Case Update (18 June 2024): In re. Marriage of Quijada and Dominguez; a spouse’s current nonimmigrant visa does not preclude the spouse from having the requisite domiciliary intent to pursue a divorce
The parties are spouses who moved from Mexico to Arizona on temporary visas. The Husband held a TN visa, while the Wife held a TD visa. TN and TD visa holders are “nonimmigrants” who “have a residence in a foreign country which they have no intention of abandoning who are visiting the United States temporarily for business.” Wife’s TD visa expired in March 2020. In December 2020, she began seeking lawful permanent residence, and her application was pending at the time of the August 2022 trial at issue here. In November 2020, the Husband filed for dissolution in Mexico, but it was dismissed for lack of jurisdiction. The couple last lived as married in Arizona, which is where they separated. Wife continues residing in Arizona, but Husband moved to Virginia, and continues holding his TN visa, but refuses to renew Wife’s TD visa. Wife filed for divorce in Arizona in May 2022. The Husband sought to dismiss this divorce petition for lack of jurisdiction.
Domicile is a key element of jurisdiction of a U.S. state court to divorce spouses. Typically at least one spouse must be domiciled in a state in order to seek a divorce. (See Williams v. North Carolina). Husband argued that because Wife was in the United States on a TD visa, her domicile remained Mexico, and she was precluded from “intending to remain in the state indefinitely.” The trial court found that the Wife intended to remain in Arizona indefinitely, but granted the Husband’s motion to dismiss, because federal law related to her TD visa precluded her from establishing domicile in the United States. The Arizona Court of Appeals, however, reversed. It concluded that the Wife’s TD visa precluded her from establishing a U.S. domicile, absent an adjustment in status, but because she had begun seeking lawful PR status, she had a subjective domiciliary intent to be in Arizona. In other words, “the court found federal immigration law did not preempt Arizona jurisdiction over the dissolution proceeding.”
The Arizona Supreme Court was then asked to determine whether federal immigration law divests Arizona courts of jurisdiction over a marital dissolution where a visa holder’s visa has expired. It agreed with the Court of Appeals that “there is ‘no binding federal law concluding that Congress has created - or even has the power to create - a uniform regulatory scheme governing domicile in state-law divorce proceedings.’”
Arizona divorce jurisdiction requires that one of the spouses be domiciled in Arizona for 90 days prior to the filing of the divorce petition. Domicile is a two prong test: (1) physical presence, and (2) an intent to abandon the former domicile and remain in Arizona for an indefinite period of time. Domiciliary intent is a question of fact, not a legal determination. The Husband in this case argued that federal immigration law prevented the Wife from “forming the subjective intent to stay indefinitely in Arizona.” He argued that a TD visa is “predicated upon an intent not to remain in the United States and makes her ineligible to adjust her immigration status, she cannot legally evidence an intent to establish Arizona domicile.” While Congress has plenary authority over immigration, “the field of domestic relations ‘has long been regarded as a virtually exclusive province of the States.” The federal statutes do not expressly pre-empt the state statute here. In fact, as the Arizona Supreme Court notes, “it is not even clear that the relevant immigration laws address domiciliary intent outside of the immigration context at all.”
The Husband argued, primarily, that it is impossible for the Wife to comply with federal law, which requires her to not have an intent to remain in the USA, simultaneously with Arizona divorce law, which requires her to have such an intent. Here, the court noted “Arizona determines domicile based on subjective intent and conduct, not on a detailed and complex legal determination of a person’s immigration status.” Also, here, the Wife sought a change in her immigration status, applying for legal permanent residency, evidencing her intent to remain in Arizona. The Husband acknowledged, at trial, that if the couple were granted a divorce, the Wife’s immigration status and her deportability is not affected, at all.
Compare this case to the Virginia Court of Appeals case of Adoteye v. Adoteye (the jurisdiction where the Husband in this Arizona case now resides). The Adoteyes were G-4 nonimmigrant visa holders residing in Virginia from Ghana for work. When the Wife in the Virginia case sought a divorce, the trial judge dismissed it for lack of jurisdiction, and the Virginia Court of Appeals upheld. Of course, in the Adoteye case, the resident spouse of Virginia was not in the process of transferring their nonimmigrant visa to immigrant status.
