Abrams and Barber on Gender Equality, Emerging Adulthood and Domicile

Kerry Abrams, University of Virginia School of Law, and Kathryn Barber,  a 2015 graduate of UVA Law, have posted Domicile Dismantled, which appears in the Indiana Law Journal 92 (2017): 387-433:

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.