Friend of Letters Blogatory Melissa Kucinski has an excellent post about Marriage of Quijada and Dominguez (Ariz. 2024), an interesting case about domicile in divorce. The spouses moved to Arizona on TN and TD visas. These are special nonimmigrant visas, created under NAFTA, for workers in certain professional fields who have jobs in their field arranged in the United States, and for their dependents, and they are expressly temporary. When you get the visa, you have to disclaim any intention to stay in the United States permanently. But the initial period can be extended, and the temporary workers can apply to adjust their immigration status so that they can stay permanently.

The husband and the wife in today’s case had come to Arizona for the husband’s work; the wife was there as his dependent. The wife’s visa had expired when the husband refused to renew it, but she had applied to become a legal permanent resident. She still lived in Arizona, but he had moved to Virginia. The wife sought a divorce in Arizona after the husband had (unsuccessfully) sought a divorce in Mexico.

In American law, divorce jurisdiction is usually connected with domicile. Domicile, put simply, is the place where you make your permanent home with no intention of changing it in the future. At least one spouse has to have had a domicile in the forum state for some period of time prior to the divorce in order for the court to have jurisdiction. The interesting question: could the wife have a domicile in Arizona, given that she had applied for a visa that was premised on her stay being temporary?

It seems to me that the answer has to be that yes, the wife could have a domicile in Arizona, and that’s what the Arizona Supreme Court found. One reason is that the wife had taken steps to adjust her immigration status and thus indicated an intention to stay in Arizona permanently, as Melissa mentions in her post. But it seems to me that even if the wife hadn’t applied to adjust her status, or even if she had consciously lied about her intention when she applied for her nonimmigrant visa, domicile is mostly just a question of fact that decides what laws apply to a person’s status, and not a reward for following the law or for good behavior. Someone who comes to Arizona on a tourist visa with the intent to stay forever, and who actually does stay, might have a domicile in Arizona even though he has broken the law. Someone who enters Arizona from Mexico illegally with the intent to stay forever might have a domicile in Arizona for the same reason.¹Counterintuitively, the person who enters the country illegally might actually have a better case for domicile that people who overstay temporary visas, because the illegal immigrant never had to promise to go home. Of course, whatever the law says about a person’s right to stay in a place, and whatever the person told the government about his intent at the time he applied for a visa, have some bearing on the question of the person’s intent. But they can’t be conclusive, it seems to me.

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  Counterintuitively, the person who enters the country illegally might actually have a better case for domicile that people who overstay temporary visas, because the illegal immigrant never had to promise to go home.