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Domicile Dismantled

47 Pages Posted: 21 Jun 2017  

Kerry Abrams

University of Virginia School of Law

Kathryn Barber

United States Court of Appeals for the Ninth Circuit

Date Written: May 16, 2017

Abstract

Domicile is more durable than residence: it is defined as a person’s “true, fixed, and permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom.” This Article argues that, in the last fifty years, the legal fiction of domicile has become increasingly unmoored from the reality of people’s lives. This shift resulted from two historical changes. The first is the rise of gender equality. As women entered the workforce in increasing numbers and gained access to higher education, their mobility and autonomy increased. Simultaneously, they began to delay marriage, or to forego marriage altogether, and those who were married were less likely to reflexively adopt their husband’s domicile and were more inclined to make domiciliary choices for themselves and their families. The second is the increasingly long time it takes young adults to become financially and emotionally self-sufficient and independent from their parents. This so-called phenomenon of “emerging adulthood,” identified by psychologists as a new phase of life that sometimes lasts into a person’s thirties, has made it more difficult for young adults to establish a new domicile. Courts have thus increasingly relied upon a person’s domicile of origin in making these determinations, even where there is little chance that the party will ever return there. This Article uses the landmark 1971 case of Mas v. Perry to illustrate the dismantling of domicile. It traces the history of changing gender roles and adult development since Mas and argues that because of these two trends, the concept of domicile is no longer capable of doing the legal work it is supposed to do. Residence, rather than domicile, is a more sensible and accurate way to handle jurisdictional questions.

Keywords: Domicile, Gender, Adulthood, Jurisdiction, Higher Education

Suggested Citation

Abrams, Kerry and Barber, Kathryn, Domicile Dismantled (May 16, 2017). 92 Indiana Law Journal 387 (2017). Available at SSRN: https://ssrn.com/abstract=2969064

Kerry Abrams (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-924-7361 (Phone)

Kathryn Barber

United States Court of Appeals for the Ninth Circuit

125 South Grand Ave
Pasadena, CA 91105-1621
United States

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