§ 5.4 Legal Actions Involving Marriage and Family

• Library: Rights of Foreign Nationals (OSBar) (2020 Ed.)

§ 5.4 LEGAL ACTIONS INVOLVING MARRIAGE AND FAMILY

§ 5.4-1 Separation, Dissolution, or Annulment of Marriage

The factual and legal parameters and jurisdictional requirements to file an action for separation, annulment, or dissolution of marriage actions are covered in Family Law (OSB Legal Pubs 2013). However, some issues would benefit from further discussion when one or both parties are foreign nationals, because Oregon is a law-of-domicile forum (which means no matter where married, the law for divorce of a couple will be the law of the forum, i.e., Oregon). These issues are addressed in § 5.4-1(a) to § 5.4-1(f).

§ 5.4-1(a) Domicile

Subject-matter jurisdiction in dissolution proceedings is founded on domicile. Williams v. North Carolina, 317 US 287, 303, 63 S Ct 207, 87 L Ed 279 (1942). The definition of domicile in Oregon was set forth in a 1981 court of appeals case: "To acquire a domicil[e] of choice in a place, a person must intend to make that place his home for the time at least." In re Marriage of Pirouzkar, 51 Or App 519, 525, 626 P2d 380 (1981) (quoting Restatement (Second) of Conflict of Laws § 18 (1971)). Domicile in Oregon also requires two essential factors: "(1) residence (bodily presence) in the new locality, and (2) an intention there to remain, to the exclusion of a domicile elsewhere." Smith v. Smith, 205 Or 650, 655, 289 P2d 1086 (1955).

Domiciliaries are those who have a fixed, permanent and principal home and to which, whenever absent, they always intend to return. . . . At the opposite end of the scale are transients, those persons who are just passing through a locality. In between these notions of permanence and transience are residents. Residency means an established abode, for personal or business reasons, permanent for a time. See Martinez v. Bynum, 461 U.S. 321, 330-31 [103 S Ct 1838, 75 L Ed 2d 879] (1983). A resident is so determined from the physical fact of that person's living in a particular place. See 8 U.S.C. § 1101(a)(33) (defining "residence" as "place of general abode . . . without regard to intent"). One may have more than one residence in different parts of this country or the world, but a person may have only one domicile. A person may be a resident of one locality, but be domiciled in another. See [Mississippi Bank of Choctaw Indians v. Holyfield, 490 US 30, 48, 109 S Ct 1597, 104 L Ed 2d (1989)].

Rosario v. U.S. Immigration & Naturalization Serv. , 962 F2d 220, 224 (2d Cir 1992).

In Marriage of Pirouzkar, the parties were married in Iran and arrived in the United States in 1977, on nonimmigrant B-2 visitor visas. Shortly thereafter, they applied for adjustment of status to that of permanent residents. The parties bought a house in Oregon and the wife had resided there. The children attended school, the wife was employed in Oregon, and the wife paid 1979 Oregon income tax. Marriage of Pirouzkar, 51 Or App at 521. The husband admitted that the wife's subjective intent was to establish a domicile in Oregon. However, the husband argued that she was legally incapable of doing so because the parties entered the United States under 8 USC § 1101(a)(15), and her visitor visa had expired. The court found the husband's contentions presented

two questions: (1) does federal law create a disability which, by virtue of the Supremacy Clause, prevents the states from recognizing wife's actual intent to establish a domicile in this state; and (2) under state law, does wife's apparently precarious status under the immigration laws preclude the formation of the intent required to establish domicile in this state?

Marriage of Pirouzkar, 51 Or App at 523-24. The court concluded "no" to both questions, finding that on the record the wife "presently intends to remain in this state indefinitely." Marriage of Pirouzkar, 51 Or App at 526.

Although a lawful permanent resident foreign national may exercise the requisite mental state of intent to remain, the flip side may be abandonment of the former domicile. For the foreign national on a nonimmigrant visa, U.S. immigration law requires the applicant to state that the applicant is not abandoning the former residence and will return to the applicant's country when the visa expires. There is split authority on whether nonimmigrant status precludes formation of the intent to establish domicile. In Padron v. Padron, 281 Ga 646, 641 SE2d 542 (2007), the Georgia Supreme Court first reiterated, "[a]s used in OCGA § 19-5-2, 'resident' means 'domiciliary.' Conrad v. Conrad, 278 Ga 107, 108 (597 SE2d 369) (2004)," and then set forth its state's law: "[a] person's immigration status does not, as a matter of law, preclude that person from establishing residency for purposes of obtaining a dissolution of marriage." Padron, 641 SE2d at 543. Oregon's Pirouzkar case was cited as support for this proposition.

Another supportive case (also citing Marriage of Pirouzkar) with a thorough analysis of the basis of other courts' rulings on this issue is In re Marriage of Dick, 15 Cal App 4th 144, 18 Cal Rptr 2d 743, rev den, 1993 Cal LEXIS 4466 (1993), in which the issue was that the husband's immigrant status as a nonimmigrant alien precluded a finding of residence for purposes of dissolution. The husband, whose current immigration status was tourist, which required him to leave the country every six months and reenter, had investigated obtaining a green card but had not yet filed an application for one. However, he had relocated to Los Angeles with the intent of remaining there indefinitely to develop business contacts. He obtained a California driver license, opened a local bank account, rented an apartment, had a telephone installed in it, had mail forwarded to his Los Angeles apartment from his other residences, and owned a car registered in California. He was therefore found to be a resident.

We conclude that husband's nonimmigrant status does not preclude a finding of residence under California law for purposes of obtaining a dissolution of marriage. . . . [A] nonimmigrant alien in the United States on a renewable visa may have the dual intention of remaining in this country indefinitely by whatever means including renewal of a visa and of returning to his or her home country if so compelled. At most, "alien status can . . . operate as an evidentiary fact against the person's alleged intention to remain in the state permanently [citation]."

In re Marriage of Dick, 18 Cal Rptr 2d at 747-48 (quoting Cocron v. Cocron, 84 Misc 2d 335, 375 NYS2d 797, 809 (NY Sup Ct 1975)).

In contrast, in Adoteye v. Adoteye, 32 Va App 221, 527 SE2d 453 (2000), the wife lived in Virginia under a G-4 visa (issued under 8 USC § 1101(a)(15)(G)(iv)). A G-4 visa is a nonimmigrant visa issued to foreign nationals living in the United States while employed at international organizations. In this case, the visa was conditioned on continuous employment at the same agency, where she had worked for 12 years. Adoteye, 527 SE2d at 455. In Virginia, "[d]omicile contemplates living in a place with the intent to remain there permanently or for an indefinite period of time." Rock v. Rock, 7 Va App 198, 372 SE2d 211, 213 (1988). Because the wife was a Ghanaian citizen and had not taken steps to secure citizenship or an immigrant visa, she had not expressed with deeds her intent to remain in Virginia. Adoteye, 527 SE2d at 456. The Pirouzkar and Dick cases both involved foreign nationals who made steps to secure a more permanent residence and expressed by their conduct their intent to remain, and thus were found to have established domicile. The wife in Adoyete took no steps. One concludes from these cases that the immigration law under which one entered is not enough by itself to prevent formation of the intent to establish domicile. The determination will turn on additional action or lack of action by the party. The split in authority tends to favor the ability to establish domicile.

There are numerous cases in which similar issues arise, such as whether a certain immigration status precludes a student from being found a state resident for in-state college tuition. See Hein v. Arkansas State Univ., 972 F Supp 1175 (ED Ark 1997). These cases are usually not instructive in the domicile context, so they will not be examined here.

Only one party needs to be domiciled within Oregon for an Oregon court to enter a judgment affecting the status of the marriage, meaning it can grant an ex parte status-only dissolution. See In re Marriage of Kimura, 471 NW2d 869 (Iowa 1991), in which an Iowa court exercised jurisdiction to allow an ex parte divorce when the petitioner had permanent resident status. However, an Oregon court does not have the power to address issues regarding a nonresident spouse's monetary obligations unless the nonresident spouse is within the court's jurisdiction. In re Marriage of Adams & Adams, 173 Or App 242, 245, 21 P3d 171 (2001); In re Marriage of Horn and Horn, 97 Or App 177, 180-81, 775 P2d 338, rev den, 308 Or 465 (1989); see Estin v. Estin, 334 US 541, 548-49, 68 S Ct 1213, 92 L Ed 1561 (1948) (the judgment of a court that does not have jurisdiction is not entitled to full faith and credit).

An Oregon court has subject-matter jurisdiction to dissolve a marriage when a party is "a resident of or . . . domiciled in [Oregon] at the time the suit is commenced and continuously for a period of six months prior thereto." ORS 107.075(2). For separation, simple residence is required at the time of filing. ORS 107.075(3). If there is incapacity or fraud in obtaining consent (ORS 107.015(1)), and the marriage took place in Oregon, mere residency or domicile is required. ORS 107.075(1).

In Volmer v. Volmer, 231 Or 57, 63-64, 371 P2d 70 (1962), the Oregon Court of Appeals reversed the trial court's grant of a dissolution because, on the record, there was insufficient evidence of the husband's intent to make Oregon his domicile.

QUERY: Is there such a status as nonresident domiciliary?

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