## Facts

- Elizabeth Susan Denny (wife) and John Michael Abernathy (husband) married in Florida and lived together in Louisiana until they separated.
- After the separation, the husband moved to Georgia.
- About a year after moving, the husband filed a divorce action in a Georgia superior court seeking (1) a total divorce and (2) division of marital property located in Georgia.
- The Georgia property consisted of marital property the husband brought with him from Louisiana when he moved.
- The wife remained outside Georgia and was served by publication and mail.
- The wife filed a special appearance to contest the Georgia court’s exercise of personal jurisdiction over her.
- The trial court ruled that it had jurisdiction over the res of the marriage to decide the divorce and had in rem jurisdiction over the marital property located in Georgia to decide division of that property, without finding in personam jurisdiction over the wife.
- The trial court certified its jurisdiction order for immediate review, and the wife obtained interlocutory review in the Supreme Court of Georgia.

## Issues

1. Whether a Georgia court may grant a divorce dissolving marital status without personal jurisdiction over a nonresident spouse when the plaintiff spouse is domiciled in Georgia for the statutory period.
2. Whether, consistent with due process and minimum-contacts limits, a Georgia court may exercise in rem jurisdiction to adjudicate and divide marital property located in Georgia when the nonresident spouse is not subject to personal jurisdiction in Georgia.

## Decision

- The Supreme Court of Georgia affirmed the trial court’s interlocutory order.
- The court held that personal jurisdiction over the nonresident spouse was not required to grant a divorce when the plaintiff establishes Georgia domicile for the statutory period.
- The court held that Georgia courts could exercise in rem jurisdiction over marital property located in Georgia to decide division of that property, and that due process was satisfied because the dispute was directly tied to property located in the forum.

## Legal Principles

- A Georgia court may dissolve a marriage based on jurisdiction over marital status arising from the plaintiff’s domicile in Georgia for the statutory period required by O.C.G.A. § 19-5-2, even if the defendant spouse is not subject to personal jurisdiction in Georgia.
- A state may alter the marital status of its domiciliaries through a divorce decree based on status jurisdiction, notwithstanding the absence of the other spouse from the forum.
- A court may exercise in rem jurisdiction over property located within the state to determine interests in that property when the property is the subject of the litigation.
- After Shaffer v. Heitner, assertions of in rem jurisdiction must still satisfy due process through minimum contacts; where the litigation concerns ownership and division of property located in the forum, the property’s presence and the dispute’s connection to it can satisfy that requirement.
- Relief that operates as an in personam judgment against a nonresident spouse (such as obligations not tied to in-state property or orders affecting out-of-state property) generally requires personal jurisdiction; in rem relief may be limited to determining rights in property located in the forum.

## Conclusion

Abernathy v. Abernathy holds that Georgia may grant a divorce based on the domiciled spouse’s status jurisdiction without personal jurisdiction over the nonresident spouse, and may also decide the division of marital property located in Georgia through in rem jurisdiction consistent with due process, so long as the court’s orders are confined to marital status and rights in the in-state property.


Abernathy v. Abernathy, 482 S.E.2d 265 (1997)