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Property Wars

Chrissy and John were married and lived together in Georgia. While married, John inherited the home he and Chrissy lived in. The home was located in the state of Georgia. John never transferred title from himself to himself and Chrissy. After things went sour, Chrissy left the home, wanting nothing more to do with John. John has not heard from Chrissy in over 2 years. They do not have any children and, thus, no reason to communicate. John has recently entered into a new relationship and wants to get married at some point. John knows that’s not possible as long as he’s still married to Chrissy. He decides he wants a divorce. John decides to locate Chrissy and despite his due diligence, he has not been able to do so. John files for divorce and decides to serve Chrissy by publication, his only option as he sees it. John’s biggest concern is his home. He hopes that Chrissy has no rights to it. John wants to know whether the Court has the power to award him his home.

In rem jurisdiction refers to the power of a court over an item of real or personal property. While in rem jurisdiction refers to the power of a court over an item of property, in personam jurisdiction refers to the power of a court over a person. Pursuant to in rem jurisdiction, a court has the power to render judgments over property located within its borders. When a property is located within the states and the court has personal jurisdiction over both parties, the Court has both in rem jurisdiction over the property within the state and in personam jurisdiction over the Respondent. The court can validly award property located in the state.

If the Court only has personal jurisdiction over the Petitioner and not the Respondent, as is the case here, the Court only has in rem jurisdiction over the property within the state, but does not have in personam jurisdiction over Respondent. The court can validly award property within the state pursuant to quasi in rem jurisdiction. Quasi in rem jurisdiction gives the Court the power to affect an out-of-state person’s rights to property located in-state. Although Georgia may not have personal jurisdiction, or in personam jurisdiction, over Chrissy, they have jurisdiction over the home because the home is located in Georgia, and they can award John the home.

But what if John has property located outside of the state of Georgia? At the time John inherited the personal residence, he inherited a vacation property located in Florida. Could the court award that property?

If the property is located out of state but the court has personal jurisdiction over both parties, the Court does not have in rem jurisdiction. The Court can, however, affect disposition of the property if an order is directed against the parties. The parties would then have to domesticate the Georgia order in the state in which the property is located. Additionally, if the property is located out of state and the court only has jurisdiction over the Petitioner, the Court does not have neither in rem nor in personam jurisdiction. Therefore, the court cannot validly award property. In this case, because Georgia would only have jurisdiction over John and not Chrissy, and the property is located out of state, a Georgia court would not be able to award John the property.

As the saying goes, when it comes to the disposition of property in a divorce, “it’s complicated.”

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