(dissenting). Before us is a consolidated appeal from the dismissal of two divorce complaints filed by the plaintiff,1 and from the denial of her motion for reconsideration.
The initial divorce complaint (and the defendant’s counterclaim for divorce) was dismissed for lack of subject matter jurisdiction pursuant to the defendant’s oral motion, lodged on the first day of trial. The Probate and Family Court judge considered the pleadings, as well as testimony and documentary *175evidence submitted by the parties, in coming to her conclusion that, because the marital breakdown occurred in Florida, Massachusetts does not have subject matter jurisdiction. The plaintiff’s motion to reconsider was denied. The second complaint was likewise dismissed.
The judge’s decision focuses on the requirement in G. L. c. 208, § 4, that one of the parties to the marriage must have “lived in this Commonwealth at the time the cause [of the breakdown] occurred.”2,3 The parties agree that the marriage breakdown occurred in Florida. The judge’s determination, that “[t]he credible evidence supports a finding that upon marriage the parties intended to make Florida their permanent residence,” focuses on evidence of whether the plaintiff changed her domi*176cil from Massachusetts to Florida following the marriage and appears to impose on the plaintiff the burden of establishing that she did not change her Massachusetts domicil.
Some of the findings are not supported by the evidence and the findings that are supported do not establish that the plaintiff changed her domicil from Massachusetts to Florida. It has long been established in a variety of substantive areas that when there is a claim that a fixed domicil has been changed, the burden of production and persuasion is on the one asserting the change. I would remand for new findings and consideration of the evidence in light of the applicable burden of proof.
Burden of establishing changed domicil. It is not disputed that at the time of the parties’ marriage, the plaintiff had been a long-time domiciliary of the Commonwealth. “There is a presumption that once domicile is established it continues.” Kindregan & Inker, Family Law & Practice § 27.2, at 75 (3d ed. 2002). See Labonte v. Labonte, 210 Mass. 319, 320-321 (1911).
Once a domicil is established, “the burden of showing a change is upon the party who asserts it.” Todd v. Foster, 328 Mass. 136, 138 (1951) (in case involving collection of support arrears, defendant former husband asserted change in domicil; he failed to meet his burden of rebutting presumption that his established domicil continued). See Levanosky v. Levanosky, 311 Mass. 638, 642 (1942) (burden on libellant to establish “existence of an intent at the time of the marriage not to continue to have a domicil in this Commonwealth”); McMahon v. McMahon, 31 Mass. App. Ct. 504, 507-508 (1991). See also Commonwealth v. Davis, 284 Mass. 41, 49 (1933) (domicil of origin is “presumed to have continued in the absence of compelling evidence that it was changed. The burden of proof that his domicil was changed rested on the defendant because he is the one who asserted that such change had taken place”); Mellon Natl. Bank & Trust Co. v. Commissioner of Corps. & Taxn., 327 Mass. 631, 638 (1951) (general rule that burden of showing a change of domicil is on party asserting the change); Horvitz v. Commissioner of Rev., 51 Mass. App. Ct. 386, 394 (2001) (same); Restatement (Second) of Conflict of Laws § 19 comments a and c, at 78 (1971) (“A domicil, once established, continues until a new one is acquired. . . . The burden of proof is on the *177party who asserts that a change of domicil has taken place”). Cf. Fortier v. Rogers, 44 Mass. App. Ct. 732, 734 n.4 (1998), quoting from McDougald v. Jenson, 786 F.2d 1465, 1483 (11th Cir.), cert. denied, 479 U.S. 860 (1986) (noting that Massachusetts jurisdiction lacking where plaintiff wife failed to prove husband’s lack of domicil in Florida and “under Florida law, one’s domicil, once properly established, is presumed to continue and the burden of proof ordinarily rests on the party asserting the abandonment of one domicil to demonstrate the acquisition of another”).4
Here, it was the defendant who challenged the presumption by asserting that the plaintiff had changed her decade-long Massachusetts domicil to Florida and thus it was she who bore the burden of proving a change in domicil. This principle is not inconsistent with the rule that “[t]he burden is on the party asserting jurisdiction to prove jurisdictional facts.” Miller v. Miller, 448 Mass. 320, 325 (2007), citing Caffyn v. Caffyn, 441 Mass. 487, 491 (2004). Neither Miller, supra, nor Caffyn, supra, depend on a showing of changed domicil to support jurisdiction. The issue of a change in a long-established domicil is not presented where jurisdiction is being asserted by “migratory divorce seekers,” Florentino v. Probate Ct., 365 Mass. 13, 21 (1974), who might fraudulently claim to have acquired a recent domicil in Massachusetts in order to obtain a divorce within the Commonwealth. In such a case, “[t]he burden of establishing domicile in order to obtain a divorce in Massachusetts is on the plaintiff.” Kindregan & Inker, supra at 73, citing Field v. Field, 236 Mass. 256, 258 (1920). That is not the situation here.
The burden of production and persuasion shifts to the challenging spouse once the spouse seeking a divorce has made a showing of an existing domicil. Cf. Horvitz v. Commissioner of *178Rev., supra at 395 (where taxpayer has made showing of existing domicil, burden shifts to commissioner not only to produce evidence of change “but to persuade”). The plaintiff met her initial burden by asserting facts that established her Massachusetts domicil; upon the defendant’s challenge to jurisdiction based on a change in domicil, the burden shifted to the defendant to prove that a change occurred.
Here, the defendant, contradicting her own admissions to jurisdictional facts set forth in her pleadings,5 claims that the plaintiff had changed her domicil to Florida, challenging the Commonwealth’s power to adjudicate a divorce within the Commonwealth. “Divorce, like marriage, is of concern not merely to the immediate parties. It affects personal rights of the deepest significance. It also touches basic interests of society. Since divorce, like marriage, creates a new status, every consideration of policy makes it desirable that the effect should be the same wherever the question arises.” Williams v. North Carolina, 325 U.S. 226, 230 (1945). In the context in which the attack on jurisdiction arose in this case, the burden was on the defendant to prove that the plaintiff, who unquestionably was a Massachusetts domiciliary at the time of the marriage here, changed her domicil to Florida. The findings and evidence on which they rest must be reviewed in this light.
Findings. I have accepted all of the judge’s findings that have a basis in the evidence, as well as those that are not “clearly erroneous.” Kendall v. Selvaggio, 413 Mass. 619, 620 (1992). Findings based on conjecture and on the defendant’s opinions or beliefs should be disregarded. See Gladstone v. Treasurer & Receiver Gen., 337 Mass. 48, 51 (1958) (“a guess or conjecture in the form of a conclusion from basic facts that do not tend toward that conclusion has no evidential value”). Several findings fall in this category.
The finding that “[t]he marital bliss was so short lived that [the plaintiff] never got around to changing her [Massachusetts] vehicle or voter registrations, if she ever considered doing so at all,” has no foundation in the evidence and is purely conjectural. *179Moreover, any inference that the plaintiff “never got around” to changing these objective indicia of her Massachusetts domicil does not meet the defendant’s burden to establish that the plaintiff had changed that domicil to Florida. What was needed was affirmative evidence of a change, not the absence of a change.
Likewise, the judge’s conclusion that the parties intended to spend only their summers in Massachusetts rests on the defendant’s statement regarding her belief as to what the plaintiff knew (“she knew of my desire not to live in Massachusetts. And we were only going to spend summers in Massachusetts”). The finding that the defendant “was clear and unequivocal in her disclosures to [the plaintiff] during their courtship that she had no intentions of living in Massachusetts,” supports an inference regarding the defendant’s intent but not a conclusion that the plaintiff changed her domicil from Massachusetts to Florida. See Green v. Commissioner of Corps. & Taxn., 364 Mass. 389, 391-395 (1973) (New Hampshire woman remained domiciliary of that State for the five months she continued to reside there following marriage to Massachusetts man); Miller v. Miller, 448 Mass. at 327 (no requirement that husbands and wives occupy the same home).6
The finding that the plaintiff had “closed a shop she operated in Massachusetts with the intention of opening a shop in Florida during the high season which runs from October through May each year,” is not warranted on evidence that the plaintiff sold her business in 2005, a year before the parties were married, nor on the defendant’s statement of what she thought they might do in the future (“we were going to open up a shop in Florida”). There was no evidence of the plaintiff’s view of these plans or *180that the parties took any steps toward starting a new business in Florida.
The finding that the parties “moved” to Florida appears to be based on the plaintiff’s testimony that the parties went to Florida to the second home she was buying there and that she brought her car with her (which she then brought back to Massachusetts, as was her routine). In the context of uncontroverted testimony that the plaintiff maintained a home in Massachusetts and purchased a second home in Florida, where she routinely spent the winter months, the parties’ “move” is a neutral fact that does not meet the defendant’s burden of proving that the plaintiff changed her domicil. The fact that the plaintiff purchased a second home does not establish a change in domicil. The applicable rule as set forth in Restatement (Second) of Conflict of Laws § 20 is that where a person has “more than one dwelling place, his domicil is in the earlier dwelling place unless the dwelling place is his principal home.” See Tuells v. Flint, 283 Mass. 106, 109 (1933). Evidence of indicia that would support Florida as the parties’ principal abode are lacking here.
Findings that find support in the evidence and bear on whether the plaintiff changed her domicil are summarized:
The parties were married in Truro on November 29, 2006. They lived as a married couple in Massachusetts for some days before departing for Florida. At the time of the marriage, the plaintiff resided in a home in Truro, which she purchased five and one-half years before the marriage and has continued to own since the marriage. Problems arose shortly after the marriage and the parties enrolled in couples’ counselling in Florida. For ten years preceding the filing of the divorce complaint, the plaintiff routinely made annual trips to Florida, ranging in duration from two to five months. The parties purchased a home in Nokomis, Florida, taking title jointly. The plaintiff is registered to vote in Massachusetts. Her vehicles are registered in Massachusetts. She filed a Massachusetts income tax return in 2006 (the year of her marriage).
These findings are insufficient to support the defendant’s burden to establish by a preponderance of the evidence that the plaintiff changed her domicil to Florida and thus do not support dismissal of the divorce complaints on that ground. “[F]urther *181probing was required rather than a determination of jurisdiction based upon what must be regarded as” an insufficient record. Bank One, Texas, N.A. v. Montle, 964 F.2d 48, 53 (1st Cir. 1992).
Though deference is due the judge’s credibility determination that discounted the plaintiff’s stated intent regarding domicil, there is a dearth of affirmative evidence of an intent to change her domicil and the objective evidence tends rather to support the plaintiff’s expressed intent to remain domiciled in Massachusetts.7 See Levine v. Amber Mfg. Corp., 6 Mass. App. Ct. 840, 841 (1978) (finding was clearly erroneous when it rested “on nothing firmer than [judge’s] obvious disbelief of the plaintiff’s evidence [predominantly documentary and largely uncontradicted] ”); Reiersen v. Commissioner of Rev., 26 Mass. App. Ct. 124, 130 (1988) (board was not “required to believe Reiersen’s expressions of intent, but they were uncontroverted and reinforced, rather than weakened, by the nonsubjective evidence”). “It is settled that mere disbelief of testimony does not constitute evidence to the contrary. A case lacking adequate affirmative proof is insufficient to support a verdict in favor of the party with the burden on the issue.” Kunkel v. Alger, 10 Mass. App. Ct. 76, 86 (1980). See New Boston Garden Corp. v. Board of Assessors of Boston, 383 Mass. 456, 472 (1981).
I would remand for additional findings grounded in the evidence and for further consideration of the evidence in light of the defendant’s burden of establishing by a preponderance of the evidence that the plaintiff’s fixed Massachusetts domicil changed to Florida following the marriage.
For the foregoing reasons, I respectfully dissent.
The first complaint was filed June 27, 2007; the second was filed July 7, 2008.
The judge’s memorandum in support of her dismissal of the divorce complaint correctly cites G. L. c. 208, § 4, as the sole basis for a claim of jurisdiction over the parties’ divorce. The relevant portion of the statute relied on by the judge provides: “A divorce shall not, except as provided in the following section, be adjudged ... for a cause which occurred in another jurisdiction, unless before such cause occurred the parties had lived together as husband and wife in this commonwealth, and one of them lived in this commonwealth at the time when the cause occurred.” (Emphasis added by the judge in her memorandum of decision.) The memorandum further cites G. L. c. 208, § 5: “If the plaintiff has lived in this Commonwealth for one year last preceding the commencement of the action if the cause occurred without the commonwealth, ... a divorce may be adjudged for any cause allowed by law, unless it appears that the plaintiff has removed into this Commonwealth for the purpose of obtaining a divorce.” (Emphasis added by the judge in her memorandum of decision.)
Concluding that “[njeither party resided in Massachusetts at the time when the marriage allegedly became irretrievably broken,” and that the plaintiff “did not reside [in Massachusetts] for one year last preceding the commencement of the action,” the judge dismissed the plaintiff’s complaint for divorce as well as the defendant’s counterclaim for divorce. The decision is not based on a conclusion that the parties had never lived together as wife and wife in Massachusetts, and the judge makes no such finding. Indeed, the defendant’s answer does not deny the assertion in the plaintiff’s divorce complaint that “[t]he parties were married in Truro, Barnstable County, Massachusetts on November 29, 2006, [and] lived together as wife and wife in Truro, Barn-stable County, Massachusetts.”
That the plaintiff may now file for a divorce based on having resided here for over one year, does not render the matter moot. The court in Miller v. Miller, 448 Mass. 320, 325 n.9 (2007), citing Caffyn v. Caffyn, 441 Mass. 487, 491 n.10 (2004), determined the issue of jurisdiction while noting that the plaintiff “now has satisfied the alternative one-year residency requirement” and could file a divorce complaint.
Other jurisdictions have also placed the burden of proof to show a change in established domicil on the party who asserts it. See, e.g., Texas v. Florida, 306 U.S. 398, 427 (1939); Fuller v. Fuller, 991 So. 2d 285, 290 (Ala. Civ. App. 2008); Estate of Derricotte, 744 A.2d 535, 538 (D.C. 2000); Miller v. Nelson, 160 Fla. 410, 420 (1948); Leleux v. Stewart, 859 So. 2d 703, 706 (La. Ct. App. 2003); Gletzer v. Harris, 51 A.D.3d 196, 199 (N.Y. 2008). As these cases reflect, in establishing domicil, the considerations regarding whether domicil was changed are the same whether the inquiry is as to personal or subject matter jurisdiction.
In her answer and counterclaim to the first divorce complaint, the defendant admits that the plaintiff “maintains Massachusetts as her principal domicile.”
The majority notes that “the law presumes that spouses living together share the same domicil absent special circumstances,” ante at 170 n.6, and that this presumption may be overcome by a “declaration of choice of domicil” prior to the marriage. Here, at the time of the marriage there was an existing home in the Commonwealth that the plaintiff continued to own when she purchased a second home in Florida, and where the parties lived together, if briefly, following their marriage. The defendant also executed a “Notice of Intention of Marriage” form, which the parties were required to complete prior to being married in Massachusetts. G. L. c. 207, § 20. In that form, the defendant stated that she intended to reside in Massachusetts. The form no longer requires such a statement.
In addition to findings that are supported by competent evidence, the judge had before her at the hearing on the motion to dismiss and in connection with the motion to reconsider, this uncontroverted evidence: the plaintiff’s primary financial institutions have remained in Massachusetts; the plaintiff has no employment in Florida; the plaintiff owns two vehicles, a 2004 Toyota Sienna and a 1999 Toyota 4-Runner, both registered in Massachusetts; she uses a vehicle to get to and from Florida, but does not leave one there.