Weiju (Livia) Li, Melissa J. Montenes, Pankaj Malik
In New York State, all divorce proceedings must be filed in the Supreme Court in one of New York’s 62 counties, with the appropriate county depending on where the parties reside. The Supreme Court can also adjudicate child custody and visitation disputes if they are related to a matrimonial matter. By contrast, you cannot get a divorce in Family Court, though you may file child custody, visitation, and child support disputes there.
The Legal Recognition Requirement
A divorce action cannot be filed in New York unless the marriage is legally recognized by the state. In New York, legal recognition of a marriage requires that the parties obtain a marriage license or have the marriage solemnized by clergyperson, minister of any religion, or a licensed officiant. New York does not recognize so-called “common law marriages,” the term given to relationships that have the appearance of a marriage but lack a marriage license or solemnization by a licensed officiant.
The Residency Requirement
To successfully file proceedings in New York Supreme or Family Court related to matrimonial issues, the filer must be able to demonstrate certain periods of residency in New York State. Specifically, the filer must show that the parties meet at least one of the five following standards set forth in Domestic Relations Law (DRL) § 230:
DRL §230 (1): The parties were married in New York, AND either party lived in New York for a continuous period of at least one year immediately prior to the divorce proceeding.
DRL §230 (2): The parties resided in New York as a married couple during their marriage AND at least one party lived in New York for a continuous period of at least one year before the divorce filing.
DRL §230 (3): The cause of, called the grounds for divorce, took place in New York AND either party lived there for a continuous period of at least one year before the divorce action was commenced.
DRL §230(4): Both parties were residents of New York when the grounds for divorce occurred AND the grounds for divorce occurred in the state.
DRL §230(5): Either spouse lived in New York for a continuous period of at least two years before the divorce action is commenced.
Grounds for Divorce – DRL Section 170 identifies 7 possible grounds:
DRL §170(1): Cruel and inhuman treatment – This ground requires evidence of domestic, physical, psychological or verbal abuse during the 5 years immediately preceding the filing.
DRL §170(2): Abandonment – This ground must have continued for at least 1 year and can be actual or constructive. Examples of constructive abandonment include refusing to cohabitate as a married couple, refusing to have sex with the other spouse, refusing to communicate with the other spouse, or giving the other spouse “cold treatment.”
DRL §170(3): Imprisonment – This ground is available if one spouse is incarcerated for 3 or more consecutive years beginning during the marriage. It can be used while the spouse is in prison or within 5 years of the spouse’s release.
DRL § 170(4): Adultery – This ground requires evidence of the date, time, and place of the adultery, and name and information about the person with whom the spouse committed adultery. This is the most difficult ground to prove in New York.
DRL § 170(5): Divorce after a judgment of separation – The parties had lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment.
DRL § 170(6): Divorce after a legal separation agreement – The parties should sign and file a valid separation agreement and live apart for one year. Any reconciliation could affect the ability to use this ground.
DRL §170(7): No-fault divorce – Added in 2010, no-fault divorce requires that the plaintiff must state that the marital relationship has irretrievably broken down for at least 6 months. No evidence is required to show the breakdown of the marital relationship. It is enough for one party to state that they want to be divorced.
DRL §231 states that “If a married person dwells within the state when he or she commences an action against his or her spouse for divorce, annulment or separation, such person is deemed a resident thereof, although his or her spouse resides elsewhere.”
Applying the Residency Requirement – Can These Couples File for Divorce in NY?
Question #1: Five years ago, I married my wife in New York State. We moved to California because of work. We moved back to New York about three months ago. Can we file a divorce in New York State?
Answer: The marriage license was procured in New York. Since the couple moved back to New York only three months ago, it does not meet the requirement under §230 (1) that at least one of the parties must be living in New York for one year before divorce is commenced. However, pursuant to §230 (4), since both parties are now residing in New York, the divorce could be filed in New York if they are filing no-fault divorce or can prove any of the other grounds for divorce.
Question #2: My wife and I were married in New York, we moved to Kentucky six months ago because of work. We still reside in Kentucky now. Can we file for divorce in New York State?
Answer #2: The marriage ceremony was held in New York, but neither of the parties lived in New York continuously for the one year immediately preceding the filing. Therefore, §230(1) cannot be applied. As neither party live in New York currently, none of the other requirements provided by §230 are applicable. This couple cannot file for divorce in New York.
What If I Have Residences in More Than One State?
Under New York law, a party may maintain more than one residence and still be able to file in New York if the party’s domicile is in New York. The party only has a domicile in New York if the party lives in New York with the intention to make New York his/her permanent home. Several factors could be considered to determine where the domicile is for a divorce action.
- Home – Courts may ask several questions to determine whether the New York residence is a party’s domicile. For example, is the New York residence owned or rented? What are the value and size differences between the New York and non-New York residences? Is it the actual intention for the party to stay permanently in their New York residence? Is the party filing taxes in New York?
- Time – Time is important in questions of defining the domicile. The domicile test focuses on a change in patterns more than just the number of days in and out of New York. If either party spends more time at a location other than their claimed home, the court may question whether that party has a domicile in New York.
- Career location – If either party establishes a career in New York State and intends for a long-term development of this career, then it can be an indication of having a domicile in New York.
- Properties or Assets – If most of the specific, treasured, intangible properties of the party are in New York, then it is an indication of having a domicile in New York.
Residency Requirements in NY Family Court
NY Family Court Act §115 (a) provides that the family court has exclusive original jurisdiction over six types of proceedings, including but not limited to proceedings related to abuse and neglect, child support, paternity, guardianship, and custody of a child, etc.
Family Offense proceedings – A party merely must show physical residence in New York to obtain an order of protection, even if the offense occurred outside of New York and the offending party is outside New York, provided personal service can be completed.
Jurisdiction Of Out of State Courts Over Custody Issues
The courts of another state will have jurisdiction over custody and visitation if the minor child has resided in that state for a period in excess of 6 months
This article about Domestic Relations Law is provided as part of a free educational service by YK Law LLP, Weiyu Li, Melissa Montenes and Pankaj Malik, attorneys at law for reference only. If you still have questions or concerns about matrimonial issues, please feel free to use our half hour free consultation service by contacting YK Law LLP.