Carlos is a citizen of Brazil. He and his wife Maria, who is also a citizen of Brazil, have lived and worked in the District of Columbia for the last ten years, and both are U.S. permanent residents (“green card” holders) through their employment. Carlos and Maria both like Washington D.C. and want to continue to live here, but their marriage is no longer working. Carlos in particular is thinking about divorce. How should he proceed? Will Carlos need to go back to Brazil to get divorced since he and his wife are both citizens of Brazil? Or can his divorce be handled in the District of Columbia where both spouses live?
Although many appear to think you have to be a U.S. citizen in order to get divorced in the U.S., there is no such requirement. One’s citizenship or immigration status is not relevant for purposes of obtaining a divorce in the United States. What is important, however, is whether a person meets the residency requirements of a particular jurisdiction in the United States where the person is seeking to get divorced.
In the District of Columbia, one must have been a bona fide resident of the District of Columbia for at least six months prior to applying to the Court for a change of legal status from married to divorced. In addition to having your home in the District for more than six months prior to filing for divorce, a person must also have the intent to remain indefinitely in the District of Columbia in order to qualify as a DC bona fide resident.
In the case of Carlos and Maria, they both meet the “bona fide resident” test as each has lived in D.C. in excess of the six-month requirement, and both plan to continue to live in D.C. for the foreseeable future. Once the parties are separated for the required period of time (six months, if the separation is mutual and voluntary, or one year if the separation is not mutual and Maria does not agree to the separation), Carlos may file his complaint for divorce in the District of Columbia.
If Maria doesn’t want the divorce, she may try to contest jurisdiction of DC court by arguing that Carlos is in the District of Columbia temporarily because of his job and therefore he does not meet the bona fide residency requirement. If there is a challenge to Carlos’ D.C. bona fide residency status, the Court will look for additional evidence of Carlos’ connection to D.C. Does Carlos file DC taxes? Does he hold a DC drivers license? Is his car registered in DC? Do the spouses own or lease property in the District of Columbia? If the Court establishes these and other “indicia” of Carlos’ connection to the jurisdiction, Carlos will likely be successful in proving that he is a bone fide resident of the District of Columbia for purposes of his divorce.