In order for the State of New York to have jurisdiction over the parties to a divorce action the residency requirements of Domestic Relations Law section 230 must be satisfied. There are a number of ways that they can be.
The most common and simplest way is that the grounds upon which this action is based occurred in New York State and both parties are New York residents at the time of commencement of the action. There is no residency durational requirement with this sub-section. Since New York now has no-fault divorce that does not require the allegation of any wrong doing, it appears that the mere presence in the state by a couple with a marriage that has irretrievably broken down will confer New York jurisdiction for a divorce action.
The next most common way to meet the residency requirement is when the parties were married in New York and either party is a resident of New York at the time the action is commenced and has been a resident of New York for a continuous period of one year immediately preceding commencement of the action. This usually is a situation where one party has moved from the state. This type of situation also presents itself when a New York couple moves away and their marriage deteriorates such that one party returns to New York. In such a case they have to wait one year before New York again acquires jurisdiction.
Next, when the parties have resided in New York as husband and wife and either party is a resident of New York when the action is commenced and has been a resident for a continuous period of one year immediately preceding commencement of the action New York has jurisdiction. This is for a case where a couple marries elsewhere and ends up in New York.
Non-New York marriages also are covered by other subsections of Domestic Relations Law section 230. The first provides for New York jurisdiction when the “cause" for the action occurred in New York and either party has been a resident of New York for continuous period of at least one year immediately preceding commencement of the action. Lastly, when either party has been a resident of New York for a continuous period of at least two years immediately preceding commencement of the action New York has jurisdiction for a divorce action. How these factors interplay with no fault divorce is unclear. But it seems that with no fault divorce, the two year waiting period for jurisdiction has become functionally obsolete.
These factors only are jurisdiction for a divorce action. These factors do not determine jurisdiction for issues related to child custody as well as to some other issues to real property that is not in New York. People who have moved to New York recently or who own property out of state should bring these issues to the attention of their attorney promptly at their initial consultation.
A weekly guide with tips and legal advice for each stage of the process.