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What Happens if I am married and have a case in Family Court?
December 10, 2018
What Happens if you have a case pending in Family Court and one in Supreme Court?
Married couples that have filed for relief in Family Court for a family offense, for custody visitation or support often go to Family Court as a first resort.
However, if that case leads to a divorce then one or the other of the attorneys will typically file a Supreme Court action and will have to notify the Family Court at which point the Family Court will encourage the parties to remove the Family Court cases to join in with the Supreme Court divorce case.
The attorneys do this by filing an Order to Show Cause in Supreme Court under the divorce index number asking the Supreme Court to remove and consolidate all actions under the divorce case.
These motions are typically granted for judicial economy purposes. This also benefits the litigants because now they only have to go to one court appearance per adjournment rather then to have to litigate their issues before two separate courts. Only people who are married can file in both courts.
Unmarried parties with an intimate relationship between themselves must file in Family Court and can do so on all issues that arise other than equitable distribution of property and for a decree of Divorce.
The question often arises as to where to file an action in Family Court and Supreme Court. In Family Court you can seek relief if the children resided in New York for a term of six months whereas in divorce actions in Supreme Court there are different residence requirements which you must meet. If you do not meet these residence durations requirements set forth in the statute then the Court has the power to dismiss your case and often times will so be sure to ask your attorney about jurisdiction.
For example, and there are several different bases for jurisdiction in Supreme Court, under the law as set forth in DRL Section 230 the husband and wife must have been residents of the State of New York at the time the action is started and the Husband or wife must have been living in New York for at least one year. Another basis for jurisdiction which must be met before filing in Supreme Court is that the parties were married in New York and one or the other of the parties has been continuously residing in New York for a period of one year as of the date of the filing for the action for divorce. The third basis is the cause of action occurred in New York and either of the parties was living in New York for one year and the last basis for jurisdiction is that either party has lived in New York for two years. If you do not have jurisdiction under the above four instances then you can still file in Family Court for immediate relief so long as the children have resided in New York for at least six months and if there are no children you might still be able to file for emergency relief in Family Court. But Family Court has its own rules and regulations as to when it is appropriate to file in family Court so you should check that before you go file any petition, especially as it pertains to custody because if you have not lived here long enough the Family court can refer you back to the State where you have lived for the longest period of time. Jurisdiction can be complicated so it is advisable to speak to a New York Divorce Lawyer before filing any petition.