Tuesday, May 4th, 2010
1. I am foreign national from India but I have lived in New Jersey for the past four years on a work VISA. Can I still file for divorce in New Jersey even though I am not a U.S. citizen?
New Jersey public policy strongly favors granting all persons who live in New Jersey to have complete access to the family courts. The New Jersey judiciary is founded on the principles that all New Jersey residents must be granted full access to the family court in all matters involving protection orders, divorce, legal separation, child support, custody, domestic violence, and child abuse. In short, you don’t have to be a U.S. citizen to file for divorce in New Jersey. Moreover, you don’t even have to have a valid VISA to file for divorce in New Jersey. The main requirement to file for divorce is that you must be a bona fide resident, and you must have residency. Your immigration status is not a bar to filing for divorce in New Jersey.
The threshold problem that confronts an alien who wants to file for divorce is his ability to satisfy the legal requirements of having residency. Basically, any alien who wants to file for divorce in New Jersey must establish that he has lived here for 12 consecutive months. Residency can be proven by showing the court your pay stubs, tax return, or utility bills. These documents typically have your New Jersey address listed on it. If you can provide this type of documentation to the court, then you should also be granted jurisdiction to file for divorce even if you are an alien.
2. How do the family courts define what is a New Jersey resident?
The residency requirements in a divorce are that one of the parties must be a bona fide resident for one year immediately before the filing of the divorce complaint. If an alien has resided in New Jersey for 12 consecutive months then the majority of family courts will grant him or her jurisdiction to file for divorce here.
3. What is the leading case on matrimonial jurisdiction for aliens?
Several New Jersey cases have considered whether the non immigrant alien status of a person prevents him or her from obtaining a New Jersey divorce. In the leading case of Gosschalk v. Gosschalk, 48 N.J. Super. 566 (affâ’d, 28 N.J. 73 (1958), the court held that on the basis of substantial evidence, that a Dutch national who resided in New jersey on a visitor’s visa had, in fact satisfied the jurisdiction requirements of N.J.S.A 2A:34-1. Here, the parties were Dutch Nationals, and they were married for five years. They visited the United States on several occasions as temporary visitors. They maintained their primary home in Holland. On one of the visits, the husband informed his wife that he wanted to buy a home in Asbury Park. The wife was not pleased this idea, and she reluctantly came to the United States to live with her husband. She stayed here in the United States for one month, and then she returned to Holland, where she filed for divorce. The husband reciprocated and he filed his own divorce case in New Jersey two years later. The husband never filed an answer to the Holland divorce case.
The New Jersey court entered a default judgment in the husband’s favor. The wife then appealed. The wife contended that the husband did not have jurisdiction to file for divorce in New Jersey because they were both Dutch nationals and because she filed for divorce first in Holland. She argued that Holland had first priority and that the New Jersey should have stayed the New Jersey divorce case pursuant to the doctrine of comity.
The case was appealed, and the Appellate court held that the husband could file for divorce in New Jersey. The Gosschalk court commenced its analysis by examining what constitutes domicile for divorce jurisdiction purposes. It noted that, generally, the two prongs without which no domicile of choice could be established are;
a. physical presence; and
b. the unqualified intention to remain permanently and indefinitely.
The court also defined the essential elements necessary to acquire domicile are as follows:
a. there must be a voluntary change of residence;
b. the resident at the place chose for the domicile must be actual.
In summary, the court found that even though the husband was in the United States as visitor, on a visitor’s visa, it was highly probable that he intended to establish a legal domicile in New Jersey. The court emphasized that a person does not have to be a citizen of the United States to acquire residency or domicile.
4. What is an overview of New Jersey case law on matrimonial jurisdiction for aliens?
Another interesting case is Das v. Das, 254 N.J. 194 (Ch. Div. 1992). Here, two Indian nations came to New Jersey on visitor’s visas and stayed after their expiration, and the wife withdrawn her application for political asylum. She filed for divorce, and the husband filed an application to have the complaint dismissed. The motion was denied. The court found that the wife’s failure to maintain the conditions of her visa was not fatal to her ability to establish a New Jersey domicile. Therefore, the court held that the wife has jurisdiction to file for divorce in New Jersey.