Under Pennsylvania law, specifically 23 Pa. C.S. 3104(b), one of the parties to the divorce action must have been a bona fide resident of Pennsylvania for at least six months prior to the commencement of the divorce. Bona fide residence is defined as actual residence with domiciliary intent. Domicile denotes the place where a person has his or her true, fixed, permanent home with the intention of returning after any absence. In other words, where an individual sleeps, takes her meals, receives mail, and stores personal possession. Members of the military are considered to be residents of their home state even if they are stationed elsewhere at the time a divorce is commenced. The home state would be the state where they intend to return to and reside in following any term of active duty.

Jurisdiction for custody matters is usually also based on a six month time frame. Jurisdiction is proper in the home county of the child which is where the child has resided for at least six months prior to commencement of the action. Temporary absences from the county do not negate residency for the purposes of jurisdiction. Further, in emergency situations, the six month residence requirement may be set aside. Temporary emergency jurisdiction may be exercised if the child is in the jurisdiction at the time and it is necessary to make an immediate determination to ensure the child’s safety. For example, an emergency order may be entered if a child has been abandoned, or is subject to mistreatment or abuse. An emergency order would only be valid until a court with jurisdiction as the home state of the child makes a determination.

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A U.S. Court will recognize a foreign divorce decree under the doctrine of comity so long as the party has established domicile in the foreign country. As discussed in Hilkmann v. Hilkmann, [c]omity is a recognition which one nation extends within its own territory to the legislative, executive, or judicial acts of another. It is not a rule of law, but one of practice, convenience, and expediency. Although more than mere courtesy and accommodation, comity does not achieve the force of an imperative or obligation…Comity should be withheld only when its acceptance would be contrary or prejudicial to the interest of the nation called upon to give it effect. 2003 PA Super 25 (2005). A U.S. Court will invoke comity by its discretion and will usually look at two factors: whether the foreign court had jurisdiction, and whether fair procedures were used.

A U.S. Court will look to domicile as a basis for establishing jurisdiction. In Commonwealth v. Doughty, the court held “[i]t is an established and familiar principle that judicial power to grant a divorce is founded on domicile. In the absence of domicile by at least one of the parties to the action, the Court has no jurisdiction over the cause and its decree will consequently, not be endowed with extraterritorial effect.” 187 Pa. Super. 499 (1958). Accordingly, “[a]n absolute prerequisite to judicial recognition of an out-of-state divorce is that the plaintiff must have resided in the state or country for a minimum period of residency as determined by local authority and that the residency be accompanied by domiciliary intent, i.e., an intent to remain the foreign jurisdiction.” Sargent v. Sargent, 225 Pa. Super. 1 (1973). These principles extend beyond divorce and hold the same for other family law court orders as well as contracts.

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Under Pennsylvania law, one of the parties to the divorce action must have been a bona fide resident of Pennsylvania for at least six months prior to the commencement of the divorce. Bona fide residence is defined as actual residence with domiciliary intent. Domicile denotes the place where a person has his or her true, fixed, permanent home with the intention of returning after any absence. In other words, where an individual sleeps, takes her meals, receives mail, and stores personal possession.

Generally, an action may only be brought in the county where one of the party resides. There are two exceptions allowing a divorce action to proceed in a different county including by mutual agreement of the parties in writing or by participating in the action started in a different county. If two divorce actions are commenced within 90 days of each other, the county where a party resides or where the last marital residence was located gets to determine which county should handle the matter. If neither county is the location of the last marital residence and no party resides in either county, the county that received a complaint in divorce first can make the determination as far as which county will proceed.

Parties should be careful about agreeing to, or participating in, divorce actions outside of their home counties if property distribution and/or other issues such as custody and support may be raised during the divorce. A divorce action may need to be transferred to the county where the bulk of the property is located or where the children reside for custody or where one of the parties reside for support. This will likely result in the expense of having to file a new complaint in the appropriate county as well as the expense and delay of petitioning to have the matter transferred. On the other hand, parties with no issues relating to the divorce may benefit from a cheaper filing fee by choosing a county other than their own for the divorce action.

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