Tuesday, August 21, 2007

Case Law Development: Collateral Attack on Previous Divorce

The Tennessee Court of Appeals reviewed the standards for permissible collateral attacks on prior divorce decrees and reemphasized the very narrow range of situations in which these attacks can be successful.  The case involved a divorce action brought by Wife against her fourth Husband.  Husband counterclaimed with an action for annulment, claiming that Wife's prior divorce against second Husband, now deceased, was without jurisdiction and thus void, making the current marriage invalid as bigamous.  Husband argued that Wife's service of second husband by publication left that court without jurisdiction and denied second husband's due process rights.  The trial court agreed, granted the annulment and divided the couple's property according to title, rather than the equitable distribution statute. The court of appeals reversed, holding that, while lack of jurisdiction can be a basis for a collateral attack on a divorce, the lack of jurisdiction must appear on the face of the record, not from parol evidence. Here, the record of the prior divorce showed that Wife had made a diligent search for second husband's whereabouts and was unable to locate him.  Her deposition testimony in the current action could not be introduced to attack that finding.  Moreover, to the extent publication notice was insufficient as a matter of due process, that issue was not a grounds for an attack on the prior divorce by a stranger to that action.  Service of process is a personal right that can be waived (the court noted that second husband had never attacked the divorce and had, indeed, remarried himself). 

Hawkins v. Hawkins, Tennessee Court of Appeals (August 20, 2007)
Opinion online (last visited August 21, 2007 bgf)

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Comments

The Justices of the Tennessee Court of Appeals made the correct ruling...for the sake of judicial integrity, the circumstances where a law will allow a collateral attack on a prior divorce decree must remain limited.

Posted by: Divorce Attorney Oklahoma City | Jul 17, 2011 6:42:08 PM

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