Part One: The Issue of Domicile in Non-Custodial Divorce Cases – Is New Jersey still my home?

The New Jersey State motto is “Liberty and Prosperity.” Therefore, it should come as no surprise that New Jersey is home to the third largest percentage of millionaires in the United States. Over 7% or approximately 235,000 of New Jersey citizens are millionaires.  (See Barron’s millionaire-ranking)  Accordingly, many New Jersey citizens find themselves traveling around the country and globe for extended periods of time for both business and pleasure. This mobility can result in New Jersey residents finding themselves ensnared in divorce litigation while residing temporarily in a foreign state or country  and the question may arise as to whether New Jersey has jurisdiction to enter a Judgment of Divorce. A multi-jurisdictional divorce battle can be costly and frustrating.  Fortunately, New Jersey courts have recognized that when it comes to jurisdiction, a New Jersey resident’s roots can run deep.

Pursuant to this State’s statute, N.J.S.A. 2A:34-10, the State of New Jersey has jurisdiction to enter a Judgment of Divorce “when, at the time the cause of action arose, either party was a bona fide resident of this State, and has continued so to be down to the time of the commencement of this action.” The terms “bona fide resident” and “domicile” are “synonymous” for purposes of this statute. Voss v. Voss, 5 N.J. 402, 406-07 (1950). A person’s domicile is defined as “the place where he has his true, fixed, permanent home and principal establishment, and to which whenever he is absent, he has the intention of returning, and from which he has no present intention of moving.” Kurilla v. Roth, 132 N.J.L 213, 215 (S. Ct. 1944). Every person has a domicile, and more importantly, a person is presumed to be domiciled in his or her domiciliary state until a new domicile is acquired. Lyon v. Glaser, 60 N.J. 259, 277 (1972).

The general rule is that for the establishment of a new domicile an individual needs: (1) physical presence and (2) the intention to remain at the new domicile indefinitely. Gosschalk v. Gosschalk, 48 N.J. Super. 566, 573 (App. Div.), aff’d, 28 N.J. 73 (1958). The Court in Gosschalk determined that in matters involving a change in the establishment of a domicile, particularly in divorce matters, the new domicile must not be temporary or for a special purpose. Id. In Gosschalk, the court took up the issue of what kind of acts would point to the intent to make New Jersey someone’s domicile. Id. at 577. The Court reasoned that domicile is where a party makes his permanent home and “the best and most trustworthy evidence is to be found in plaintiff’s acts.” Id. citing Firth v. Firth, 50 N.J. Eq. 137, 142 (Ch. 1892). Mr. Gosschalk was employed as an investor who traveled extensively for business. Id. Some of the acts that the court cited as indicative of plaintiff’s intent to remain in New Jersey while he worked abroad were the plaintiff’s attempt to purchase a home in New Jersey and his extensive business contacts within the state of New Jersey. Id. The court held that Mr. Gosschalk’s actions met the residency requirements of the New Jersey Divorce Act and upheld his Judgment of Divorce. Id. at 580.

Moreover, three elements may be considered when determining domicile: 1) an actual and physical abode in the state; 2) an intention to make a home permanently or at least indefinitely in the state; and 3) an intention to abandon a previous domicile. In the Matter of Unanue, 255 N.J. Super. 362, 377 (Law Div.1991). In Unanue, Prudencio Unanue was domiciled in New Jersey for all his life until he left for Puerto Rico in 1970 and remained there until his death in 1976. Id. at 371-372. The Court found that even though he never returned to New Jersey he was still a domiciliary of the state of New Jersey up until his death in 1976. Id. at 294. The Court found that the actions of Prudencio established that it was never his intent to permanently make Puerto Rico his home. Id. at 371-372. The Court looked to the fact that Prudencio and his wife never bought a residence in Puerto Rico, he remained licensed to drive in New Jersey, he remained registered to vote in New Jersey and that the married couple spoke with friends about their intent to return to New Jersey. Id.

The law of New Jersey also indicates that a temporary residence lacks “the elements of permanency, continuity and kinship with the physical, social and political attributes which inhere in a home.” Miller v. U.S. Fidelity and Guaranty Co., 127 N.J. Super. 37, 42 (App. Div. 1974). The court went on to state that, “[i]ntention adequately manifested is the catalyst which converts a residence from a mere place in which a person lives to a domicile.” Id.

New Jersey courts will look at the evidence submitted by the parties and determine whether the actions of the parties established that it is their manifest intention to remain domiciled in the State of New Jersey after moving abroad for business. Since jurisdiction can be a complex legal matter, an attorney experienced in handling matters involving a jurisdictional dispute between New Jersey and any other jurisdiction, such as James P. Yudes, A Professional Corporation, may be able to help you.