New Appeals Court Decision Clarifies Residency Requirement For Filing For Divorce

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In Massachusetts, the durational residency requirement for a plaintiff to file for divorce is one year G.L. c. 208, § 5 (meaning, one must be a Massachusetts resident for a year before Massachusetts has jurisdiction over their divorce), but until recently, appellate courts had yet to define the parameters of that one-year residency requirement. Earlier this month, the Massachusetts Appeals Court provided clarification in its decision in Rose v. Rose.

In that case, the parties were both international officers for the United Nations. The wife was a U.S. and Canadian citizen and the husband was a French citizen. They married in New York in 2011. At that time, the wife lived in New York while the husband lived in Haiti.

Shortly after the wedding, the husband moved to Lebanon for a mission. The wife then moved to her parent's home in Holbrook, MA before joining her husband in Lebanon in December of 2011. The parties lived together in Lebanon for about two years before the husband was reassigned to Mali and the wife was reassigned to Syria. During that time, the parties spent a total of 24 days together in Holbrook during their breaks. In April of 2017, the wife briefly returned to her parents' home in Holbrook before accepting a new assignment in Switzerland at the end of that month.

On April 25, 2017, the husband filed for divorce in his native country, France. On May 26, 2017, the wife filed for divorce in Massachusetts. The wife listed her parents' Holbrook home as her address on her divorce complaint.

The husband filed a motion to dismiss the wife's divorce complaint. The Probate and Family Court judge dismissed the wife's complaint following a non-evidentiary hearing, concluding that the wife failed to meet the one-year residency requirement because she was physically living in Switzerland at the time of filing. The wife appealed.

On appeal, the Court determined that the one-year residency requirement should be construed as requiring a plaintiff in a divorce action to maintain an actual, continuous residence in Massachusetts for a period of twelve consecutive months immediately prior to the commencement of the divorce action. The Court stated that such a requirement ensures that a plaintiff is sufficiently attached to the Commonwealth and helps to avoid Massachusetts becoming involved in matters in which another state has a paramount interest. The Court added that this requirement should be applied reasonably and that certain temporary absences will be permitted as long as the plaintiff maintains a meaningful presence in Massachusetts during the twelve-month period. Whether a plaintiff satisfied the residency requirement is a factual determination that should be decided on a case-by-case basis.

The Court vacated the judgment and remanded the matter to the Probate and Family Court for an evidentiary hearing and findings of fact to determine whether the wife satisfied the residency requirement in light of this new decision.

Although not relevant to Rose v. Rose, it is worth noting that if a plaintiff cannot meet Massachusetts' one-year durational residency requirement, he or she may still be able to file for divorce in Massachusetts. The plaintiff may be able to meet the alternative jurisdictional requirement of G.L. c. 208, § 5 by proving that he or she was domiciled in Massachusetts at the time of the commencement of the divorce action and that the cause for divorce occurred within Massachusetts.

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