Divorce mill

Divorce mill is a term used for a jurisdiction that is typically used for divorces by non-residents and/or used to obtain a divorce quickly and/or allow for contested divorces quickly and with little or no compensation to the other spouse. With the seven day stay now required in Guam, and the likelihood of the illegitimacy of contested divorces in other jurisdictions that don't observe due process, there really is little justification for the term "divorce mill", except for the quick uncontested divorces provided in the other countries mentioned, but all require at least an overnight stay, and with both spouses consenting to the divorce whether the term is valid is individual opinion.

There are three countries, one US territory, and one US state that could be regarded in this sense. Most of these jurisdictions also allow for "irreconcilable differences" as a cause for divorce, something that is not possible in some of the world including many US States (such as New York) and thus another reason people would get a divorce from one of these jurisdictions. A divorce based on "irreconcilable differences" is generally the only way to obtain a no-fault divorce without carrying out a one year legal separation agreement to be able to obtain a divorce, and is not available in many states.

Contents

Famous divorce mills

These jurisdictions include (but are not limited to):

Nevada

The State of Nevada is commonly used for a few reasons. It only requires a 6 week stay to meet the residency requirements, the lowest in the United States. Nevada allows for irreconcilable differences as a grounds for divorce. One major reason this attracts people is it allows for an easy bypassing of the mandatory 50/50 split in some community property states, most notably the adjoining State of California.

Guam

Guam had (and still has some) very attractive reasons for obtaining an uncontested divorce there - reasons that make (or made) it a likely candidate for the title "divorce mill" - a title branded 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 Southeast Asia, a trip there can be very expensive and may not be a viable alternative for many Americans.

Legality

Domicile

In United States law, the basis of subject-matter jurisdiction in divorce is domicile. Domicile is the place were 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 collateral attack on sister state, territory, and District of Columbia divorces

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 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 collateral attack on divorces obtained in a foreign country

Where a divorce obtained in another country is collaterally attacked 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.



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