The sun. [volume] (New York [N.Y.]) 1833-1916, 1906-05-01
Fictitious Domiciie in Divorce.


We have received a letter from one Of
the counsel in the Haddock divorce cas-
in which he says:
You have overlooked other decisions prevt-
ously made by the Supreme Court In which II has
been distinctly held that unless the State wherein
the decree OF divorce was rendered was the bona
nds domiclle of the plaintiff It was entirely without
Jurisdiction. even though the defendant was previ-
ously served within that state or voluntarily ap.
peared therein. In other words, that in every
case there must be bona hdc domicile OF at least
one OF the parties In order TO confer jurisdiction
on the court. ASpKBwO e. ANDREWS, iss U. s.
II: BILL. Is. BILL. 1s1 o. q. lsH sTREIrwoLT Is.
STBEITwoLY. I1 U. S., 70
1t seemed to me 20 DO wen to cail these decisions
TO your attention. a. otherwise your editorial might
have a misleading erect on popular opinion as to
the validity Of divorces granted In any State other
than the bona nde domicle Of at least ono Of the
parties
Our friend Is entirely mistaken. There
is no danger Of our articles mislead-
ing any one. THE Sun Is very ia
miliar with the three cases of BELL,
STRE1TwoLF and ANDREWS. The Bell
case holds that no valid divorce can be
decreed on constructive service by the
courts Of a State in which neither party
is domiciled. The Streitwolf case APP
proves the Bell case and holds the di-
vorce to be invalid because the husband
had not a domicile in good faith in North
Dakota for ninety days. The Andrews
case holds that the appearance Of both
parties cannot confer jurisdiction where
there is an absence Of domicile in the
State. But we know, and every one
knows, that the ninety days or six months
or one year residence sufficient to satisfy
the statute or the State court Is q
bona fde domicile; it is a fictitious domi-
Gle, although legally unassailable.
The prerequisite or plausible NJ
required by the divorce grist mills is
that there shall be a primo fdcie domicile
or an alleged domicile without any par
ticular insistence as to good faith or
actual residence.
Our editorial can have NO misleading
effect on public opinion, because it is
based on truth and reality. The lawyer
who INDUCES in this special pleading
must be either very inexperienced in
divorce cases or Of a singularly guileless
nature if he really for one moment
imagines that in ninety-nine cases out
OF a hundred the domicile Of the plaintiff,
gained in a foreign State, is not estab-
lished merely and solely for the purpose
Of getting a divorce. That is what we
call "a fictitious domicile" >; it is a domi-
Gle established for the purpose of OBJ
tanning a decree Of divorce and Of getting
rid of the Objectionable party, while
the attendant cavalier, held up the
sleeve of the fair plaintiff, obtains recog-
milton at once upon the granting Of the
judgment.
The ordinary curse Of procedure in
most cases is for the oma who desires
to obtain the divorce to consult some
attorney in this city, while the husband
consults another attorney, and the two
attorneys name representatives in the
Western State. The wife Is informed
that it will be necessary for her to reside
in the foreign State for six months or a
e whichever may be the term Of res
idence prescribed by statute. She then
goes to South Dakota or to some other
favorable State, where there is "the line
of least resistance; she lives there six
months or q year; she alleges in her
complaint that she is a resident Of, for
instance, South Dakota; II examined
on the witness stand she swears that
her domicile is in that State, and this
makes out the primd fdcie prerequi-
site of domicile. The real test, which
can never be applied, because the court
cannot sit in the mind Of the individual,
is whether there is the dnimus mdnendi
or the dnimus non rerertendi, the intention
OF remaining in South Dakota or the
intention of not returning to New York.
Upon the entry of the judgment of di-
vorce the heretofore avowed purpose
Of living permanently in the new State