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WHAT IF MY SPOUSE LIVES IN A DIFFERENT STATE?
July 11, 2017
CPLR Section 302 B tells spouses in New York whether New York has the power to adjudicate their divorce when one or both members of the family move to another state.
Under CPLR Section 302 B, if the parties were married in New York and if one spouse moves out of State then New York can still hear the divorce case so long as the remaining spouse had resided in New York or was domiciled in New York for a period of one year immediately before the commencement of the divorce action. The difference between domiciliary and residence is critical and will be defined below as it impacts upon the ability of a New York Court to hear a divorce case where the parties were married in the State of New York but have multiple residences, or if one of the spouses are just temporarily out of state. Residence simply means physically present in the state of New York. For purposes of Domestic relations Law Section 230 although the statute requires that one party be a residence to New York for one year, “residence” is loosely construed to mean a place of “domiciliary” and will allows for party’s residential absences from the State of New York where the party absent from the state shows through a set of facts that New York has a vital interest in hearing the case, such as real property being located within the four corners of the State or a business being conducted in New York from which the parties inure a benefit. That on top of the fact that one of the parties never intended on making another State its forever home. This, if the petitioning spouse has moved out of State but considers New York his or her home, and votes there, and maintains a driver’s license there and has other such showings and indicia of fact showing a permanent intent to retain New York as their forever home then New York may decide to keep jurisdiction over the divorce and hear the case despite the parties being absent from the State so long as they were married in the State. In fact, no other court would have the power to adjudicate a division of real property that is in the State of New York or adjudicate other such equitable distribution of the parties’ assets, and the parties are unable to stipulate to jurisdiction because a court is the only one that can decide if it has power to hear the case. However, the parties can stipulate to facts and then let the courts decide who has the power to hear their case.
So, what happens if one petitioning spouse is domiciled or resides in New York and one spouse moves away and makes another state their forever home? Under the New York Long Arm Statute, New York can have power to adjudicate issues of the divorce over a absent spouse so long as prior to their physical separation from each other New York was the matrimonial domicile of the parties.
As for the power of a court to hear issues involving custody over the parties’ children, that is more complex and is governed by an entirely different set of laws that define residence literally rather than figuratively. The UCCJEA as defined by DRL Section 75-a, and simplified herein by way of example, requires that in order to make an initial custody determination the parties reside in New York for a period of six months, with the child. While certain temporary absences are allowed (as more defined in recent case law) that will not interfere with eh six month residency requirement, if the petitioning party has made a permanent move to another State , then changes his or her mind and returns, that is not a temporary absence according to a new New York case entitled M.G. v. C.M., July 7, 2017, the Hon. Judge Sunshine presiding. I represented Plaintiff in that case and after extensive hearings that culminated in a written slip decision counsel was provided with more guidance as to what is considered a temporary absence for purposes of the UCCJEA child custody law.
To conclude, jurisdiction is complicated and that is why if you and your spouse live in different statesit is wise to consult a lawyer in New York before you file for divorce, as the fact is, that the law of jurisdiction is so different in custody cases and divorce cases that it is possible that one state will have to hear and determine equitable distribution and spousal support and one state will have to hear the custody case. See the case of Vanneck v Vanneck 404 N.E.2d 1278.
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