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On the Street Where You Never Lived:
The Fallacy of the Quickie Divorce
Often times when a decision to divorce is made, a party wants the matter settled immediately. However, in North Carolina, one of the parties must be a resident of North Carolina for a minimum of six months directly preceding the filing of the action, AND the parties must be separated for one year. (NCGS 50-6) Separation begins when the parties live separate and apart and at least one of the parties has the intent of not continuing the marital relationship. Because of this one year minimum time, many people consider “quickie” foreign divorces. A divorce which is valid in the state in which it is granted, is valid in North Carolina under the full faith and credit clause of the United States Constitution. However, a divorce may be attacked if the court was without the jurisdiction to enter the judgment. Jurisdiction is the power of the court to enter an order regarding a certain matter for the parties standing before it. The court must have BOTH the power to adjudicate the type of matter (ie divorce), known as subject matter jurisdiction, AND the power to adjudicate the matter for these particular parties, known as personal jurisdiction. In North Carolina the only ground for divorce, other than incurable insanity, is one year separation. In other states the grounds range from irreconcilable differences, to separation for a period of months or years, to fault grounds for which immediate relief may be granted. Since many states and foreign countries allow immediate divorce for many reasons, people consider traveling to the other jurisdiction to obtain a divorce and then return with the proper judgment in tow to North Carolina. In most cases such a judgment is void because there was not personal jurisdiction over the parties. The court had the power to grant divorces to its citizens, but that power did not reach to persons who were “just visiting.” The amount of time a party must reside in a state before the court will allow him/her to have the matter heard differs from state to state, the shortest time (no statutory provision), is in Alaska and Washington; and the longest time (12 months) is in eleven states. Nevada, once considered the divorce capital of the United States requires 60 days of residence. The type of residence referred to in the divorce statutes is what is usually called “domicile.” While people can have more than one residence, a person can have only one domicile. In a case regarding residence for voting, the Supreme Court of North Carolina has held that, “ ...a person has domicile ...at a place if he (1) has abandoned his prior home (2) has a present intention to make that place his home, and (3) has no intention presently to leave that place.” Lloyd v Babb, 296 N.C. 416, 251 SE2d 843 (1979) In order for a party to be able to go to a different state or country to file for divorce, that person would have to establish domicile in the new state. For example, if an adult leaves home to take a temporary assignment in another state, but always intends to return to his home, the domicile remains the state where the permanent home is. If, on the other hand, the person leaves home to take a new job and never intends to return to the original home, the location of his new home is the new domicile. In a divorce situation, a party would have to actually move to a new place without the intent to return to the prior place. A second plan parties have in order to hasten a divorce is to go to another country. The North Carolina Supreme Court, as well as the courts of most other states, do not recognize the validity of foreign divorces by US citizens who are not permanently residing in the foreign country. “The full faith and credit clause has no application to foreign judgments. Recognition of foreign decrees by a State of the Union is governed by principles of comity. Consequently, based on notions of sovereignty, comity can be applied without regard to a foreign country's jurisdictional basis for entering a judgment. More often than not, however, "many of the American states are likely to refuse recognition [to deny comity] to a divorce decree of a foreign country not founded on" a sufficient jurisdictional basis. 1 R. Lee, North Carolina Family Law§ 104, at 488 (4th ed. 1979). ....Since the power of a State of the Union to grant a divorce decree is dependent upon the existence of a sufficient jurisdictional basis--domicile or such a relationship between the parties of the State as would make it reasonable for the State to dissolve the marriage--it follows that the validity of a foreign divorce decree should depend upon an adequate jurisdictional basis. ....The great weight of authority in this country is that divorces granted in foreign countries to persons who are domiciliaries of the United States are not valid and enforceable. See Annot., 13 A.L.R.3d 1419 (1967).”Mayer v Mayer 66 N.C.App. 522, 311 S.E.2d 659. The Mayer case is instructional in other ways as well. Mr. Mayer helped his wife obtain a divorce from her first husband. He encouraged her and financed the trip to the Dominican Republic. When the Mayers separated, Mr. Mayer tried to claim that his marriage to Doris was bigamous because her Dominican Republic divorce was invalid. The court agreed with Mr. Mayer that the divorce was invalid, but then held that because he had actively participated in helping Mrs. Mayer obtain the divorce, he could not now assert its invalidity. If you have obtained a divorce in a foreign country, contact an attorney at once to determine the validity of that divorce. You may need to file for divorce in the state of your present residence. If you have remarried in reliance on a foreign divorce, see an attorney at once. Since many rights arise from a marriage, not just rights to distribution of property on divorce, you need to make certain that your marriage is valid. |
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Copyright © 2005 Bender Law Offices P.C., All Rights
Reserved. |
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6608-204 Six Forks Road . Raleigh, NC 27615 . USA |
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Phone: 919-870-9600 . Fax: 919-847-2473 |
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