As one of the first lawyers to have a web site on the Internet back when I started my family law and divorce law firm, I have spent the last 20 years representing folks located not only across the United State of America, but internationally as well. As an experienced attorney, I am aware that an individual must live in New Jersey for at least one year prior to the Complaint for Divorce to be filed in the Family Part of the Superior Court of New Jersey. Below, please find a legal analysis of a recent case that discusses how complicated this otherwise straightforward area of New Jersey divorce law.
For a New Jersey Family Part court to hear a divorce case it must first have jurisdiction. Subject-matter jurisdiction ensures convenience and equity for litigants. To file for divorce in New Jersey at least one party of the marriage must be a bona fide resident of this State. Furthermore, the party seeking divorce must be a bona fide resident of this State for the one year proceeding the start of the action. In Appelbaum v. Huff, wife Shira Appelbaum appealed from a December 7, 2012 Family Part order that dismissed her divorce complaint on jurisdictional grounds and forum non conveniens grounds. The parties married in New Jersey in 2007. Soon thereafter, Shira gave birth to their only child in 2008. According to her, in 2007 the couple agreed that they would move to the Washington D.C. area so that Daniel could take a temporary job there. After they moved in to an apartment in Silver Springs, Maryland, Shira started classes at Georgetown University. Once she graduated in 2009, and she began a full-time job in Washington D.C.
According to Shire the marriage began falling apart at the end of 2010. Daniel even began sleeping many nights away from the apartment. On July 23, 2012, Shira filed a complaint for divorce in Middlesex County Family Court. She alleged extreme cruelty, which according to her, began on or about December 10, 2010, and continued from that time through May 1, 2012. She further alleged that she was a bona fide resident of New Jersey “for one year next preceding the time that the cause of action arose, and identified her parent’s home in Edison as her residence.
According to Daniel, the couple lived in Silver Spring from June 2007 until July 2012. As proof, he attached a letter from their Maryland apartment complex dated September 5, 2012. This letter noted that Shira and Daniel were still renting that apartment at that time. He also submitted copies of monthly checks to the apartment complex drawn on Shira’s own bank account dated from April 2012 through July 2012. Daniel also asserted that Shira worked in Washington D.C. until July 2012. As evidence he provided an email sent from Shira’s work email address dated July 27, 2012. He further stated that Shira’s contact New Jersey, until July 2012, had been limited merely to visits with her parents. Moreover, Daniel maintained that their child had attended preschool in Silber Spring from June 21, 2010 until July 2012. As proof he provided a letter from the director of the school which stated that their son “attended continuously from June 2010 until June 2012. . . [and] missed a few days in June and attended part of the month of July.”
Daniel argued that Shira knew he intended to file for divorce in Maryland, and so she filed for divorce in New Jersey in order to beat him to the courthouse, after asking him to postpone his divorce filing to attend mediation. On August 29, 2012, he filed a divorce complaint in Maryland, in which he alleged a twelve-month separation without cohabitation and no reasonable prospect of reconciliation. Daniel then moved to dismiss Shira’s New Jersey complaint for lack of jurisdiction. He argued that Shira hand not been a bona fide resident of New Jersey for at least one year at the time her cause of action arose. In response, Shira filed a cross-motion which sought a preliminary injunction to restrict Daniel from pursuing anu divorce action in any other state.
After oral argument on December 7, 2012, the judge granted Daniel’s motion, and denied Shira’s cross-motion. The judge issued a written amplification of his decision on January 25, 2013 which explained the court’s jurisdictional reach and authority. The judge stated that for the court to have jurisdiction over Shira’s New Jersey complaint, she would have had to have been a bona fide resident for one year at the time her cause of action occurred. The only count in the complaint was for extreme cruelty. This cause of action requires that the last act of extreme cruelty that forms the basis of the cause of action occur at least three months prior to the filing of the complaint. That means that Shira had to be a bona fide resident of New Jersey by April 23, 2011. The evidence presented to the court clearly showed that she was not.
The Family Part judge concluded that it was irrelevant that Shira filed her New Jersey divorce complaint a month earlier, because both parties lived in Maryland, and so did their child. Furthermore, Shira worked in Washington D.C., earned her income there, and paid taxes on that income in Maryland. Shira additionally failed to provide the court with the documents showing the home address she gave her Washington D.C. employer. In the alternative, the judge concluded that New Jersey was an inconvenient forum for the divorce proceedings because pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, New Jersey Statute 2A:34-53 to -95, the child custody proceedings were required to occur in Maryland. This was because Maryland was the home state of the child. Home state means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. The judge noted that the evidence was simply overwhelming that the home state of the child at the start of the divorce action was Maryland.
Shira appealed claimed that there was a material dispute of fact as to where she resided, as she alleged that she resided in New Jersey but commuted to her job in Washington D.C., staying overnight in Daniel’s apartment and sending the child to daycare in Maryland. She further argued that the judge improperly considered allegations that were not established by legally-competent evidence, and that Daniel waived the jurisdictional defense by making a general appearance in New Jersey.
The New Jersey Appellate Division first addressed the issue of subject matter jurisdiction. The family court decided the motion in question as a matter of law without a plenary hearing, so the appellate review was de novo. Thus, the motion court’s legal conclusions were no entitled to any special deference. According the 2013 New Jersey Appellate Division case of Tatham v. Tatham, “the scope of subject matter jurisdiction is governed by the extent to which the Legislature chooses to allow litigants to seek divorce in this State.” As such, the Superior court has jurisdiction of all causes of divorce, dissolution of a civil union, bed and board divorce, and legal separation from a partner when either party is a bona fide resident of this State. Further, the party seeking divorce must be a bona fide resident of this State for the one year proceeding the start of the action. When the ground for divorce is extreme cruelty, N.J.S.A 2A:34-2(c) requires that “no complaint for divorce shall be filed until after three months from the date of the last act of cruelty complain of in the complaint.” In this context, the concept of bona fide resident is equal with domiciliary. A party’s domicile is “established by physical presence coupled with the intention to remain permanently and indefinitely. To establish a domicile for divorce purposes, there must me a voluntary change of residence, not for a temporary or special purpose, but with the present intention of making it one’s home.
The New Jersey Appellate Division found that the factual record supported the trial court’s finding that Shira was not a bona fide New Jersey resident. She paid the rent for the Maryland apartment through July 2012 using checks bearing the apartment’s Maryland address, and she admitted that their child was enrolled in preschool in Maryland through at least parts of July 2012. The appellate panel further rejected Shira’s argument that Daniel waived the jurisdictional defense by making a general appearance in New Jersey. Lack of subject matter jurisdiction is a non-waivable defense that may be raised at any time, even on appeal. The court alternatively dismissed her case under the doctrine of forum non conveniens, and noted in particular that New Jersey was an inconvenient location for the divorce because Maryland is the home state for jurisdiction over the child. The doctrine of forum non conveniens is an equitable doctrine founded on the idea that a court should decline to exercise jurisdiction over a dispute when another jurisdiction would better serve the convenience of the parties and the ends of justice. In New Jersey, the plaintiff’s choice of forum is entitled to preferential treatment, but ultimately such questions are entrusted to the trial court’s sound discretion. In the case of Appelbaum v. Huff, the trial judge’s decision contained a careful analysis of the relevant issues and facts. The judge rightfully concluded that litigating the divorce in New Jersey, while litigating the child custody and parenting issues in Maryland, as required by Uniform Child Custody Jurisdiction and Enforcement Act, would create a highly inconvenient situation that is almost guaranteed to cause problems, while also doubling the costs and expenses to the parties. Furthermore, the factual record indicated that both parties had sufficient financial means to litigate in Maryland, and Shira failed to show it would be a hardship for her to travel to Maryland in connection with this litigation because she claimed that she had previously commuted to Washington D.C. The New Jersey Appellate Division found no mistake in exercise of discretion in the court’s determination that forum non conveniens provided an additional basis for dismissal of Shira’s complaint. For all the above-mentioned reasons, the New Jersey Appellate Division affirmed the decision of the Family Part.
If you find yourself with a problem as to whether you may file for divorce in New Jersey, please do not hesitate to contact my office.