Jurisdiction & Grounds
I. Can I Bring a Divorce Action in New York? What is Residency?
Depending on which side of the litigation a spouse is on, New York’s laws can be much more generous than the laws of other states.
In order to prevent people from moving from state to state for the sole purpose of picking a state with laws more favorable to them, i.e., “forum shopping,” New York requires that a plaintiff establish a sufficient connection to the State of New York in order to commence a matrimonial proceeding in New York. Proving this connection to New York is commonly referred as establishing “residency.”
Residency can be met by proving that:
- The parties were married in New York, and either party is a resident of New York when the action is commenced and has been such a resident for a continuous period of one year immediately prior to commencement proceeding, or
- The parties have resided in New York as a married couple, and either party is a resident of New York when the action is commenced and has been such a resident for a continuous period of one year immediately prior to commencement of the proceeding, or
- The grounds for the action occurred in New York, and either party has been a resident of New York for a continuous period of one year immediately prior to commencement of the proceeding, or
- The grounds for the action occurred in New York, and both parties are residents of New York at commencement of the proceeding, or
- Either party has been a resident of New York for a continuous period of at least two years immediately prior to the commencement of the proceeding.
DRL § 230.
This then begs the question, who is a “resident” of New York?
Prior to 1976, the term “resident” meant “domiciliary”; however, after an amendment to DRL § 231, “resident” has been regularly interpreted to mean either “domiciliary” or “physical resident.” Guedes v. Guedes, 45 A.D.3d 533 (2d Dept. 2007).
So, who is a domiciliary? Who is a physical resident?
A domiciliary of New York is a person whose “domicile” is located within New York. “A person can have but one domicile at any given time. Every one acquires a domicile of origin at birth, which continues until effectively changed.” In re Sorrentino’s Will, 71 N.Y.S.2d (Surrogate’s Ct., King’s Cty. 1946). “In order to effect a change [of domicile] there must have been proof that the [individual] had freely chosen another domicile and that this choice was followed by physical presence at a dwelling place and the intention to make it a home” In re Johnson’s Will, 259 A.D. 290 (2d Dept. 1940). Thus, to change a domicile, their must be both physical presence at the new domicile and an intent to make that place their permanent residence. In other words, where is the last place that the person physical lived at with an intent to live there permanently?
Whether a person is a physical resident “depends upon whether he [or she] has a significant connection with some locality in the State as the result of living there for some length of time during the course of a year. Wittich v. Wittich, 210 A.D.2d 138 (1st Dept. 1994) (quotations and citations omitted). This can be a rather complicated issue and will involve a weighing of many facts.
For help determining whether residency has been satisfied in your case, feel free to email me at [email protected], or call at (315) 422-1311.
Christopher M. Judge, Esq.
II. What are the grounds for divorce? What is “No Fault Divorce”?
In order to obtain a divorce, the party seeking the divorce must establish “grounds” for the divorce. Each state determines what reasons they believe justify a divorce, i.e., “grounds for a divorce.” In order to receive a divorce, one of those grounds must be proved to the court.
New York has seven different grounds for divorce:
- Cruel and inhuman treatment – Cruel and inhumane treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.
- Abandonment for one of more years– Abandonment of the plaintiff by the defendant for a period of one or more years.
- Confinement for three of more years – Confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.
- Adultery – Commission of an act of adultery by defendant.
- Living separate and apart for one or more years, pursuant to order of the court – Each spouse having lived separate and 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.
- Living separate and apart for one or more years, pursuant to properly executed written agreement – Each spouse having lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. Such agreement shall be filed in the office of the clerk of the county wherein either party resides. In lieu of filing such agreement, either party to such agreement may file a memorandum of such agreement, which memorandum shall be similarly subscribed and acknowledged or proved as was the agreement of separation and shall contain the following information: (a) the names and addresses of each of the parties, (b) the date of marriage of the parties, (c) the date of the agreement of separation and (d) the date of this subscription and acknowledgment or proof of such agreement of separation.
- Irretrievable breakdown of the relationship for six months or more – The relationship between the spouses has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath, and the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts’ fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.
DRL § 170.
It is tremendously important to discuss the final grounds for divorce, commonly referred to as “irretrievable breakdown for a period of six months or more,” or “no fault divorce.” It was passed into law in 2010, only a few short years ago, and has made proving grounds tremendously easier. Rather than having to prove adultery or cruel and inhuman treatment, all that is required is for one spouse to swear, under oath, that the relationship between the spouses has been irretrievably broken for a period of at least six months. This has saved countless unhappy couples a great deal of time, expense, and emotional trauma in having to re-live and prove the couples’ reasons for wanting a divorce.
Although the facts of a particular case may justify obtaining a divorce on grounds other than irretrievable breakdown, irretrievable breakdown has become the most frequently used grounds for obtaining a divorce.
If you have any questions or concerns, feel free to email me at [email protected], or call at (315) 422-1311.
Christopher M. Judge, Esq.