiction over a nonresident exist under the following three-part test(3):

1) the nonresident must have purposefully availed himself of the privilege of doing some act or consummating some transaction with or in the forum state; 2) the plaintiff must have a legal cause of action against the nonresident which arises out of, or results from, the activity or activities of the defendant within the forum; and 3) only if the requirements of both 1) and 2) are established, a minimum contact between the nonresident and the forum exists, such that the assumption of jurisdiction comports with due process notions of fair play and substantial justice.

The three-part test essentially looks to ensure that a substantial connection exists between the nonresident’s activities in the forum and the subject matter of the suit.(4) Due process requires that individuals have fair warning that a particular activity may subject them to the jurisdiction of another forum, such that they could reasonably expect to be haled into court in that particular forum.(5) When applied to a divorce action, the three-part test has failed when none of the events which led up to the divorce occurred in Georgia.(6)

Georgia’s long-arm statute contains grounds for personal jurisdiction over nonresidents other than those relating to domestic relations. Among those other grounds, jurisdiction is conferred over a nonresident who “[t]ransacts any business within this state” or who “[o]wns, uses, or possesses any real property situated within this state.”(7)

As to the latter provision, this author found no published appellate decision explicitly addressing whether a nonresident spouse, for whom jurisdiction appears unavailable under the domestic relations long-arm provision, can be haled into a Georgia divorce action based only on the defendant’s ownership, use, or possession of real property in this state. The closest an appellate court has come to accepting that premise was in a divorce case in which our Supreme Court, finding jurisdiction wanting, held in part in 2012 that “Wife has not lived in Georgia since 2003. Wife does not own any property in Georgia and has not transacted any business in Georgia since 2003.”(8)

In theory, ownership, use, or possession of real property in Georgia could satisfy the three-part jurisdictional test for a divorce action. A defendant’s ownership, use, or possession of real property in Georgia logically should satisfy the first prong (purposeful availment) of the test. As for the second prong (causal connection), it seems at least arguable that a divorcing spouse’s claim for equitable division of marital assets arises in part out of the defendant’s ownership of any real property construed as marital property, whether that property is located here or elsewhere. It likewise seems arguable that a nonresident who owns marital property in Georgia should reasonably anticipate being haled into a Georgia court in the event of a divorce from a spouse who resides in this state, thus satisfying the third prong (minimum contacts).

In contrast to the dearth of authorities addressing the application, in a divorce action, of the property ownership long-arm provision, published case law does address the transaction-of-business subsection of the long-arm statute, to a certain extent. Appellate decisions have construed the transaction-of-business subsection as applying only to cases sounding in contract, and in which the cause of action arose from the very transaction of business which formed the basis for personal jurisdiction.(9) Moreover, our Supreme Court has expressly refused to extend the subsection to include non-commercial claims arising from personal relationships.(10) In that regard, a nonresident’s social visits to Georgia cannot constitute transacting business in Georgia, even when the plaintiff’s cause of action arose from the defendant’s social visits.(11) The Georgia Supreme Court also has acknowledged a distinction between the transaction of business and the performance of family obligations, and held that the transaction of business subsection is “not intended to extend long-arm jurisdiction to claims, such as alimony, which arise out of the dissolution of the marriage.”(12)

While appellate decisions have provided needed clarification regarding jurisdiction based on the transaction of business in Georgia, they have not addressed whether a nonresident’s actual, transaction of a commercial enterprise in this state can subject the individual to personal jurisdiction in a divorce action here. Logically, the same analysis proposed above for the application of the three-part jurisdictional test to the ownership of real property in this state also could apply to a nonresident’s transaction of business. The nonresident seemingly should be viewed as purposefully availing himself of the privilege of doing business here. Whether the business interest constitutes marital property or separate property of the nonresident, the value of the business and its earnings would be relevant to claims for equitable division, alimony, and attorneys’ fees in a divorce action, thereby potentially satisfying the causal connection prong of the jurisdictional test. And as with property ownership, it seems arguable that a nonresident who transacts business in this state should reasonably anticipate being haled into a Georgia court in the event of a divorce from a resident spouse.

Of course, since personal jurisdiction must be assessed on a case-by-case basis(13), the nature and extent of a nonresident defendant’s business interests in this state may dictate whether a Georgia divorce court can assert personal jurisdiction over the nonresident. On one end of the spectrum, the mere sale of products to Georgia residents from another state should not suffice.(14) On the other end of the spectrum, the nonresident’s operation of a business, the principal office of which is located in Georgia, seems far more likely to confer personal jurisdiction over that individual in a divorce action. The latter argument remains mere supposition though, unless and until an appellate court has spoken on that issue.

(1) O.C.G.A. § 9-10-91(5). (2) See Ennis v. Ennis, 290 Ga. 890, 891-892(1), 725 S.E.2d 311 (2012); Strickland v. Strickland, 272 Ga. 855, 856-857, 534 S.E.2d 74 (2000); Frasca v. Frasca, 254 Ga. 532, 534-535, 330 S.E.2d 889 (1985). (3) Smith v. Smith, 254 Ga. 450, 453(3), 330 S.E.2d 706 (1985). (4) Marbury v. Marbury, 256 Ga. 651, 654–655(2), 352 S.E.2d 564 (1987). (5) Garvey v. Mendenhall, 199 Ga.App. 241, 243(2), 404 S.E.2d 613 (1991), citing Burger King v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.E.2d 528 (1985). (6) Marbury, supra, 256 Ga. 651, 654–655(2). (7) O.C.G.A. § 9-10-91(1) and (4). (8) Ennis, supra, 290 Ga. at 891-892(1). (9) Standard v. Meadors, 347 F.Supp. 908, 910 (N.D. Ga. 1972), citing Castleberry v. Gold Agency, 124 Ga. App. 694, 697, 185 S.E.2d 557 (1971). (10) Frasca, supra, 254 Ga. at 534; and Warren v. Warren, 249 Ga. 130, 131, 287 S.E.2d 524 (1982). (11) Garvey, supra, 199 Ga.App. at 242-243(2). (12) Warren, supra, 249 Ga. at 131. (13) Marbury, supra, 256 Ga. at 654. (14) Coe & Payne Co. v. Wood-Mosaic Corp., 125 Ga.App. 845, 857(2), 189 S.E.2d 459 (1972), overruled on other grounds, Coe & Payne Co. v. Wood-Mosaic Corp., 230 Ga. 58, 195 S.E.2d 399 (1973).