Residency Requirements for a New York Divorce

PAR~commonswiki [Public domain], via Wikimedia CommonsIn order to file for divorce in New York, a person must establish that they, their spouse, or the circumstances of the divorce meet the state’s residency requirements. Section 230 of New York’s Domestic Relations Law identifies five scenarios in which a person may file for divorce in this state, usually based on where one or both parties reside. In some circumstances, a New York court may hear a divorce case, with a much reduced residency requirement, if a cause of action related to the divorce occurred within the state. A Manhattan court considered a claim last year in Stancil v. Stancil that “the irretrievable breakdown of the marriage,” the condition for a “no-fault” divorce, occurred in this state, even if the parties did not otherwise meet the residency requirements. The court disagreed.

The issue of residency is based on the legal doctrine of personal jurisdiction, a court’s authority to exercise power over a party. The legal issues surrounding personal jurisdiction are quite complex, but a simple way to summarize them is to say that a court cannot exercise personal jurisdiction over someone who has no connection to the state in which the court sits. A person attempting to sue a resident of Hawaii in a New York court, for example, must be able to show some connection to New York. The type of connection depends on the type of case.

According to § 230 of the Domestic Relations Act, a New York court has jurisdiction over a divorce case if:

1. The marriage occurred in New York, and at least one party has lived here continuously for at least one year;
2. The parties lived in New York as a married couple at some point in time, and at least one party has lived here continuously for at least one year;
3. The cause giving rise to the divorce occurred in New York, and at least one party has lived here continuously for at least one year;
4. The cause giving rise to the divorce occurred in New York, and both parties currently live in New York; or
5. Either party has continuously resided in New York for at least two years.

The parties in Stancil were married in Virginia in 1998. The defendant/husband was on active duty in the U.S. Navy, and while he was deployed to Japan, the plaintiff/wife and their one child moved to South Carolina. The husband was stationed in Virginia in 2003, but he reportedly insisted that the wife and child remain in South Carolina. They jointly purchased a home in South Carolina in 2006, although the husband remained in Virginia. The wife took an internship in New York City in 2013 as part of her graduate studies, and she moved there with the child.

In 2014, after 14 months in New York, the wife filed for divorce, claiming an “irretrievable breakdown of the marriage” under New York’s no-fault divorce law. She argued that this met the third residency requirement listed above, since the “breakdown” occurred in New York, and she had lived there for more than one year. The husband objected, arguing that the no-fault ground for divorce does not constitute a “cause” under the residency law, and that she needed two years of residency in New York under the fifth requirement. The court agreed with the husband and dismissed the case.

For the past 30 years, New York City divorce attorney Ingrid Gherman has represented clients in divorces and related matters, guiding people through the many difficult and complicated issues that family law cases often present. To schedule a confidential consultation to see how we can assist you, contact us today online or at (212) 941-0767.

More Blog Posts:

Can Ex-Spouses Keep Running a Business Together After a Divorce? New York Divorce Attorney Blog, October 2, 2015

New York Appellate Court Vacates Part of Divorce Judgment, Finding Issues of Property Distribution Remained in Dispute, New York Divorce Attorney Blog, September 2, 2015

New York Courts Address Post-Divorce Motions to Rescind Settlement Agreements, New York Divorce Attorney Blog, August 20, 2015

Photo credit: PAR~commonswiki [Public domain], via Wikimedia Commons.