A couple who wishes to divorce or annul a marriage in in New York must fulfill the state’s residency requirement under Section 230 of the New York Domestic Relations Law. To meet those requirements, the law requires that:
- The parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
- The parties have resided in this state as husband and wife and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
- The cause occurred in the state and either party has been a resident thereof for a continuous period of at least one year immediately preceding the commencement of the action, or
- The cause occurred in the state and both parties are residents thereof at the time of the commencement of the action, or
- Either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action.
Meeting the residency requirements is crucial, lest your case be dismissed. If at least one of the above situations does not apply to you, chances are good that you cannot get divorced in New York.
How is residency proven?
Simply owning a home in New York may not be enough to prove residency in a court of law. You must be able to prove your home is your primary residence (or domicile). If neither spouse actually lives in New York, there is a good chance New York does not have divorce jurisdiction even if one or both spouses own real estate there.
To determine residency, the courts may review any of the following factors:
- How much time is spent in the residence
- Which house is listed as the primary residence on taxes
- Where the children attend school (if applicable)
- Where the spouses do their banking
- Where compensation is sent
- Business licenses
- Drivers’ licenses
- Community involvement
Residency can be a very tricky question in some divorces. For example, parties may live together in New York for years, and go their separate ways years later, residing in different states. A spouse may then move back to New York and want to file for divorce – but still has not met the residency requirement to do so. This spouse may need to either consider filing in a different state that does have jurisdiction, or simply waiting until they meet the one-year rule. Other cases involving spouses with multiple homes and even foreign citizenship may be trickier still!
Berkman Bottger Newman & Schein LLP addresses all of your questions and concerns regarding residency requirements. Our matrimonial law attorneys provide knowledgeable guidance to clients in New York City, Westchester, and New Jersey. To schedule a consultation, please call (212) 466-6015 or fill out our contact form.