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Jul 2017How do I get custody if my spouse and I live in different states and how do you determine Home State
What is Jurisdiction in a divorce or custody case?
August 18, 2017
What is Jurisdiction in a Divorce and Custody matter?
The analysis for jurisdiction under UCCJEA is VERY different from the analysis as to jurisdiction over a divorce. The analysis is very complicated and fact-specific but I will discuss what I can here.
The measure for jurisdiction under the UCCJEA is residence, BUT the legal measure for divorce jurisdiction under CPLR 302 B and Domestic relations Law Section 230 is domiciliary or residence.
CPLR Section 302B clearly permits a Plaintiff to file his or her divorce action in New York, even if they have a second residence elsewhere under certain circumstances, so long as it is determined that New York was the domiciliary of the moving party. And CPLR Section 302B also gives the divorce court power over the absent spouse who might have moved out of state, so long as the moving party can show New York has a vital interests in the case. This is called Long Arm jurisdiction and this can be shown for instance, if the parties were married in New York, resided in New York for a lengthy period of time, and have real property in New York, file taxes in New York, and the absent spouse derived some economic benefit from New York.
So, even if the parties no longer live in New York, if the Court decides that the moving party never gave up their domiciliary then New York might be a proper place to file the divorce action. So, since Domicile is a matter of intention changing residences without any intent to change domicile does not affect one’s domicile for purposes of filing a divorce in New York. [ **516 Minsky v. Tully, 78 A.D.2d 955, 433 N.Y.S.2d 276 (3rd Dept.1980); Bodfish v. Gallman, 50 A.D.2d 457, 378 N.Y.S.2d 138 (3rd Dept.1976) ], which has been defined as the location where a person “intends to make his home indefinitely.” Estate of Brunner 41 N.Y.2d 917, 394 N.Y.S.2d 621, 363 N.E.2d 346. See also: Miller v. Police Commissioner of the City of New York, 26 A.D.2d 803, 273 N.Y.S.2d 807 (1st Dept.1966).
The test of domicile has been said to be, “whether the place of habitation is the permanent home of a person, with the range of sentiment, feeling and permanent association with it.” Minsky v. Tully, supra. Without more, the fact that one absents himself from his established domicile for an extended period of time does not prove that a change of domicile has occurred. Estate of Chrisman, 43 A.D.2d 771, 350 N.Y.S.2d 468 (3rd Dept.1973). The “evidence to establish the required intention to effect a change of domicile must be clear and convincing.” Minsky v. Tully, supra. A change of residence lacking the requisite intent to abandon the prior state of residence “leaves the last established domicile unaffected”. Estate of Chrisman, supra. An established domicile in New York is presumed to be continuing, and the burden of proof is upon a party claiming that such domicile was succeeded by a later one. Matter of Lydig's Estate, 191 App.Div. 117, 180 N.Y.S. 843; Matter of Newcomb's Estate, supra, 192 N.Y. at p. 250, 84 N.E. at page 954; Matter of Fischer's Estate, 151 Misc. 74, 271 N.Y.S. 101; Dupuy v. Wurtz, supra. A mere contradictory sworn statement as to “residence” is not binding. And the burden is on the Defendant to prove that the moving party intended to make the state she or he moved in her temporary home.
Some attorneys will tell you that DRL 230 c0ntrols jurisdiction-and they would be wrong in large part. That is because DRL 230 is not jurisdictional in nature. The Court of Appeals, in Lacks v. Lacks, 41 N.Y.2d 71, 390 N.Y.S.2d 875, 359 N.E.2d 384, reargument denied, 41 N.Y.2d 901, 393 N.Y.S.2d 1028, 362 N.E.2d 640, held that compliance with DRL § 230 was not fundamental to the court's subject matter jurisdiction. The Court held that the durational residence requirements of DRL § 230 were “merely substantive elements” of the matrimonial cause of action and not a limitation upon their power to hear their case and not a limitation on their subject matter jurisdiction, and that rather the test for jurisdiction over divorce is whether there was a showing that the parties, or at least one of them, have sufficient roots in New York or that sufficient conduct occurred in New York as to warrant New York in exercising its jurisdiction and applying its law to the parties. Second, although DRL230 requires that one party be a residence to New York for one year, “residence”, where the parties have married and resided in New York for a lengthy period of time is loosely construed to mean a place of “domiciliary” and will allow for lengthy absences from the State of New York and will allow for multiple residences outside the State of New York so long as the moving party spouse makes a showing to the New York Supreme Court that he or she never gave up New York as her intended FOREVER HOME, so long as the parties were married in New York and resided in New York during the marriage, and so long as 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.
To conclude, when it comes to divorce jurisdiction, domiciliary it is defined as the intention of a person to make a new residence her FOREVER home. Despite having SEVERAL residences, domiciliary as defined by law, FOLLOWS the party from residence to residence until the party sets up roots in a new Domiciliary. But when it comes to jurisdiction over custody matters, under UCCJEA the standard is physical residence and presence in the state for a period of 6 months.
By Lisa Beth Older
Your NYC Divorce Lawyer