New York Family Law Blog
A divorce proceeding must be initiated in the state where at least one of the parties is domiciled. Not only must one of the parties be domiciled in the state where the divorce proceeding is initiated, the person must have met the minimum residency requirements.
In Weis v. Weis, because of there was a question related to residency requirements, the New York Supreme Court was asked to grant a divorce even though the other spouse had sought and was granted a divorce in another state.
Background
The parties were married in New York, New York, on April 12, 1986. Plaintiff and defendant resided in Brooklyn, New York throughout the marriage. The parties physically separated several years ago prior to the divorce proceedings. One child, Jessica, was born to the marriage, in 1991.
The defendant, Bruce Weiss, commenced an action for divorce in the District Court, Family Division, of Clarke County, Nevada on or about May 20, 2008. In his complaint in the Nevada action, the defendant claimed that he was a bona fide domiciliary of Nevada for more than six weeks prior to the commencement of the action. Around June 25, 2008, the plaintiff found taped to the door of her Brooklyn, New York residence, copies of defendant’s Nevada summons and complaint. The plaintiff did not answer the complaint, nor otherwise make an appearance in the Nevada action. Around August 29, 2008, the plaintiff received in the mail a final decree of divorce entered by the District Court, Family Division, of Clark County, Nevada on July 31, 2008.
In September 2008, the plaintiff filed a complaint in New York seeking a declaration that the Nevada decree of divorce was invalid due to the fact that the defendant was not a bona fide domiciliary of Nevada and did not meet the requirements for divorce decree in Nevada. In fact, the plaintiff claimed that the defendant was still living and working in New York during the relevant six weeks before the defendant filed the divorce action in Nevada.
The plaintiff asserted that a question remained about whether she and the defendant were still husband and wife and about how the couples’ assets should be divided. The defendant made a motion for an order dismissing plaintiff’s complaint for lack of jurisdiction or, in the alternative, changing the venue of the suit to Clark County, Nevada.
The issue before the New York Supreme Court was whether the trial court properly considered the plaintiff’s complaint seeking a divorce even if the defendant was granted a divorce decree in a foreign state, if the plaintiff appropriately alleges the defendant was not a bona fide domiciliary of the foreign state.
Discussion
The New York Supreme Court concluded that a trial court may properly consider a plaintiff’s complaint seeking a divorce even if the defendant was granted a divorce decree in a foreign state if the plaintiff appropriately alleges the defendant was not a bona fide domiciliary of the foreign state.
The defendant argued that the Nevada divorce decree is conclusive because a divorce decree granted within the United States is entitled to full faith and credit under the United States Constitution in every court. Thus, the defendant reasoned, the plaintiff’s complaint should be dismissed in full. The plaintiff counted by asserting that the defendant was not domiciled in Nevada and in fact perpetrated a fraud on the Nevada court to obtain a divorce by claiming that he had lived there in the six weeks prior to filing for divorce.
Contrary to the defendant’s argument, if a divorce decree is issued by a court that does not have jurisdiction over the parties, the decree is invalid. Under both New York law and Nevada law, domicile is determined by actual residence in the state with the intention of making that state his permanent home. Here, the material facts show a dispute as to whether the defendant was a bona fide Nevada resident as required for a divorce in Nevada.
The court referred the issue of the defendant’s domicile to Special Referee Charmaine E. Henderson to determine the status of the divorce proceeding in Nevada based on the facts pleaded by the plaintiff. Since plaintiff maintains that the residence of the defendant in Nevada was fictitious and fraudulent, she has the burden of rebutting the prima facie effect of the Nevada court’s finding of residence. See Williams v North Carolina, 325 US 226, 233-234. Because a material dispute exists, the defendant’s motion seeking the dismissal of the plaintiff’s complaint is denied in its entirety.