Divorce mill is a term used for a jurisdiction that is typically used by non-residents to obtain a divorce quickly. Relocating temporarily to another jurisdiction to obtain a divorce is sometimes referred to as migratory divorce.[1]

Legality

Domicile

In United States law, the basis of subject-matter jurisdiction in divorce is domicile. Domicile is the place where a person resides with the intent to permanently or at least indefinitely remain. In colloquial terms, it is 'home.' A natural person (i.e. not a corporation), may only have one domicile at a time. Courts within the United States apply the law of domicile in cases where the divorce was obtained in a US state, territory, the District of Columbia, or a foreign country.

Basis for challenge of divorce by sister state, territory, or D.C.

The difference between an ex-parte divorce and a bilateral is critical to determining whether a divorce granted by state A (e.g. Nevada) can be collaterally attacked (challenged) as invalid in state B (e.g. North Carolina).

Where divorce is ex-parte, only one party to marriage appears in the divorcing court. Under Williams v. North Carolina, 325 U.S. 226 (1945), the other spouse can collaterally attack the validity of the ex-parte divorce in another state on grounds that the state granting the divorce didn't have jurisdiction. This involves arguing that the spouse seeking the divorce in that state was not domiciled in that state.

Where the divorce is bilateral, both parties appear in the divorcing court. Even a special appearance by the defendant spouse is sufficient. Sherrer v. Sherrer, 334 U.S. 343 (1948) bars collateral attack on these divorces because the parties could have argued the issue of domicile (and hence jurisdiction) in the divorcing state. When the issue is brought before the court of the other state, the full faith and credit clause (Article 4, Section 1 of the United States Constitution) requires that state to respect the divorcing court's decision. In effect, the determination made in the divorcing state is res judicata.

Where that decree was issued in the District of Columbia or a United States territory (e.g. United States Virgin Islands), full faith and credit is applicable via a federal statute, 28 U.S.C. 1738, but not the federal constitution.

Basis for challenge of divorce obtained in a foreign country

Where a divorce obtained in another country is collaterally attacked (challenged) in a court within the United States, full faith and credit is not an issue. Instead, the court may examine the issue of domicile under the principles of comity.

Examples

Locations became divorce mills by combining liberal divorce laws with short residency requirements. The first U.S. state to be labeled a divorce mill was Indiana in the 1850s, which had lenient divorce laws at the time. Migrants were easily able to establish temporary residence. The state passed stricter divorce laws in 1873.[2]

In the late 19th century, Sioux Falls, South Dakota was a popular divorce mill as it only required 90 days of residency, earning it the nickname of the "Divorce Colony" in news media of the time. South Dakota extended the residency requirement to one year in 1908.[3]

Migratory divorce became a source of revenue in Nevada, which used legislation to maintain its role as a popular divorce mill. By 1931, Nevada had decreased its residency requirement to six weeks.[2]

Guam had (and still has some) very attractive reasons for obtaining an uncontested divorce there, and has been championed as a divorce mill by many of its own politicians in a successful attempt to change the law.

Because Guam is a territory of the United States, its courts are United States jurisdictional courts and the divorces it issues are valid in all of the states in the U.S. Prior to January 1, 2006, Guam allowed for an uncontested divorce without either spouse visiting the territory at all - one of the few places if not the only that allowed this. After being charged as a "divorce mill", an agreement was made by the politicians of the territory with the lawyers and other lobbyists who did not want to change the law, to require a seven-day stay in Guam (as opposed to the much longer ones proposed by the legislators) to obtain a divorce. Guam allows for "irreconcilable differences" as a cause for divorce, and Guam is much quicker to award a finalized divorce than many U.S. states, taking a few weeks at most. Before the law was changed, it was a very attractive alternative for many Americans, as it was also quite affordable. However, with the seven-day stay requirement and its location in Micronesia, a trip there can be very expensive and may not be a viable alternative for many Americans.

Other jurisdictions known as divorce mills include:

See also

References

  1. ↑ Parkman, A.M. (2000). Good Intentions Gone Awry: No-fault Divorce and the American Family. Rowman & Littlefield. p. 23. ISBN 978-0-8476-9869-1. Retrieved December 18, 2023.
  2. 1 2 Cherlin, Andrew J. (2009). The Marriage-Go-Round. Alfred A. Knopf. pp. 70–71. ISBN 9780307266897.
  3. ↑ Kindy, Dave (July 3, 2022). "When divorce was widely banned, desperate women went to South Dakota". The Washington Post.
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