- January 30, 2015
- Posted by: admin
- Category: News
Filing for divorce in one state while the spouse resides in another state can complicate the divorce. Filing for divorce in another country and seeking to have the court decree recognized in the United States can be doubly difficult. In both the conditions, one is likely to face two challenges – convincing the court to recognize the case and persuading the state government to recognize the divorce. If a person is determined to file for divorce, there is no requirement to return to the state that issued their marriage license. As a matter of fact, that court will refuse to hear the case if the person no longer resides in that state. Each state has a residency requirement; that means that the person seeking divorce must live there for a certain amount of time before filing for divorce. Requirements differ from one state to another. Residency can be confirmed by various means such as a lease, a state-issued driver’s license, a voter registration card and many other types of documents.
For instance, in New York, an action for divorce may only be maintained in New York where one of the five residency requirements are met, (See DRL § 230) as referred in L.A.B. v B.M., 44 Misc. 3d 1209(A) (2014), wherein Plaintiff must have sufficient facts to prove either: (1) “the parties have resided in [New York] as husband and wife and either party [was] a resident thereof when the action [was] commenced and has been a resident for a continuous period of one year immediately preceding”; or (2) “either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action.” DRL §§ 230(2), 230(5). The Supreme Court of New York, Westchester County further emphasized that residency may be established “by either the traditional method of proving a party has been domiciled or, in the alternative, has resided in New York State for the continuous period of time specified above.” The Court further observed that residence, in contrast to domicile, is determined by “objective fact findings as to where the party physically lived,” not the party’s subjective intent. A party may maintain more than one residence. Where a party maintains more than one residence, the court will determine whether any other place exists to which a party returned as frequently or with such regularity.
After the divorce is final, the individual may go back to the same court to request a change in the terms of the divorce decree. For instance, such a change may relate to child custody, visitation etc.
A foreign divorce might not be recognized in the United States. A person might travel to a foreign country to get a quick divorce. Most states do not automatically recognize a foreign divorce decree, regardless of whether the marriage took place in the United States. The same has been observed by the United States District Court for the Eastern District of New York as recognition of a foreign court’s judgment with regard to a divorce that takes place in a foreign country is based on the principle of international comity. This principle of international comity does not apply to matrimonial actions that take place within the territory of the United States. Miezgiel v. Holder, 11-CV-2129 (DLI) (CLP), 2014 U.S. Dist. LEXIS 97853.
Before a state recognizes a foreign divorce, two important requirements must be met – at least one spouse must have lived in the foreign country at the time of the divorce and the spouse residing in the United States must have been properly notified of the foreign divorce proceedings. The Supreme Court of Washington recognized a foreign divorce decree, thus upholding its validity. The rationale for the same lay on the savings clause of the Uniform Foreign-Country Money Judgments Recognition Act, Wash. Rev. Code § 6.40A.090, that permits recognition of a foreign judgment under principles of comity. In re Estate of Toland, 180 Wn.2d 836 (2014).