“Massachusetts Welcomes You” is a sign that greets you as you make your way into the Bay State, regardless of whether you are just passing through or sticking around for a while. In addition to Massachusetts being a tourist destination, many people (myself included) decide to relocate to Massachusetts from lands near and far for a variety of reasons. So what happens if you move to Massachusetts and decide to get divorced? How long do you have to be in Massachusetts before its Probate and Family Court “Welcomes You”?
As we become a more migratory society, issues regarding which state (or even country) has jurisdiction over a divorce have become more common. Based on each state/country having its own laws on the issue, the answer is not always clear as to which jurisdiction is the appropriate one to file a divorce after a recent move or if you are frequently on the move.
Under Massachusetts law, the Probate and Family Court can assert subject matter jurisdiction over a divorce only if: (1) the spouses previously lived together in Massachusetts, and one of them lived here when the cause of the divorce occurred; (2) the plaintiff filing the divorce action has lived in Massachusetts for one year preceding the filing of the divorce (a.k.a. the “one-year residency requirement”) if the cause of the divorce occurred elsewhere; or (3) the plaintiff filing the divorce is domiciled in Massachusetts at the time of the divorce and the cause of the divorce occurred while in Massachusetts, unless it appears the plaintiff moved to Massachusetts for the purpose of obtaining a divorce. It is clear from the statute that Massachusetts (similar to other states) disfavors people moving here for the purpose of seeking a divorce, a term known as “forum shopping.”
As with any legislation, there is a lot to unravel to clarify the full meaning of the key phrases of the relevant statutes and their practical application. For example, what does it mean to prove “residence” or “domicile” within Massachusetts? Outside of the plain meaning of the words themselves, attorneys are guided by case law from the Massachusetts appellate-level courts (Appeals Court and Supreme Judicial Court) for some clarity.
This week, the Massachusetts Appeals Court issued a decision, Rose v. Rose, No. 18-P-59 (Nov. 20, 2019), which clarified the aforementioned “one-year residency requirement.” In Rose, the plaintiff’s wife filed for divorce in the Norfolk Probate and Family Court. Both spouses are international officers for the United Nations (UN) and are assigned to missions all over the world. Both were working internationally on separate UN missions when the husband initially filed for divorce in France. One month later, the wife filed for divorce in Massachusetts, where her parents resided, which is where she considered her home address. The parties never lived together in Massachusetts and the cause of the divorce occurred outside of Massachusetts, so the wife was limited to the “one-year residency requirement,” above, as the only option for Massachusetts to assert subject matter jurisdiction over the case.
After a non-evidentiary hearing, the Massachusetts Court dismissed wife’s complaint for divorce for failing to meet the “one-year residency requirement,” because she was “physically living in Switzerland” when the wife filed her complaint. The wife appealed the dismissal and asserted that she had been a Massachusetts resident since 2011, despite the temporary work assignments abroad.
The detailed Appeals Court decision on the Rose matter noted that the Massachusetts appellate courts have yet to define the parameters of the one-year residency requirement and “[i]t is therefore incumbent upon us to do so now.” After analyzing and drawing from the laws of other states, the Appeals Court decided that the “one-year residency requirement” should be construed to mean that a plaintiff maintains an actual, continuous residence in Massachusetts for twelve consecutive months immediately prior to the commencement of the divorce. The Rose decision contemplates that the actual, continuous residence requirement should be applied reasonably, such that certain temporary absences (i.e. vacations) will not impact the twelve-month countdown as long as a plaintiff has maintained a meaningful physical presence in Massachusetts during the twelve-month period.
“Hello new phrase, ‘actual, continuous residence,’ Massachusetts Welcomes You!” Did you come with instructions? Thankfully, yes. The Appeals Court in Rose discussed that the analysis of whether a plaintiff has maintained an actual, continuous residence in Massachusetts to satisfy the one-year residency requirement is a question of fact that must be determined on a case-by-case basis. According to Rose, some of the factors to prove the plaintiff satisfied the residency requirement are the following:
- Massachusetts driver’s license and automobile registration;
- Purchasing a home, leasing an apartment and paying rent, or having a prior history of residence in Massachusetts;
- Keeping personal property, including household goods and clothing, here;
- Receiving mail, registering to vote, setting up bank accounts, paying taxes in Massachusetts; and, most importantly,
- Evidence of being physically present in Massachusetts during the twelve-month period certainly helps.
The Appeals Court in Rose ultimately vacated the judge’s dismissal of wife’s complaint for divorce and sent the case back for further proceedings to determine whether the wife has met the newly articulated standard of maintaining an actual, continuous residence in Massachusetts for a year.
To summarize, if the cause of the divorce happened outside of Massachusetts, but you would prefer to file for divorce in Massachusetts, you will want to settle in and mostly stick around here for at least a year before you head into Court. A year may seem like a long time, but it ensures that you will at least get to enjoy the Fall season in Massachusetts, which is truly a great time of year to be here. “You’re welcome, Massachusetts.”
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