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Das v. Das

Decided: January 14, 1992.

VIOLA DAS, PLAINTIFF,
v.
ASIT K. DAS, DEFENDANT



FAMILY PART. MIDDLESEX COUNTY

Wolfson, J.s.c.

Wolfson

WOLFSON, J.S.C.

The novel jurisdictional issue to be decided in this matrimonial action is whether the plaintiff's nonimmigrant alien status precludes her from obtaining a New Jersey divorce.

Plaintiff Viola Das and defendant Asit Das, citizens of India, entered the United States lawfully in March 1990, pursuant to validly issued visitors' visas.*fn1 They immediately took up residence with their son in Jersey City, New Jersey, later moving to their own quarters in that city. Ultimately, they executed a one (1) year lease in a garden apartment complex in New Brunswick in order to be closer to a retail business purchased by them in March 1991. Viola Das continues to reside in New Brunswick.

The parties separated in May 1991. In September, Viola Das initiated divorce proceedings, eventually filing a motion for pendente lite restraints. In response, Asit Das filed a cross motion to dismiss the divorce action based upon his wife's legal inability to establish "bona fide residence" within the meaning of the New Jersey divorce statute.*fn2 Supplemental briefs addressing this issue were filed, and oral arguments were presented to the court.

It is well established that "a bona fide resident" in this context means a "domiciliary." Voss v. Voss, 5 N.J. 402, 406-407, 75 A.2d 889 (1950); Raybin v. Raybin, 179 N.J. Super. 121, 126-127, 430 A.2d 953 (App.Div.1981). The "two requisites without which no domicile of choice can be established" are: (1) physical presence; and (2) a concomitant unqualified intention to remain permanently and indefinitely. Gosschalk v. Gosschalk, 48 N.J. Super. 566, 573, 138 A.2d 774 (App.Div.), aff'd o.b., 28 N.J. 73, 145 A.2d 327 (1958). Once there is physical presence, the key element is the intention to acquire a new domicile, rather than the purpose for making such a change. Gosschalk, supra, 48 N.J. Super. at 573, 138 A.2d 774.

In the present case, the defendant confirmed through his deposition testimony that he and his wife formulated an intention to remain in the United States "indefinitely", subsequent to their arrival here. His wife's similar contention, especially when viewed in conjunction with the objective and undisputed

facts,*fn3 compels the Conclusion that her domicile was and is New Jersey, unless that result has otherwise been precluded by operation of law.

Thus, the question is whether the plaintiff is legally disqualified from establishing domicile in New Jersey, despite her clearly manifested intention to do so. The closest New Jersey case to address the subject, Gosschalk v. Gosschalk, 48 N.J. Super. 566, 138 A.2d 774 (App.Div.), aff'd o.b., 28 N.J. 73, 145 A.2d 327 (1958), is helpful but not dispositive. There, the appellate division, determined that a nonimmigrant alien who held a provisional "treaty trader" visa and who had otherwise established an intention to make New Jersey his domicile by procuring visa extensions and by placing his family on the immigration "quota list", satisfied the jurisdictional prerequisites of N.J.S.A. 2A:34-10. In doing so, however, the court cautioned that:

[T]he only factor which might render such an intention inoperative would arise where a respondent's resolution to make New Jersey his permanent home would make his presence under the provisional visa illegal, so that his presence within the State "in violation of the immigration laws will not be considered as ...


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