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MATRIMONIAL JURISDICTION FOR ALIENS
By Catharine M. Venzon, Esquire
Many legal practitioners overlook the legal services that may be rendered to
aliens in matrimonial situations. For purposes of this discussion, an alien is a
non-citizen who is physically present in the U.S. without regard to his or her
immigration status. Such alien may be here lawfully or unlawfully. Nationally,
there are millions of aliens. These aliens can now have access to New York
State Courts for matrimonial actions.
The threshold problem confronting aliens desiring to pursue a matrimonial action
in New York State is the ability to satisfy the term "residence," as set forth in
Domestic Relations Law Sections 230 and 231, in order to enable the Court to
obtain jurisdiction. When proper jurisdiction is found to exist, the defendant can
be served anywhere in the world, pursuant to CPLR Sections 301 and 302.
Traditionally, the term "residence" was equated with "domicile," incorporating within its meaning
the intention to maintain a permanent home in the particular jurisdiction. This requisite intent of
permanency conflicted with the temporary status of many aliens. It was questionable whether an
alien on a temporary visa could, at the same time, possess the requisite intent to satisfy the
requirements of DRL Sections 230 and 231.
In Langlais v. Langalis, 90 Misc.2d 20, 393 N.Y.S.2d 292 (1997), the
Court addressed this issue and the term "residence" was interpreted to mean,
simply, "dwelling," regardless of future intent. The word "residence" in DRL
Section 230 is not to be read as "domicile." The Courts need not look to the
future intent of the parties. This more expansive interpretation has enlarged the
jurisdiction of our Courts, thereby permitting aliens to maintain matrimonial
actions and exercise their rights to our Courts.
New Your Courts now consider immigration status as only one factor among many when
evaluating jurisdiction. They explore the various relationships between the parties and the State,
including but not limited to the marital residence, personal interests and marital affairs of the
parties, even when residence and perhaps "domicile" remain in another country.
DePena v. DePena, 31 AD 2d 415, 298 N.Y.S. 2d 199 (1969).
Many of these issues were directly addressed in the case of Coran v. Coran, 84 Misc.2d
335, 375 N.Y.S. 2d 797 (Sup. Ct. Kings County, 1975), wherein the Court held that pursuant to
DRL 230 and 231, if a married woman dwells within the state when she commences an action for
divorce, she is deemed a resident thereof, providing the statutory jurisdiction requirements are
met. In that case, the cause of action arose while the couple resided in the state. The wife, after
the marriage, obtained a visa of her own rather than as her husband's dependent. The Court
stated that when people marry, they acquire a matrimonial domicile, and that domicile is the place
where the parties live together as husband and wife, with the intention of making that their fixed
and permanent home. The concept of "residence" satisfied "domicile" as used in DRL 231.
Actually "domicile," under 231 is being construed to mean "residence," under common law
construction. This the fact that a person is an alien does not bar him or her, as a matter of law,
from acquiring a domicile in New York State for the purpose of maintaining an action for divorce.
There are many matrimonial situations in which New York Courts have extended jurisdiction to
aliens. Certain factual patterns frequently occur in which lawyers with an awareness that aliens
can have access to New York Courts can render legal services. This writer has handled several
such situations in Erie County where the Court has extended jurisdiction to aliens.
Another common problem frequently facing divorced aliens, and who marry in the United States,
is that the Immigration Service may not recognize that person's prior divorce. In those situations,
the lawyer can institute a new divorce action in the State of New York, thereby curing the alleged
defect. Also, in situations where both spouses are in the United States as aliens and matrimonial
difficulties arise, New York is the proper forum for a divorce action if the jurisdictional statutory requirements are met.
To conclude, aliens do have access to this state's courts, since alien status does not necessarily
impute a lack of sufficient ties to confer jurisdiction. These aliens can have their matrimonial
needs entertained without the need to travel to their former homelands. The term "residence"
under the Domestic Relations Law has a more expanded meaning than it had in the past, and
should not be overlooked when dealing with aliens such as students, temporary workers or even illegal aliens.
ABOUT THE AUTHOR
Ms. Venzon graduated from the University of Buffalo Law School in 1982 and was admitted to the New York State Bar on February 15, 1983,
and admitted to the Federal District Court for the Western District of New York in 1985 and the District of Columbia in 1986.
She has participated as a guest speaker at a recent Appellate Division Training Seminar.
In addition, Ms. Venzon has appeared on public radio to discuss child support collection and other related issues.
Ms. Venzon established the law firm in 1984.
She can be contacted by phone at (716) 854-7888 or or Visit Web Site
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