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New York child custody, Manhattan child custody, Brooklyn child custody Lawyer
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Divorce Lawyer. New York child custody, Manhattan child custody, Brooklyn child custody Lawyer.

Articles on New York Divorce Law


What is a separate property credit?
November 6, 2019

What is a separate property credit?

In a New York diovrce case, when a home is purchased with funds acquired prior to the marriage and you put both names on the deed, you may still be entitled to a separate property credit against the sale proceeds of the marital real property if you can trace the source of the fund back to a separate property asset, and if you have not comingled marital funds or marital earnings into that account.

This is because commingled funds, verses mere title transmutation into joint names,  are precepts that are dealt with differently  in their entirety,  under all the case law.  Contrary to merely changing title to the property, the commingling of funds almost always defeats a separate property characterization as well as a separate property credit. 

This is a well settled concept of divorce  law in New York.  The Court must first classify the property at issue as marital verses separate. They next distribute it via equitable distribution at trial.

As to any marital asset acquired with one of the parties' separate funds, even if the asset is classified as marital by the court it is not always distributed equally.  In point of fact, it  is pretty settled law that the person contributing their separate property receives a dollar for dollar credit for any separate property fund.  (see e.g. Juhasz, 59 A.D.3d at 1024, 873 N.Y.S.2d 799; Murphy, 4 A.D.3d at 461, 772 N.Y.S.2d 355; **1044 ***788 Judson, 255 A.D.2d at 657, 679 N.Y.S.2d 465; Heine,176 A.D.2d at 84, 580 N.Y.S.2d 231).. “In these situations, courts have usually given the spouse who made the separate property contribution a credit for such payment before determining how to equitably distribute the remaining value of the asset …”(see e.g. *168 Zurner v. Zurner, 213 A.D.2d 906, 908, 624 N.Y.S.2d 301 [3d Dept.1995]lv. denied 87 N.Y.2d 802, 638 N.Y.S.2d 425, 661 N.E.2d 999 [1995]; Burns v. Burns, 193 A.D.2d 1104, 1106, 598 N.Y.S.2d 888 [4th Dept.1993]mod. on other grounds 84 N.Y.2d 369, 618 N.Y.S.2d 761, 643 N.E.2d 80 [1994] ).

Next, in distributing the appreciation in value of the real estate a court may consider any of the several isted factors enumerated in Domestic Relations Law § 236(B)(5)(d) or any other factor that is equitable in their estimation.  (see e.g. Butler v. Butler, 171 A.D.2d 89, 93–94, 574 N.Y.S.2d 387 [2d Dept.1991]Woodson v. Woodson, 178 A.D.2d 642, 642–643, 578 N.Y.S.2d 217 [2d Dept.1991] ), including each of the parties’ indirect efforts and contributions as well as any passive increase in the market value.

For example, in the first department case of Heine v Heine 176 A.D.2d 77  the Appellate Division credited the husband with the amount of the down payment, classifying it as the Husbands separate property and left only the appreciation in value subject to determination as to equitable distribution at trial.

In the first Department case of Klauer, the court there, the parties sold a marital property and then commingled the sale proceeds of that marital real property with plaintiff’s separate 325K trust fund (big mistake)  and the parties next bought a second piece of marital property out of that commingled fund. There, the court also expressed that Plaintiff’s separate trust fund, which was formerly separate, lost its separate property character when it was commingled with the parties  marital real property sale proceeds. Those parties next bought a second property with these mixed, transmuted, commingled funds so the court properly held that the second purchase was marital.     In other words, the court did not award a separate property credit because of the commingled nature of the source of the down payment,  and for no other reason.  The court concluded, in its support of its decision, and held, that the property was marital not subject to a credit since Plaintiff failed to rebut  the presumption of marital property where the source of the down payment was derived from comingled funds.

But even if there was comingling, the court still recognized the plaintiff’s extraordinary monetary separate contributions of Plaintiff in its distributive award, awarding her 70 percent of the sale proceeds, anyway, this despite the fact that the separate property credit was formally obliterated by the commingling.

By Your Manhattan Divorce Lawyer

Lisa Beth Older

And also see citations referring to case law.


 
Can I modify my New York Divorce?
October 31, 2019

 Can you modify a Divorce Judgment?

There are many times when you may modify marital agreements but always check with a lawyer before attempting to do it yourself because you may only do so if circumstances allow or permit.  As to equitable distribution of real property generally speaking you may not modify this type of agreement or  judgment unless both parties consent to modify the underlying Agreement or judgment of divorce.  However,  you can possibly move for modification under very limited and narrow circumstances, such as a showing of blatant fraud or extreme duress.

Apart from equitable distribution, the terms of a martial agreement and judgment of divorce may indeed be modified under certain circumstances.

First, if  by the terms of the agreement itself, it is modifiable, then you may modify it on consent so long as the execution of the modification document is performed in accordance with the rules of law requiring acknowledgment of the document in a manner prescribed by New York Law.

Or, if you cannot modify it on consent you may petition the court for modification so long as you can demonstrate enough grounds to do so.  For instance, if the Agreement says either party may petition the court for additional custodial time in three years from the date of the execution of the agreement without a showing of a change in circumstances generally the courts will allow that petition to move forward.

While Child custody agreements are generally binding as per the terms of the agreement or divorce judgment, except upon a showing of a change in circumstances, you may apply to the court to modify a custody agreement if you can show a change in circumstances and that the best interests of the children are best met through modification. If one or both spouses wish to relocate with the child, that would be a change in circumstances.  If one party is abusing the child, then that would also constitute a change in circumstances warranting a petition for modification of the child custody order or judgment,

In the alternative,  the parties can modify the agreement on consent between themselves so long as the document is executed and acknowledged in accordance with the Domestic Relations Law. If there is a Family Court Order that needs to be modified and you have an agreement with the spouse or parent, then be sure to go to Family Court to have the agreement so ordered by the court.

As far as modification of the terms of a child support or spousal support (maintenance) order or judgment, this may be possible if one or the other of the spouses becomes unable to work.  Further the increased needs of the child might serve a basis for an upward modification petition.

But you must show a substantial change in circumstances to modify a support order or the court might dismiss your petition.

Do not make the mistake of assuming that because you lost your employment you no longer have to pay under the Order of Support of Divorce Judgment.  Any money that you owe your spouse due to your default under the Order remains owed to the other party even after you file for a modification of your obligation to perform on the underlying order or Judgment.  If you are in fear of not being able to meet your support obligation the best thing to do is make an application for modification before you fall into arrears. If you fall into arrears, it is unlikely that the court will waive those arrears unless you can show why you could not file sooner.  Even then, the likelihood of a Court waiving arrears is rare.

 

By: Lisa Beth Older

Your New York City Divorce Lawyer

 


 
How to get a Divorce in New York
October 23, 2019

 

People always ask me what the residency requirements are in order to get a judgment of divorce in New York State. In order to get a judgment of divorce in New York State usually both parties must live in New York for at least two years. There are exceptions to this rule. The general standard for most divorces is at least one year of residency prior to the filing for divorce. But there are other ways to satisfy the residency requirement. If you or Your spouse has been living in New York for at least one year before the divorce case started and you were married in New York or you lived in New York as a married couple for one year you can satisfy residency. Another way you can satisfy residency is if the grounds for your divorce happened in New York State And both parties have lived in New York for at least one year. Otherwise, if one or the other of you have been residing in New York for at least two years you can get a divorce. The grounds for divorce have changed. There are seven grounds for divorce however the most commonly used one is the so-called no fault ground or otherwise known as irretrievable breakdown in the relationship for six months. You can also still sue one other ground such as cruel and inhumane treatment, abandonment, imprisonment, adultery, divorce after the execution of a separation agreement that has been filed with the clerk of the county, and divorce after there has been a judgment of separation entered.

In New York State the only court that you can go to get a divorce is the Supreme Court. If you want to be the plaintive in the action you must soup for divorce first and serve your husband or wife. We do not have common law marriage is in New York. However, speak to your attorney about this because there could be exceptions such as where there have been partnerships in financial relationships that occurred prior to any marriage.

Just because you sued for divorce does not mean you will automatically get one. Divorces are complicated when the other spouse disagrees with how the property of the parties will be disposed of, child support issues, custody issues, and even spousal support issues.  For more information on these issues always speak to a lawyer before trying to file for a divorce.

If you have financial issues, there is a way to go about resolving them without first going to court. You can apply for the alternative dispute resolution process. During this process you work with an attorney to help find a solution. There are two kinds of processes in this area. There is divorce mediation and there is collaborative divorce. However, when you start your divorce if you have no children and no property you might be able to go about it through the uncontested divorce program. These papers are found online.

If you cannot afford an attorney and you have elected to start your divorce on your own, then be sure that you have someone personally serve your spouse through a third party and be sure that said third-party has executed an affidavit of service before a notary. This affidavit of service must be filed with the county clerk’s office before your New York divorce case may be considered by a judge. The next step, if you cannot settle your custody support and property issues, is to ask for judicial intervention by the filing of an RJ. Usually, within 45 days, you will receive notification from the court that you need to appear in front of a judge. From there, there will be financial disclosure of both parties so that you and court are fully familiar with the financial circumstances of the other. Other appointments maybe had such as experts to appraise real estate and attorneys for the children to represent the children. The process gets very complicated, so do not consider any of the above until you have consulted with an attorney of your choice.

If the parties cannot settle the case the court will eventually set the case down for trial and a judge will determine the issues at hand. Tthe above information is not legal advice nor is it intended to be. It is informational in nature and you should consult with an attorney of your choice as to the above information.

 

By: NYC Divorce Lawyer Lisa Beth OLder


 
Divorce Overview
September 30, 2019

DIVORCE OVERVIEW

A divorce means that you are ending a legal marriage by way of an official judgment promulgated by the court so designated in your State. There is no constitutional right to get a New York divorce, but all the states allow divorces to occur in order to serve the best interest of the public citizens seeking to resolve their issues.

Sometime people need a neutral forum to address their marital grievances and to air out their gripes. But others just want to end the marriage in an amicable fashion, in the form of an Agreement or Stipulation of Settlement which decides the outstanding custody issues, divides up the property and secures support for the appropriate party, if applicable.  Either way, there are formalities which the parties must go through and a separation agreement is not the same as a judgment of divorce.  But some States allow for conversion divorce where after a period the separation agreement can be acted upon to get divorced.

In some states there is something called a cool off period where people must wait a period before filing for a divorce judgment.

Here are two kinds of divorce in this country. One just dissolves the marriage and leaves the ancillary issues up to another state where the real property of the marriage, or res, is located. The other kind of divorce is the most common kind where the court decides all the ancillary issues of support, property distribution and child custody before it grants a divorce.

The Court will require that the parties submit documents to support grounds or reasons for divorce, and these grounds are different in each state.

A divorce changes the legal status of the parties from married to separate and single.  

Most of the States now have no fault divorce as a ground for divorce which means that the parties no longer must plead fault to get a divorce filed.

New York allows parties to sue for divorce on fault grounds but also has a no-fault ground, where the party pleads that the marriage is irretrievably broken for over six months.

The most important part of any divorce proceeding is to determine which parent would be the custodial parent and which parent will have visitation.  While the Courts favor joint custody, the courts will listen to the facts and decide based upon what is in the best interests of the child.

One of the most important aspects of a divorce is how to divide the property that was acquired by the parties during the marriage. In New York, this is called equitable distribution.   The court will first characterize the property as marital verses separate.  Next, the Court, after a trial and evidentiary hearing, will distribute the property between the spouses in accordance with the prevailing statute, rules of equity and case law. In New York Domestic Relations Law (DRL) governs divorce cases.

Lastly a trial court in a divorce action will decide whether and how much child support and spousal support will be paid.

 

 

 

 

 

 

 

By Lisa Beth Older, Esq.

Manhattan Divorce Lawyer

 

 

 

 

 

 

 


 
What happens if I can not afford a lawyer?
July 21, 2019

What happens if you cannot afford an attorney in your New York Divorce or Child Custody case?

 

The basis for a counsel fee award is predicated on the fact that the Law favors leveling the playing field so that one party does not benefit in the litigation by having more money to fight the case.  

If you cannot afford an attorney and you are engaged in a divorce action, then you or your lawyer will have to make an application to the court for attorney’s fees.  It is in the discretion of the court to award you fees, but the presumption is that you are entitled to counsel fees if you are the less moneyed spouse.  The application must be a formal one and you must set forth the law that permits you to an award of counsel fees and the facts that support your application. Also, be sure to attach your sworn net worth statement and your tax return to the back of the application along with the anticipated amount of legal work that you believe your case will take, through to resolution or trial, together with an invoice, if any, of any legal work performed in advance of the application.  

For interim motions if the attorney’s fees be granted, they are granted only temporarily. If the less moneyed party gets a hefty equitable distribution award the court may order reallocation of the funds paid out. 

Counsel fees may also be applied for if there is a Court Order and your spouse is not abiding by the Order.

If you are in Family Court and you are the non-moneyed spouse or litigant for child custody you can ask the Court to appoint you someone from the 18B law guardian panel.

 

By: 

 

Your Manhattan Divorce Lawyer Lisa Beth Older!

 

 


 
DO I HAVE TO TURN OVER MY BUSINESS RECORDS IN A DIVORCE?
June 29, 2019

Do I have to turn over my business records?

 

In a divorce action the Courts no longer focus on fault.  However, a great dal of time is spent on learning about the other party’s assets, particularly if the other party has hidden assets and earnings from the other spouse or if the marriage is a high net worth marriage involving complex business ventures.

A complex set of laws and regulations and court rules will dictate what documents must be turned over to the other side.  At the outset you will have to exchange net worth statements listing your monthly expenses and income as well as your debts and liabilities.  These statements must be sworn to under oath and from a good platform for the attorneys to double check to ensure that the numbers represent the true net worth of each party.  After that, the parties exchange demands for documents in the form of a Notice of Discovery and Inspection, Interrogatories which are informational demand requesting that statements made about your financial situation be sworn by the party answering them, and depositions.

Typically, personal bank statements ranging back to at least three years or more are required to be turned over, but if the marriage is of longer duration then the divorce lawyer for your spouse might ask for additional years of documents. Credit card statements are also the subject of discovery as are personal tax returns, loan statements and pension or retirement account statements, and a wide array of other such documentation. 

Discovery in a matrimonial case is exhaustive and entails a lot of paper gathering.  It is also mandatory that you comply with the requests and if your spouse does not comply then the other attorney may render a deficiency notice as to the items that you failed to turn over.  If you continue to resist the exchange of documents requested of you then the remedies are harsh, such as precluding you from presenting a financial case at trial. You may also be held in contempt if your behavior is contumacious and unrelenting,

 

Thys, it makes sense to start collecting the data needed before you file for divorce so you can give your attorney an idea as to what is at stake.


For privacy reasons, one might ask if the records produced and disclosed are confidential in a New York Divorce action. The answer is found in  Domestic Relations Law § 235(1) which mandates that all papers filed in a matrimonial matter be deemed confidential and not subject to disclosure.  That said, as to your divorce action unlike most other states , New York does not have a common law right to privacy (Howell; Freihofer, supra;Arrington v. New York Times Co., 55 N.Y.2d 433, 449 N.Y.S.2d 941, 434 N.E.2d 1319).

Where discovery in a New York divorce becomes complex is where one or the other party owns a business with partners or investors that expect confidentiality of their records or where one of the spouses is running a real estate venture with other parties or corporations.  Sometimes a spouse will try to hide behind a corporate veil and not disclose business tax returns and business banking accounts because they are privileged under the Federal Privacy laws of New York.  However, if the spouse is the sole shareholder of the corporation the Courts will pierce the corporate veil and make your spouse turn over all these records.

If a spouse is working in the other spouse’s business or if the spouse is at home making indirect contributions such as raising the children, holding corporate parties, or entertaining perspective investors or buyers, then the spouse typically would have an interest in the business but the interest in the business is fractional and depends on how much you contributed to the business. 

You can expect that if a business was started during the marriage or increased significantly during the marriage that the Court will appoint an independent evaluator to review the records, he or she needs to decide as to the value of the business. It would then be up to the court to apply the law to arrive at your fractional interest in the business, if any.

 

By Lisa Beth Older

Your New York City Divorce Lawyer

Practicing in Manhattan
 
WHY CAN'T I GET AN UNCONTESTED DIVORCE?
April 29, 2019

People often ask me whether they can get an uncontested divorce.  That is a very complex question because while both parties may want to get a divorce, they do not realize that securing a divorce means that you must have both parties settle all ancillary issues in your divorce judgment.  The grounds for divorce are probably the easiest part to consent to but is not the last part.  There are many aspects to a marriage that must be resolved before a court can issue a judgment of divorce.  If you have children, you must consent to all terms of legal custody and joint custody and custodial taxes to the children.  This can become very complex when parties live in two different states are two different countries.  It is just as complex if parties live in the same neighborhood because you must come up with a detailed schedule as to which parable have custodial axes on what days and on what holidays.  As for child support, where there are children you must provide for a child support order in your divorce Judgment. That is also complicated because there is a uniform child support standard act guideline that you must follow unless there are reasons to deviate therefrom. And there are a lot of variables to consider before setting child support such as the income of the respective parties, the needs of the children and the ability to pay.   And then there is spousal support.  In New York since 2016, we now have a standard spousal support guideline that the courts often follow, and it sets a chart for the parties to understand whether they need to pay spousal support and how much and for how long.  There are also issues involving property that is acquired during the marriage.  This becomes difficult if one party or the other owns property prior to the marriage but contributes to the down payment on principal during the marriage.  Furthermore, several of my clients don’t understand that pension rights and for one K plans are marital property if a portion of that plan is earned or accrued during the marriage.

These are only a few of the problems that must be addressed in detail in a signed agreement and knowledge to be for notary in a formal manner which is required for the filing of a deed.  Indeed, even if the parties have managed to come to terms, the execution of the agreement is also a complex and should involve a lawyer reviewing your agreement to make sure it is binding. 

There’s also the issue of counsel.   Often if there is an attorney on the other side of the case there will always be issues to resolve because the parties may not have discussed points of law that must be in the agreement. 

I am often heard to say that if there is an attorney on the other side it is not an uncontested divorce.  That is only partially true!  If the Attorney on the other side is reasonable and experienced and not out to change the deal of the parties, then you can have an uncontested divorce.  But in my experience if there’s an attorney on one side of the case there will always be additional work other than filing closing documents and getting an uncontested divorce. 

 

Without solving the above problems in a formal document, a court cannot get you a judgment of divorce.  In fact, it would be error to do so. 

As you can see an uncontested divorce is not as easy as you might think.  That is why it is important to retain an experienced New York Divorce Lawyer familiar with divorce and child custody matters.

 

By Lisa Beth Older

Your Manhattan Divorce Lawyer  

 

 


 
Can I sue for Adultery?
March 21, 2019

 

As a New York Divorce Lawyer,  my clients ask me oftentime whether aultery is still a crime in New York State and whether they can sue their spouse for cheating on them. This article is designed to lend clarity to this issue because spouses that are hurt by a cheating spouse need answers to this.  Penal law section 255.17 states that you can be found guilty of adultery if you or your spouse has sexual intercourse with another person during that time that you are married.  However, you cannot actually depend on the State to prosecute anyone for adultery because the state of New York usually does not act against the perpetrator. There have been only approximatley 13 convictions for adultery over the last forty odd years and these convictions were attendant to and related to other more serious underlying crimes.  This is because New York chooses not to prosecute adultery as a crime as a matter of public policy. 

As for divorce in New York we have several grounds upon which to seek a divorce and again, one such ground is adultery.  So, you can still sue for adultery but that does not always mean you will prevail because there are higher standards of proof that must be met for divorce courts you get you relief under those grounds.  Also, while you can sue for adultery, since New York State has added irretrievable breakdown of the marriage as a ground for divorce the courts favor this as ground and you will be encouraged to proceed forward on this ground because it alleviates the court from having to have a trial on grounds. This is encouraged because, quite frankly, grounds no longer impact decisions on equitable distribution and support and child custody unless the factual basis of said act is so severe and egregious that it warrants special equitable relief.

For instance, for adultery to form a basis for any part of an equitable distribution award, you will have to prove in court that the adultery directly impacted that economic issue.  An example of this might be that the cheating spouse may have spent some or all the marital assets on his or her paramour.  In that instance a court will make an allowance for that amount and in its discretion try to reward the aggrieved spouse that amount which was spent on the extramarital affair.  Another example as to how adultery might affect a divorce is has to do with custody.  If the adultery was committed in a careless manner in front of the children or in an explicit manner and as such had an upsetting direct impact on the children, then a court might consider that as one of a myriad of factors in its determination as to what custodial arrangement would be necessary in the best interests of the children. Usually, however, a mere affair will not alter the way a court arrives at a custodial award.

Accordingly, if you are staying married because your spouse threatens that you will be punished for your adulterous act it is probably not a good reason. Most New York Courts do not concern themselves with grounds when making rulings for support, custody and distribution of property and it will probably have no impact on the result of your New York Divorce and your New York Divorce Lawyer will likely so advise. If after reading this article you are still convinced that you want to sue for divorce on the ground of adultery, then you must realize that you have a higher standard of proof. You can not just take the stand and tell the Judge you believe your husband or wife had an affair. Rather, in providing adultery you must have a witness other than yourself testify in a compelling manner that your spouse had sexual relations with a person outside the marriage and usually that person will be an investigator with corroborative media evidence such as a video or photographs of the spouse during the act.  There are also defenses that your spouse can raise against an adultery allegation such as the fact that you might have agreed to an open marriage where both spouses agreed to extramarital affairs, you might have forgiven your spouse, or you might have cheated on your spouse as a form of revenge.

So, while New York Courts will still hear your case on the grounds of adultery, it is a cumbersome and costly process that involves airing your dirty laundry in a court of law and is unnecessarily expensive.

To conclude if you are looking to file for a New York divorce then the best grounds to precede on would be a no-fault divorce, or irretrievable breakdown of the marriage. Using this ground no proof is required to be had, and the plaintiff merely alleges and states that the marriage has broken down for a period of in excess of six months.


 
What is a Child CustodyForensic Evaluation?
February 25, 2019

The Role of Forensic Evaluations in Child Custody cases.

 

In all New York child custody cases that are high conflict the court will usually appoint a psychological evaluator to conduct testing and to render a report to the Court. 

 

Often times these evaluators are referred to as independent forensic psychological evaluators. In such cases, the parties are usually required to pay for these evaluations prorata to their income. In divorce cases in Supreme Court the court usually requests that the attorney submit alternate private names of evaluators and the court will then choose between these names in the appointment of the evaluator. The Court also retains a list of experts that they often rely upon as reliable.  However, in family court, you may request that the court order a risk assessment report rather than a full-on forensic evaluation which is less costly and sometimes free of charge. It is sometimes less through then an independent evaluation, but I have seen very good risk assessment reports coming out of Family Court cases in New York County.

 

Whether or not a court will order these types of evaluations is within the sound discretion of the court. These reports are oftentimes provided free of charge. The opinions of these experts are given substantial weight in court. The risk assessment reports generally involve the expert interviewing the parties and the subject child and witnessing the subject child in the care of both respective parents. This is a process that takes a couple of months to complete. Once the process is completed the forensic evaluator will render a report to the court and the parties.

 

I find that the risk assessment reports are generally very useful when both parties are of limited resources. The professionals that execute these reports are usually psychologists trained in family court matters of this kind. These Reports, while given substantial weight, are not the end all in the determination as to which party is granted custody.

 

The risk assessment report is different from the independent forensic psychological evaluation in the sense that the independent forensic evaluation is more comprehensive and is likely to cost more money. However, the goal is the same, which is to provide the court with some insight into the more scientific elements of child custody. The courts also rely upon the attorney for the child. The attorney for the child can make motions and argue for the rights of the child. The court also rely upon the testimony and evidence proffered at the trial. In the end, it is the weight of the evidence that the court is most concerned about in rendering its custody decision.

 

All parties are encouraged to cooperate politely with all forensic evaluations and attorneys for the children. That means, appear for all sessions required of you and be honest and forthright. It does not help to lie or try to portray yourself as someone you are not because the psychological evaluators will be able to figure that out. That does not mean that you should not be prepared by your New York Custody attorney prior to you entering into a forensic evaluation.


 
What is jurisdiction in a New York Divorce Case?
February 4, 2019

            A court in a matrimonial case may only begin to assert its power over persons in a divorce case once it has been shown that service of process was perfected in accordance with DRL 232. 

            Before a court may entertain a matrimonial action the Courts in every case derive their power by Statute, and while a Court has vast discretionary powers, one power it does not have is to confer jurisdiction onto itself.   As such jurisdiction amply means the power of the court to act.  There are many types and definitions of jurisdiction and they all mean different things,

            As such, before a court will take your divorce case several hurdles and steps must be met and satisfied before a court can act.

            One of those Statutes is DRL Section 232. DRL Section 232 governs service of process in matrimonial actions and is very explicit when it comes to how a court assumes personal jurisdiction over the body of the Defendant. The statute expressly sets forth that pleadings must be served upon the actual person of the Defendant, or, in the alternative, and upon the application of Plaintiff Defendant be served by substituted service in a manner prescribed by the Order. Also, you must show that no more than 120 days have elapsed since the filing of the divorce action.

Then, there is a second step that a court analyzes before it decides to keep your case. These concepts are especially important in a divorce in New York where children or property are at stake and where the spouses now reside in different states.

There are two additional forms of jurisdiction, in rem over marital status and in personam over individual spouse, where the Defendant was properly served with service of process pursuant to statue.   As to in rem jurisdiction a court may not entertain a divorce action unless one of the applicable provisions regarding residency requirements is satisfied. 

There are five residence requirements that must be met before you can have a divorce heard in New York.  DRL Section 230 expressly sets forth when an action for divorce may be maintained in New York:

 

DRL Section 230 states as follows:

“An action to annul a marriage, or to declare the nullity of a void marriage, or for divorce or separation may be maintained only when:

1. 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

2. 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

3. 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

4. The cause occurred in the state and both parties are residents thereof at the time of the commencement of the action, or

 

5. 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.”

                       

DRL § 230 is an additional requirement which is imposed that requires that the court have a proper basis for exercising rem or personal jurisdiction over a nonresident.  However, durational residence requirements contained in DRL § 230 are “merely substantive elements” of the matrimonial cause of action and not a limitation upon the subject matter jurisdiction of the Court to hear the case.  Since DRL Section § 230 does not limit the power of the divorce court to adjudicate your matter, if the court does not dismiss on the grounds that Section 230 of the DRL was not met, you may not use that defect to appeal the divorce judgment.  However, the Plaintiff must later prove that DRL § 230 has been satisfied, so it makes no sense to litigate a divorce in New Yok unless you have satisfied the residency requirement of DRL 230.

            Once these questions are addressed, if you have children you must also look to the UCCJEA for guidance as to where a child custody case should be commences or entertained.  For more information on that you should consult UCCJEA.

            In general, the UCCJEA vests continuing jurisdiction" for child custody litigation in the child’s "home state," which is defined as the state where the child has resided with a parent for six consecutive months prior to the commencement of the proceeding (or since birth for children younger than six months). If the child has not lived in any state for at least six months, then the courts of two competing states must look at the child’s significant connections with the state.

            You should consult with a New York Divorce lawyer since the statute and the requirements which must be met in competing jurisdictions is complex.