Divorce and domicile: time to sever the knot.

AuthorWasserman, Rhonda

[T]he law of migratory divorce inhabits a looking-glass world in which

the usual conflicts principles are distorted beyond recognition.

Jurisdiction over the defendant seems to be neither necessary

nor sufficient to empower a court to hear a divorce case.(1)

INTRODUCTION

The jurisdictional rules that apply in divorce cases are the precise opposite of those that apply in all other cases. In virtually all cases, a state court judgment rendered without jurisdiction over the defendant is void in the rendering state under the Due Process Clause(2) and not entitled to full faith and credit else where.(3) In divorce cases, however, as long as the petitioning spouse is domiciled in the rendering state, the decree is valid there and enforceable elsewhere, even if the court lacked in personam jurisdiction over the defending spouse.(4) According to the status exception for divorce cases, jurisdiction over the defending spouse is not necessary.

Nor is jurisdiction over the defending spouse sufficient in divorce cases. In all other cases, as long as the rendering court has in personam jurisdiction over the defendant and provides adequate notice, the court acts consistently with the Due Process Clause, and its judgment is enforceable elsewhere under the Full Faith and Credit Clause.(5) In divorce cases, however, even if the court has in personam jurisdiction over both spouses, the decree violates due process(6) and is not entitled to full faith and credit unless one of the spouses is domiciled in the rendering state.(7) The domicile rule thus means that jurisdiction over the defending spouse is not sufficient either.

Not only are the jurisdictional rules that apply in divorce cases inverted, but the choice-of-law approach taken in these cases is unusual too. In all other interstate cases, the forum state applies its own choice-of-law law to determine which state's substantive law should govern the controversy. In divorce cases, however, the courts eschew choice-of-law analysis and instead always apply their own divorce law. The choice-of-law corollary to the domicile rule thus ensures application of the divorce law of one of the spouses' domiciliary state.

A case decided by the Alaska Supreme Court in 1988, Perito v. Perito,(8) illustrates the bizarre consequences of the unique conflicts principles that presently govern divorce cases. The Peritos' marriage lasted for approximately twenty-five years.(9) They lived in New York for their entire married life.(10) A New York court denied Ruth Perito's first petition for divorce because she did not prove the requisite grounds for divorce.(11) After this denial, Ruth contacted lawyers in Nevada and Alaska to inquire into the requirements for divorce in those states. Following those conversations, Ruth flew to Alaska with a friend, knowing no one there except the lawyer with whom she had spoken.(12) Within a few hours of her arrival, Ruth told the friend "`that she felt sure this was the place she wanted to be.'"(13) The next day, she filed for divorce in the Superior Court of Alaska.(14) Her husband, Tom Perito, who never had been to Alaska, moved to dismiss for lack of jurisdiction, claiming that Ruth was not an Alaska domiciliary.(15) The court denied the motion and granted a divorce.

On appeal, the Alaska Supreme Court affirmed. Because Ruth was domiciled in Alaska at the time she filed her petition--she was physically present and intended to remain permanently in Alaska--the court had jurisdiction to grant a divorce.(16) Tom's lack of contacts with Alaska was irrelevant. The couple's twenty-five years in New York were irrelevant. The New York court's previous denial of a divorce was irrelevant. What was relevant--indeed controlling--was that one of the spouses was domiciled in Alaska.(17)

All three of the conflicts doctrines at play in divorce cases--the status exception, the domicile rule, and the choice-of-law corollary--are subject to substantial criticism. The status exception compels respondents in divorce cases either to defend in states with which they have no meaningful connection or to forfeit their right to stay married. Put more concretely, it is the status exception that compelled Tom Perito to defend in Alaska, a state with which he had no contacts whatsoever. The domicile rule results in inefficiency, inconvenience, and delay for couples that lack substantial connection to their state of domicile. Furthermore, it invites perjury by requiring litigants to swear that they are domiciled in their chosen forum state. It was the domicile rule that forced Ruth Perito to profess an undying attachment to Alaska in order to sue for divorce there. Finally, the choice-of-law corollary purports to authorize states to apply their divorce laws to marriages with which they have no real connection. In other words, Alaska applied its law to sever a marriage with an enduring connection to New York simply because Ruth Perito announced her intention to stay on the day she arrived in Alaska. Such an elusive and malleable construct as domicile should not have such force.

In a previous article, I advocated the rejection of the status exception because it denies defending spouses a liberty interest without due process of law.(18) This Article addresses the domicile rule and its choice-of-law corollary. States adopted these principles to serve three public policies: the preservation of state sovereignty; the promotion of convenience of the parties; and the ease of judicial administration. Yet, as this Article demonstrates, neither the domicile rule nor its corollary actually furthers any of these policies. Given their inefficacy and the criticisms to which they are subject, why have the states not rejected the domicile rule and its corollary? Case law suggests that the federal Constitution actually compels the states to retain the domicile rule and its choice-of-law corollary to ensure the validity and interstate recognition of divorce decrees.(19) Could it be that even though the domicile rule and its choice-of-law corollary no longer serve the public policies underlying them, and even though they cause inefficiency, inconvenience, and delay, that the states must retain them to satisfy due process concerns or the Full Faith and Credit Clause?

Part I of this Article will clarify the important differences between residence and domicile. Part II will trace the history of the domicile rule and its choice-of-law corollary. Part III will explore and critique the three public policy rationales offered in defense of the rule and its corollary. After demonstrating in Part III that none of these policy rationales justify retention of the domicile rule or its corollary, Part IV will then consider whether the Constitution actually compels the states to retain them. Finally, Part V proposes a creative solution that attempts to avoid these constitutional problems while nevertheless permitting the states to abolish the domicile rule and its choice-of-law corollary.

Under this proposal, a state could grant a divorce after meeting one requirement: the forum state must have in personam jurisdiction over the defending spouse. As in all other civil cases, the petitioner would not have to be domiciled in the forum state or satisfy a durational residency requirement, nor would courts guarantee the application of forum law. Instead, under standard choice-of-law principles, the court would select the divorce law of the state most interested in the couple. This proposal would permit couples to litigate divorce actions in the state most convenient for both parties, but subject to the law of the state with the greatest interest in their marital status.

  1. RESIDENCE AND DOMICILE DISTINGUISHED

    The term "residence" is a common, everyday word that refers to "the place, esp. the house, in which a person lives or resides; dwelling place; home."(20) A person therefore resides in the state in which she lives. If the state in which a person resides is in controversy, i.e., homes in several states, then a court may determine residence by considering objective evidence such as the amount of time spent in each state, where the person pays taxes, where the person can vote, where the person sees the doctor, where the person registers her car, and the like.(21)

    "Domicile," on the other hand, is a technical, legal term that often turns on the subjective intent of the person. Every person has a domicile of origin, assigned at birth, which derives from the domicile of one's parents.(22) Once a person is legally capable of choosing a domicile of her own, she may do so by being physically present in the new state with the "inten[t] to make that place [her] home for the time at least."(23) According to the comments to the Restatement (Second) of Conflict of Laws, "[f]requently, this intention is expressed in terms of the durability of the intended stay, as, for example, that one must intend to reside indefinitely in the place place. . . ."(24) A person's "feelings toward the place" are also relevant in determining domicile.(25) If the state of a person's domicile is in controversy, then the outcome invariably turns on the requisite state of mind.(26) In such cases, a person's own testimony about her subjective intentions, and her formal and informal declarations, as well as her acts, will be considered as evidence.(27)

    Some people actually reside in one state for years, while maintaining a formal domicile in a different state. For example, undergraduate students who live away from home for four or five years often retain domicile in the state of their parents' home.(28) Likewise, workers on "temporary" assignment away from home--even for years--retain their original domicile.(29) Similarly, members of the military, if ordered to a station and assigned living quarters there, do not acquire a domicile in that state because "[a] person does not acquire a domicil of choice by his presence in a place under physical or legal...

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