New York Family Law Blog
On 18 May 1981, in the hopes of forming a family, appellant husband and his wife got married in Queens, New York. The parties then resided in West Germany until May 1983 when the wife left West Germany and moved to Montgomery, Alabama.
A New York Family Lawyer said the husband has petitioned the court for the dissolution of his marriage and filed it in Okaloosa County, Florida. He alleges that he is currently domiciled in Okaloosa County and has been a resident of Florida for at least six months before filing his petition.
In opposition, the wife moves to dismiss the petition and states that the court lacks jurisdiction over the parties because the husband has not been a physical resident of the State of Florida for at least six months next prior to the filing of the Petition for Dissolution of Marriage.
The lower court dismissed the case for lack of personal jurisdiction.
Was personal jurisdiction acquired to warrant a reversal of the dismissal?
A New York Custody Lawyer said that Florida Statutes require that, in order for one to obtain dissolution of marriage in Florida, one of the parties to the marriage must reside six months in the state before the filing of the petition. The six-month residency requisite has been construed to mean the party filing the proceeding must reside in this state for the six months next preceding the filing of the petition. However, Florida courts have recognized an exception to the statutory residency demand as to members of the military, allowing them to seek divorce in Florida without proving their actual presence in the state during the six-month statutory period prior to the filing of their petitions of dissolution.
The herein court can perceive of no policy rationale excepting only members of the military from the statutory requisite of actual residency for the next six months preceding the filing of a dissolution petition. In our judgment, the residency test demanded for members of the military is no greater than that required for employees of the government who are forced by the demands of their employment to take up temporary residence elsewhere than their primary choice of domicil, and in neither case should a bar be erected once such persons establish a bona fide legal domicil within the state.
The rules provide that the prevailing view is that an extended absence from the divorce state for a period of time in excess of the statutory waiting period will not prevent the plaintiff from being deemed a resident for divorce purposes where it is clear that he has a bona fide legal domicil within the state and that he has not acquired a new one elsewhere. A Nassau County Family Lawyer said this rule is particularly applicable where the domiciliary is a soldier or sailor who is absent from the jurisdiction under government orders, or he is employed by the United States Government and is required to work outside the divorce state.
Moreover, the length of a person’s absence outside the state of his or her legal domicil does not preclude the satisfaction of that state’s residency requirement. A Queens Family Lawyer said persons who hold public office or employment are frequently required to serve at some place far from their legal residence, and to remain there for several years at a time, except for vacations, which they may spend at their legal residence or elsewhere. They do not lose their legal residence or domicil by reason of such absence, if they intend to return.
The herein court cannot accept the assumption that a husband and wife can only maintain different residencies following the disruption of their marriage. It would be ‘completely anachronistic’ to hold that a wife could not obtain a domicile or residency different than that of her husband until the actual physical separation of the parties.
Here, there is no showing that the husband maintained a legal residence anywhere other than in the state of Florida. There is no showing that at any time since 1970, while he was a member of the military, or a civilian employee of the Defense Department, the husband evinced an intention to make any place other than Florida his legal residence.
Accordingly, the court finds no evidence to support, in fact and in law, the lower court’s order of dismissal. Judgment is reversed.
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