Alimony & Spousal Support

First to File Divorce Doctrine

In the New Jersey family law, divorce case of Kemunto-Angwenyi v. Mghenyi, App. Div. 20-2-5495, the parties were married in Kenya. Defendant filed a divorce action in Kenya in May 2011. Plaintiff filed this divorce action in September 2011. In December 2011, defendant filed an action for annulment in Kenya. Defendant appealed the order denying his motion to dismiss plaintiff’s divorce action under the first-filed doctrine and from the final judgment of divorce entered by default after he failed to appear for trial. Noting that each party’s pleadings and sworn statements contained significant internal inconsistencies and contradicted those of his or her adversary regarding co-habitation and consummation of the marriage, the panel affirmed, finding no error in the trial court’s interlocutory orders to deny defendant’s motion to dismiss and for reconsideration based on the first-to file rule and the court’s decision to proceed with the default hearing in defendant’s absence. The panel found that consistent with the Supreme Court’s observation that the first-to-file issue requires a “fact-specific inquiry,”

the trial court decided that the parties presented factual issues which required resolution at a plenary hearing that it intended to conduct in conjunction with the trial on the divorce claim and that when defendant failed to appear, he defaulted on his assertion of the first-to-file rule; the record did not support a finding that defendant satisfied his initial burden to show that he filed the first action where he filed his nullification petition, in which he sought to revoke the divorce action, after plaintiff filed her New Jersey divorce complaint; and that special equities favored retention of jurisdiction here, primarily on forum non conveniens grounds.

Reference: Cases & Analysis, New Jersey Law Journal, 219 N.J.L.J. 167 (January 19, 2015)

Filed Under: Family Law; Divorce Action; First to File Divorce Doctrine

Please visit our Family Law website for more information on this topic.