Long Island Family Law and Mediation Blog
Filing for a divorce, regardless of where you live or what the underlying circumstances may be, can sometimes require some thought to ascertain in which state in this Country you should file. There are rules to follow throughout almost every aspect of the case, from determining where you will be able to file for a divorce, to figuring out exactly who has the rights to what through equitable distribution. Before you can go ahead with filing for a divorce, regardless of the process chosen to sort out the issues to dissolve your marriage, be it mediation, litigation, or collaborative law, you must ensure that you meet the residency requirements for a divorce case to take place in New York. After all, throughout the United States, each state has its own jurisdiction, and you must apply for legal action in the State that applies to you.
Those who apply for divorce without meeting the residency requirements for New York may find that their cases are dismissed. To apply for a divorce within New York, it is crucial for at least one party to meet with one of the following requirements regarding residency as is outlined in the New York Domestic Relations law:
- The ceremony for the marriage of the couple seeking a divorce must have been performed within the State of New York, and at least one of the spouses involved had legal residence within the state of New York for at least one year continuously prior to the beginning of the action; or,
- Both spouses lived and held themselves as husband and wife within the State of New York, and one (or both) has been considered a resident for at least one year before the commencement of the action; or,
- The reason (grounds) for the divorce took place within New York, and one of the spouses has been a resident of New York for at least one year before the action commenced; or,
- The reason for the divorce took place in New York, and both spouses were residents of New York at the time that the grounds for divorce occurred; or,
- If both spouses were not married within the State of New York and were never living as a “husband and wife” couple within the state, or the reason for the divorce didn’t occur within the state, either spouse must have lived within New York as a resident for a minimum of 2 years before the case is filed.
Please note that the law does not currently require you to remain within the same address in order to fulfill the New York Divorce residency requirements. Remember that it is possible to move to any location within the State wherein you are filing for divorce. Though the customary divorce documents will not require you to list all of your past addresses, you should be able to prove where you were living should the residency requirements be questioned by the other side of the case or the court.
In regards to the requirements that underline the “reason” or grounds for the divorce taking place within New York, its worth understanding what counts as grounds for divorce in New York. For instance, typical grounds for divorce usually include: abandonment for at least a year (either physical, or constructive abandonment (the unjustified refusal to engage in sexual relations), inhuman or cruel treatment, the no fault law aka that the marriage has been irretrievably “broken” for at least 6 months, adultery, or living apart pursuant to a legal separation for at least a year.
One matter to keep in mind is that although the terms “domicile” and “residence” aren’t always regarded as the same thing, they have been held as synonymous terms by the courts of New York in determining divorce residency requirements. A domicile is defined as a place that an individual considers to be their home. Determining residence at a legal level can be complex, but various cases within New York have outlined that the following aspects are relevant. For instance, the court will consider: the alleged domicile or place of residence, the amount of time spent in that location, the geographical location of children’s schools, declarations made regarding the permanency of the resident, buying, leasing, or negotiating the building of a home, club memberships and religious locations, payment of personal taxes, place of voting, place of bank account, and area wherein licenses are registered among other indicators.
Importantly, the decision by a spouse to make a temporary move to a new location for reasons associated with their professional occupation, so long as that move wasn’t made with the intent to abandon the home completely, will not count as a reasonable interruption to negate the residency requirement in New York. The definition of the word “residence” has been regarded as synonymous with the word “domicile” to ensure that the residential requirements of applying for divorce within New York are not satisfied completely by no more than the mere physical presence of parties within the state.
So long as at least one spouse meets the residency elements outlined, it is possible to file for a divorce proceeding to take place within a New York Supreme Court. Obviously, the process of applying for a divorce case within New York can be a complex and highly nuanced one. This is why it is so often crucial for parties to access the help of a professional matrimonial and family lawyer during these times, as this individual will give them the experience and guidance they need to ensure that their case is given the proper consideration.
To learn more about the details of family law and divorce within New York, please feel free to browse our various web pages and blog entries for more information. Please also take the opportunity to call about your free initial half-hour consultation at your earliest convenience, it would be our pleasure to speak with you about it.