Saturday, June 24, 2006

Service of Process While In Texas for Divorce Mediation Can Establish Personal Jurisdiction

If you live in Texas and voluntarily attend mediation in another state prior to a divorce case being filed, you may get slapped with service papers while attending the mediation. Also if you live in another state and come to Texas for a mediation, you may get slapped with a Texas lawsuit while here.

Although the Texas ADR Statute protects the confidentiality of the proceedings, there is nothing to protect the parties to a mediation (or any other persons present) from being approached by a process server and personally served with notice of a suit. Certainly a process server cannot trespass on private property, but you can be caught walking to or from the mediation site.

In addition, presence in the State of Texas for the purposes of mediation does not protected a person from "in personam" jurisdiction. The Court will likely consider your presence in the State of Texas for the purpose of mediation as grounds that you have submitted yourself to Texas jurisdication, and you are subject to lawsuit in this state. If this happens, you could not claim that the State of Texas does not have jurisdiction over you..even if you live in another state.

I am aware of no Texas statutory or case law on this exact point, but a recent Washington State case favored the trend that there are no protections from personal service for mediation.

Recently, the Washington Court of Appeals discussed the propriety of asserting personal jurisdiction on the basis of personal service of process on a divorce litigant while they are present in the state for a divorce mediation.

The court rejected the approach of those states that require the defendant be warned that he might be served with process when entering the state for settlement negotiations and held that the Washington court properly had personal jurisdiction over husband on the basis of the personal service and the fact that the couple had owned Washington property during the course of the marriage (though they resided in Ohio).

In re Marriage of Craze, 2006 Wash. App. LEXIS 1279 (June 19, 2006).

Therefore, if you are seeking to avoid having to attend a divorce, (or any other lawsuit) in a state other than where you live, be very wary before voluntarily entering the state to attend a mediation.


Post a Comment

<< Home