What is the Proper Forum?

Most people have heard of the concept of “jurisdiction.”  Jurisdiction means that the court has the power to make decisions about the subject matter and the parties in a particular law suit.  Fewer people are acquainted with the concept of “forum.”  In the context of a divorce, the proper forum to bring a divorce will be the county where the parties reside.  This sounds simple, but can actually become quite complicated, most commonly when the parties do not reside in the same county.  In some cases, the parties do not even reside in the same state by the time the divorce occurs.  When this is the case, one spouse may file a motion to dismiss the divorce due to inconvenient forum, which is also referred to as “forum non conveniens.”  In Tatham v. Tatham, the New Jersey appellate court had to address such an issue.

In the Tatham case, the parties were Australian citizens.  They moved to New Jersey in 2007, but then husband then moved to Singapore in 2008.  Over the next several years, the husband would often travel back and forth to New Jersey in order to visit the parties’ children.  In 2011, the wife filed for divorce in New Jersey in the county where she and the children lived.  The husband filed a motion to dismiss the divorce, using the doctrine of forum non conveniens.  The husband alleged that the proper forum for the divorce would be Australia, reasoning that both the parties were Australian citizens.  The trial court agreed and dismissed the divorce, based partially on the forum issue.  The appellate court did not agree, however, and reversed the dismissal.  The court referenced common law and stated that “a court should decline to exercise jurisdiction over a dispute when its disposition in another jurisdiction ‘will best serve the convenience of the parties and the ends of justice.’”  The appellate court noted first that neither party actually resided in Australia, and travelling there would involve a twenty four hour flight from Singapore and a twenty-one hour flight from New Jersey.  The appellate court held that Australia was literally inconvenient for both parties.  The court went on to note that the husband frequently travels to the United States and has considerable financial resources to continue to do so.  The court also pointed out that there is a strong presumption in favor of a New Jersey resident who chooses the home forum for a divorce action.  The husband failed to show he would be unduly burdened by having to litigate the divorce in New Jersey, and the appellate court reversed the trial court.

We have experience in helping our clients understand jurisdiction and forum issues. Let us help you with understanding how forum selection will impact your divorce today at (732) 529-6937 for an appointment.

About the Author


John Nachlinger is a co-founder and managing attorney of Netsquire, a family law firm focused on streamlining divorces through effective mediation, settlement drafting, and court filing assistance. As a New Jersey Supreme Court Certified Matrimonial Law Attorney and Qualified Mediator, John guides couples toward equitable agreements without the cost and stress of litigation.

Recognized as a New Jersey Super Lawyer for over a decade, John’s client-focused approach aims to foster understanding during challenging transitions. With a background spanning top law journals, judicial clerkships, and boutique family law firms, John now applies his analytical skills to create workable solutions for all parties. His mediation services reshape the divorce journey by prioritizing compassion and compromise.

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