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Can I file for Divorce in New York State if I just moved here?
July 24, 2018
I have lived in New York for less than one year. Can I file for divorce in New York?
In New York you can only count on certain residential requirements before filing an action for divorce.
They are specific and set forth in the Domestic Relations Law.
You are permitted to bring a divorce action in New York but the best way to do it is to be sure you comply with the residence requirements or your case could be thrown out of court in which case you will not be granted a divorce.
A court has the power to grant you a divorce, separation or annulment under the below enumerated categories:
1. The Parties must have been married in New York State and also one or the other of the two parties is presently a resident of New York when the action is started for a period of one (1) year entire year contiguously prior to the filing of the divorce, annulment or separation action.
2. Both spouses resided in New York, but not necessarily married in New York, as husband and wife and one of the spouses was a resident of New York State at the time of the filing of the divorce, annulment or separation action for one (1) year period just prior to the commencement of the action.
3. The grounds of the divorce action occurred in the State of New York and either party was a resident of New York State continuously for one (1) year period immediately prior to the filing of the action for divorce, separation or annulment.
4. The grounds or cause of action occurred in New York and both parties were residents of this State when the action for divorce, annulment or separation was commenced.
5. Either of the spouses were a resident of the State of New York for a period of at least two (2) years or more immediately prior to the filing of the divorce annulment or separation action.
If you take a look at number “4” above it is very interesting because let us say the husband and wife lived in New York for two months but the husband assaulted the Wife and treated her in a cruel and unusual manner. In this example, the Wife does not have to wait for one or two years before filing her action for divorce, annulment or separation, she can do so immediately.
Other than that, the waiting period is usually one to two years, depending on whether all of the other requirements in each of the above paragraphs are met.
Because of the strict residency requirements be sure to tell your New York divorce lawyer about the circumstances of your residency before hiring a lawyer to pursue your divorce as it is critical for the lawyer to know whether you meet the criteria for filing an action for divorce.
Also, just because the parties do not meet the residency requirements it does not necessarily mean you cannot negotiate an amicable settlement with your spouse out of court. You may also opt to file in a State where you meet the residency requirements so long as all of your financial issues, support issues and custody issues are resolved
In thinking about filing for divorce in New York you must also be aware that even though you might be able to get a judge to give you a divorce sometimes the Court in New York has to defer to another State in deciding the ancillary issues of custody and equitable distribution because there are other laws that dictate whether the Court in New York has the power to dispose of all of the issues in your case. For instance, let us say you own real property in another state and you are contesting how to distribute that property. You will then have to file a separate action in that State for equitable distribution since New York would not have in rem jurisdiction to decide that matter for you.
In sum, this is for informational purposes only and shouldn’t be construed as legal advice so you should always consult with a lawyer before making any decisions as to divorce.