How to Dismiss a Complaint for Divorce

| Jul 6, 2015 | Divorce |

The domicile statute in Massachusetts can be surprisingly confusing, especially when couples often own multiple homes, live in separate cities for professional reasons, or have recently moved to Massachusetts. All of these situations are governed by M.G.L. c. 208, § 4 and the “exceptions” to the domicile statute contained in § 5.

Subject to certain exceptions, § 4 precludes a plaintiff from filing a divorce complaint in Massachusetts in the following situations: (1) if the couple has “never lived together as husband and wife” in Massachusetts, or (2) if the “cause” (i.e., the irretrievable breakdown) occurred in another jurisdiction (unless the parties had lived together as husband and wife in Massachusetts and one of them lived in Massachusetts at the time the cause occurred).

Nevertheless, the plaintiff could still file a complaint for divorce in Massachusetts if one of the following two exceptions apply, which are stated in § 5: (1) the plaintiff lived in Massachusetts for one year before filing the divorce action, if the cause occurred in another jurisdiction; or (2) the plaintiff was domiciled in Massachusetts at the time they filed the complaint for divorce and the cause occurred in Massachusetts. Massachusetts courts will never exercise jurisdiction, however, if the plaintiff moved to Massachusetts for the purpose of obtaining a divorce.

It is important for the plaintiff to draft their complaint for divorce carefully because certain dates, as well as the location of the irretrievable breakdown, are crucial in the determination of whether jurisdiction exists. For a defendant filing a motion to dismiss the complaint for divorce, it is important to argue that the plaintiff does not fall within either of the exceptions (such as disproving the length of time the plaintiff has lived in Massachusetts, the plaintiff’s domicile on the date they filed the complaint for divorce, or that the cause occurred in Massachusetts). If possible, the defendant should also argue that the plaintiff moved to Massachusetts for the purpose of obtaining a divorce, which, if found by the court, would prevent the court from exercising jurisdiction in any situation.

Contact the Law Offices of Renee Lazar either by email or telephone at 978-844-4095 should you have concerns whether Massachusetts has jurisdiction to hear your case.

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