In this is case, the out-of-state spouse will file a motion to dismiss alleging that Massachusetts does not have subject matter jurisdiction over the divorce.
The jurisdiction question in these cases is determined by the Massachusetts Divorce Domicile Statutes, G.L. c. 208, sections 4 and 5.
Rule: a Plaintiff Must Reside in Massachusetts for One Year before Filing for Divorce
The statutes must be read together to understand what a plaintiff needs to show to gain divorce jurisdiction in the Massachusetts Family Court system. The general rule, is that, if the parties never lived together as husband and wife in the Commonwealth, then neither can bring a divorce action here.
This rule gets has two exceptions:
Section 5 provides that a divorce plaintiff must have been domiciled in Massachusetts for at least a year before filing for a divorce or if the divorce plaintiff is domiciled in Massachusetts at the time of the filing and the cause of the divorce occurred within the Commonwealth, then the plaintiff can file for divorce in Massachusetts, regardless of how long the plaintiff has lived in Massachusetts.
This section also prohibits parties from moving to Massachusetts for the purpose of obtaining a divorce.
Domicile vs. Residency:
Domicile is defined as the place of one's actual residence where one has the intention to remain permanently or for an indefinite time and without any certain purpose to return to a former place of abode.
In determining whether a divorce plaintiff has established domicile, Massachusetts judges consider numerous factors, and one of these factor is the length of residency. Other factors include: whether the plaintiff has a Massachusetts driver's license and automobile registration; whether he or she has purchased a home or has leased an apartment in the Commonwealth; whether any children have been brought to live in Massachusetts; and whether personal property, including household goods, has been brought here. Judges examining domicile are looking for signs of permanency.
Timing is Everything: Did the Irretrievable Breakdown Take Place After Domicile was Established in MA?
Because Massachusetts is a "no-fault" divorce state it is possible for a married couple to separate in one state, followed by one party temporarily moving Massachusetts, and this party then becoming domiciled in Massachusetts by electing to stay permanently, followed by only then realizing that the marriage is irretrievably broken down. If this precise sequence is followed, the party residing in Massachusetts can file his or her complaint for divorce without waiting a full year.
The Massachusetts Supreme Judicial Court has ruled that it is sufficient that when a party decides that their marriage is over and there is no hope of reconciliation, the court will grant a divorce. But parties should be warned that if there is evidence that a party intended to obtain a Massachusetts divorce before initiating the move then a Massachusetts court will not exercise jurisdiction before the one year mark.
Under the provisions of the Massachusetts Divorce Domicile Statutes, a person can move to Massachusetts and establish domicile in a matter of weeks, then, after a brief but measurable pause, determine that his/her marriage is over and then properly file for a divorce in Massachusetts against a non-resident spouse. Sound complicated? That is because it is.
If this scenario sounds familiar, contact the Law Offices of Renee Lazar either through email or telephone 978-844-4095 to schedule a FREE one hour no obligation consultation.