ESTABLISHING RESIDENCY FOR A CONTESTED DIVORCE IN GUAM What to do if spouse won't sign

Some people living over seas need a divorce, but their spouse will not consent. To obtain a divorce without your spouse's consent you would first need to establish residency in Guam for a period of 90 days, before filing.

There are two ways to establish residency for divorce purposes.

  • Being physically present in Guam for 90 days before filing; or
  • Coming to Guam 90 days before filing with a good faith intent to make Guam their residence.
  1. PHYSICAL PRESENCE.

Guam statutes allows anyone to apply for a divorce if they have been physically present in Guam for 90 days immediately preceding the filing of the divorce complaint.

If somebody meets the physical presence requirement, it does not matter if they actually intend to make Guam their residence. Under this portion of the statute, you can come to Guam for 90 days solely for the purposes of filing for divorce with no intent to maintain any long terms ties with the Guam.

It is unclear whether the 90 days must be continuous. However, it is probably reasonable to assume that the 90 days must be completed within a short period of time, we would say no longer than 6 months. This would enable someone to come to Guam for several weeks, and return to some other location to conduct some business and then, within a short period of time, come back to Guam to complete the 90 days.

  1. INTENT TO MAKE GUAM A RESIDENCE.

If one comes to Guam for the purposes of establishing residency here, and making Guam their home, then they do not need to be physically present in Guam for 90 days before filing. However, the person would need to demonstrate, that the intent was real. This is usually done by establishing connections with the Guam, such as registering to vote, filing taxes here, becoming employed in Guam, obtaining a driver’s license, moving bank accounts to Guam and becoming affiliated with local organizations.

There is no one thing a person can do to prove their intent. The more the person does, the better the chance the court will believe the intent was real.

This option makes the most sense for American expats working in Asia, who can come to Guam to live for 90 days, but may needs to make one or more short trips out of Guam, during the 90 residency period.

For the person working and living in the U.S. Mainland, this may not be a viable option. If the person comes for a short time, and returns to their home and job in the U.S., it is not believable that they came to Guam for the purposes of establishing a residence here. If their spouse challenges the residency claim in a divorce action, and shows to the court that the person, after coming to Guam for a short period, continued to work and live in another U.S. jurisdiction, the case will likely to be dismissed.

It is important to note, that anyone that files a contested divorce in Guam will need to sign the divorce complaint under oath. In that complaint, they will state that they are a resident. So the person claiming residence, has to be willing to swear, that the facts establishing the residency are correct.

Here is what our statutes regarding residency say:

19 GCA §8318. Residence of Parties.

(a)  A divorce or dissolution of marriage may be granted if one (1) of the parties has been a resident of Guam for at least ninety (90) days immediately preceding the filing of a complaint for divorce, or dissolution of marriage.

For purposes of this Section, a person shall be deemed a resident if one (1) of the parties has been assigned with the U.S. Military to a unit on Guam or a ship home-ported in Guam for at least ninety (90) days immediately preceding the filing of a complaint for divorce or dissolution of marriage or if one (1) of the parties is physically present in Guam for at least ninety (90) days immediately preceding the filing of a complaint for divorce or dissolution of marriage.

Physical presence by one of the parties in Guam for a period of ninety (90) days prior to filing of the action for divorce or dissolution of marriage shall give rise to a conclusive presumption of compliance with this Section.

(b) If both parties consent in writing to a divorce or dissolution of their marriage, a divorce or dissolution may be granted if one of the parties has resided in Guam for at least seven (7) days immediately preceding the filing of the complaint.

SOURCE: CC §128, amended by P.L. 13-165:3, as R/R by P.L. 17-81:26. Repealed/reenacted by P.L. 19-34:28; and amended by P.L. 27-129, and P.L. 28-93.

19 GCA §8319. Residence, no presumption of jurisdiction.

(a) In actions for dissolution of marriage, neither the domicile nor residence of the husband shall be deemed to be the domicile or residence of the wife. For the purposes of such an action, each may have a separate domicile or residence depending upon proof of the fact and not upon legal presumptions.

Physical presence in Guam for ninety (90) days next preceding the commencement of the action shall give rise to a conclusive presumption of residence in Guam as required by §8318 of this Chapter.

Allegations and proof of residence or other compliance with the requirements of §8318 of this Chapter shall be pled or proved in any divorce or dissolution of marriage granted upon the consent of the Defendant, and the court shall make findings as to residency of any party to a divorce or dissolution of marriage or as to compliance with the requirements of §8318 of this Chapter in any divorce or dissolution of marriage granted upon the consent of the Defendant.

Residency must be pled and proved in all divorces or other actions for dissolutions of marriage.

Only the parties (i.e., the husband or wife) or the court can raise the issue of or object to the jurisdiction of the Superior Court of Guam in an action for divorce or dissolution of marriage, residence of the parties, or other compliance with §8318 of this Chapter in any case even where the defendant has consented to the divorce or dissolution of marriage.

The Superior Court of Guam is not presumed to have jurisdiction over any action for divorce or dissolution of marriage which may be filed in the Superior Court of Guam because the defendant consents.

(b)   All consents to a divorce or dissolution of marriage must be acknowledged or verified before a notary public or other officer authorized to administer oaths within the United States if signed in the United States, acknowledged or verified before a consular officer of the United States or other United States official authorized to take oaths if signed outside the United States, or have a notarized acknowledgement or verification by a foreign notary which is authenticated by a United States consular officer.”

SOURCE: CC §129, R/R by P.L. 17-81:27. Repealed/reenacted by P.L. 19-34:28 (effective date 12/19/88), and amended by P.L. 28-93.

Ron Moroni
Gumataotao & Pole
Hagatna Guam

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