Newport v. Newport
219 Va. 48, 245 S.E.2d 134 (1978)

  • Elswick and Flora were married. Elswick went off to fight in the war, and when he got back, instead of moving home to Virginia, he moved to Nevada and filed for divorce.
  • The Nevada Court granted Elswick an ex parte divorce. The divorce decree only ended the marriage, it had no provision for spousal support (aka alimony), or anything else.
    • Ex parte means that Flora wasn’t involved or made an appearance in Nevada.
  • Flora went to a Virginia Court and asked for spousal support. In response Elswick argued that Flora was not eligible for anything that wasn’t in the Nevada divorce decree.
    • Elswick basically said that since the divorce was final and done with, there was no legal relationship that Virginia could be awarded spousal support for.
  • The Trial Court awarded spousal support to Flora. Elswick appealed.
    • The Trial Court found that they had to give full faith and credit to the Nevada divorce decree.
    • However, the Court found that Nevada did not have jurisdiction to adjudicate spousal support. That was a question that Virginia could adjudicate separately.
  • The Virginia Supreme Court affirmed.
    • The Virginia Supreme Court found that Nevada never had personal jurisdiction (aka in personam) over Flora, therefore they cannot rule on anything that requires in personam jurisdiction.
    • The Court found that Nevada did have property jurisdiction (aka in rem) over the marriage, so they did have jurisdiction to issue the divorce decree.
  • This case helped to define the concept of the divisible divorce. That means that the divorce decree of one State is effective throughout the US insofar as it affects marital status, but it is ineffective on other issues such as child support, child custody, or spousal support.
    • The basic difference is that a marriage is kind of like ‘property’ that travels with the spouses. So when a person gets a divorce in Nevada, Nevada has in rem jurisdiction because the spouse’s property is in Nevada.
    • However, spousal support et. al. requires in personam jurisdiction, and if the spouse doesn’t travel to Nevada, Nevada does not have jurisdiction.
      • Note though that if you travel to Nevada to contest the divorce, that gives Nevada in personam jurisdiction to adjudicate all the settlement issues!
    • The only exceptions are if the issue has already litigated the issue in a State, you can’t go to another State to relitigate (aka estoppel), or if you waited too long (aka laches).