Friday, January 05, 2007

Foreigner in U.S. on Visitor’s Visa Does Not Fulfill Nevada’s Divorce Residency Requirement

A Canadian wife who had lived in Nevada for 3½ years on a visitor’s visa could not get divorced in Nevada. So held the Nevada Supreme Court (Rozsnyai v. Svacek, 272 Neb. 567 (Nov. 2006)).

Nevada law requires that either spouse have at least one year’s genuine residency instate in order for Nevada to have divorce jurisdiction. The Court ruled that where both parties were Canadian citizens and the only party to have resided in Nebraska did so by reason of a visitor's visa, the normal inference that residency for more than one year residency was with the requisite intention to make Nebraska a permanent home, absent a showing that the residency was a sham and not bona fide, was negated and specific proof of intention was required.

Neb. Rev. Stat. § 42-349 (Reissue 2004) provides that in order to maintain an action for divorce in Nebraska, one of the parties must have had "actual residence in this state with a bona fide intention of making this state his or her permanent home for at least one year prior to the filing of the complaint." The plaintiff testified that she had lived in Nebraska for 3½ years at the time of trial. However, “A nonimmigrant alien authorized to reside in this country on a visitor's visa does so on a temporary basis and on the condition that he or she is not abandoning his or her foreign residence. 8 U.S.C. § 1101(a)(15)(B); 8 C.F.R. § 214.2(b) (2006). The residency restrictions placed on a nonimmigrant alien residing on a visitor's visa negates the inference that a nonimmigrant alien intends to reside in Nebraska on a permanent basis merely because he or she has resided in this state for more than 1 year. Thus, in the instant case, the inference created by Rozsnyai's testimony that she has lived in Nebraska since 2001 was negated by the fact that she has done so on a visitor's visa.” The Court dismissed the case.

The Court did, however, point out that there might be instances where a nonimmigrant alien is able to establish an intention to reside in a state permanently by offering proof of that intent apart from his or her presence in that state. See, e.g., Alves v. Alves, 262 A.2d 111 (D.C. App. 1970) (holding husband established domicile for purposes of obtaining divorce in that jurisdiction, despite immigration status); Weber v. Weber, 929 So. 2d 1165 (Fla. App. 2006) (holding nonimmigration status does not bar individual's right to establish residency for purposes of obtaining dissolution of marriage in that state and citing Perez v. Perez, 164 So. 2d 561 (Fla. App. 1964), for proposition that alien's nonpermanent immigration status is factor in determining issue of domiciliary intent); Bustamante v. Bustamante, 645 P.2d 40 (Utah 1982) (noting nonimmigrating aliens may form requisite intent to establish permanent residence for purpose of divorce).