DIVISION OF PROPERTY AND RESIDENCY REQUIREMENT: DC DIVORCE

The DC Court of Appeals in ABULQASIM v. MAHMOUD, reviewed the lower court decision pertaining to appellant’s claim that the trial court:

  1. Lacked subject-matter jurisdiction over the matter because neither party had been a bona fide resident of the District of Columbia for at least six months prior to appellant’s filing of the divorce action;
  2. Abused discretion in admitting hearsay testimony regarding an email, not introduced into evidence, that alleged appellant was having an extramarital affair; and
  3. Erred in including a number of items appellant asserts were his separate property in the distribution of marital property.

Factually, appellant Abulqsim sought divorce from his wife Mahmoud in DC Courts after both has travelled back and forth to and from Sudan and the six months continuous residency  requirements before filing had been broken.

The DC bona fide residence filing requires that no action for divorce or legal separation shall be maintainable unless one of the parties to the marriage has been a bona fide resident of the District of Columbia for at least six months preceding the commencement of the action.

To break the residency chain, there must be: 1) physical presence in another jurisdiction; and (2) an intent to abandon the former domicile and remain for an indefinite period of time in a new jurisdiction.

The trial court as well as the Court of Appeals held that short period of stay in Sudan did not break the chain of residency and the DC courts had jurisdiction to rule on the divorce filing.  Parties own a home in the District, children attended DC schools and parties held various bank accounts all evidence of substantial and continuous contact with the jurisdiction.

Moreover, Mahmoud’s reluctance to move the family to the Sudan casts doubt on whether she ever formed the intent to abandon her residence in D.C. Overall, physical presence in the Sudan for sixteen days within the six months prior to the filing of the divorce action did not negate or disqualify residency requirements.

The Court also ruled that although the testimony pertaining to the content of the email was hearsay, the trial court had admitted the email to establish evidence of extramarital affair   and not for the truth of the matter asserted.

A rather convoluted ruling however the trial court had found a legal reason to admit such evidence in considering the division of property as the appellant had diverted marital funds to a third party with whom he has extra-martial relationship.

The trial court in applying all of the legal elements in the division of property:

  • The duration of the marriage;
  • Mahmoud’s contributions to the family’s health and happiness; (3) Mahmoud’s desire to work outside of the home, which Abulqasim had prevented her from doing;
  • Abulqasim’s ability to seek profitable employment and refusal to seek a job commensurate with his skills since his separation from Mahmoud;
  • Abulqasim’s cancellation of joint credit cards and depletion of marital joint investment accounts, repeated travels to Africa and the Middle East, and transfer of “tens of thousands of dollars to a woman other than his wife”;
  • Mahmoud’s substantial debt incurred for the care of the four children;
  • Mahmoud’s improvements to the H Street house; and
  • Mahmoud’s limited earning capacity;

Concluded that Mahmoud was entitled to about 80 percent of the martial assets.

As to husband’s sole and separate property, the appellant had the burden to establish that he was the sole owner of certain properly not marital and he was unable to meet that burden at trial and absent a clear and well defined prenuptial agreement — all property acquired after marriage is considered to be martial property.

Refer to our Washington DC Divorce lawyer page for more details on this subject.

Categories: Family Law.