We were married in Davie Florida, we now are both new york residents as of 2021. is it best to file our divorce in NYC? cost?
5 attorney answers
Residency and Grounds
Before you file for a divorce in New York State, you must (1) meet the residency requirement, and (2) have a "ground" for the divorce; a legally acceptable reason for the divorce.
There are a few ways to meet the residency requirement of New York State:
Either you or your spouse have been living in New York State continuously for at least two years before the divorce case is started;
Either you or your spouse have been living in New York State continuously for at least one year before the divorce case is started and (1) you got married in New York State, or (2) you lived in New York State as a married couple, or (3) the grounds for your divorce happened in New York State;
Both you and your spouse are residents of New York State on the day the divorce is started and the grounds for your divorce happened in New York State.
[Domestic Relations Law § 230]
There are seven grounds, legally acceptable reasons, for a divorce in New York State:
irretrievable breakdown in relationship for a period of at least 6 months
This ground is usually called a no-fault divorce. To use this ground, the marriage must be over for at least 6 months, and all economic issues, including debt, how the marital property will be divided, and custody and support of the children have been settled.
cruel and inhuman treatment
To use this ground, the Judge will be looking for specific acts of cruelty that happened in the last five years. It is not enough that you and your spouse had arguments or did not get along. The cruelty must rise to the level that the Plaintiff is physically or mentally in danger and it is unsafe or improper for the Plaintiff to continue living with the Defendant.
To use this ground, the spouse must have abandoned the Plaintiff for at least one year or more. Two examples of abandonment: where the spouse physically leaves the home without any intention of returning or where the spouse refuses to have sex with the other spouse, this is called "constructive" abandonment.
To use this ground, the spouse must have been in prison for 3 or more years in a row. The spouse must have been put into prison after the marriage began. The Plaintiff can use this ground while the spouse is in prison or up to 5 years after the spouse was released from prison.
To use this ground, the Plaintiff must show that the spouse committed adultery during the marriage. This ground can be hard to prove because evidence from someone besides the Plaintiff and spouse is needed.
divorce after a legal separation agreement
To use this ground, the Plaintiff and Defendant sign and file a valid separation agreement and live apart for one year. The separation agreement must have specific requirements included to be valid.
divorce after a judgment of separation
This ground is not used very often. To use this ground, the Supreme Court draws up a judgment of separation and the married couple live apart for one year.
[Domestic Relations Law § 1
If neither of you moved to New York until 2021 and you are both residents of the state of New York at the time of the commencement, you would also need to have resided in New York for six months if you want to use the no-fault grounds for divorce.
You should consult with an experienced matrimonial attorney.
Advice on this forum is for informational purposes only and should never be mistaken as a substitution for legal advice. Answering a question does not create an attorney client relationship. If you need legal advice, you should consult or retain legal counsel.
As the other NY Divorce attorneys have mentioned, there are a lot of details to consider regarding residency, but it sounds like NY is the place you should plan on divorcing. I suggest you get in touch with an attorney directly to discuss how/when you meet the residency requirements and what you can/should do now to prepare for your divorce. Careful planning in most instances will help reduce the costs and headache. Good luck!
All of Ms. Brown's responses to questions posted on AVVO are intended as general information based upon the facts stated in the question, and are provided for educational purposes of the public, not any specific individual, and her response to the question above is not legal advice and it does not create an attorney-client relationship. Ms. Brown is licensed to practice law in New York. If you would like to obtain specific legal advice about this issue, you must contact an attorney who is licensed to practice law in your state.
New York is the appropriate state to file for a divorce however, you must meet the residency requirement before filing:
1. Either you or your spouse have been living in New York State continuously for at least two years before the divorce case is started; OR
2. Either you or your spouse have been living in New York State continuously for at least one year before the divorce case is started and (1) you got married in New York State, OR (2) you lived in New York State as a married couple, OR (3) the grounds for your divorce happened in New York State;
Since New York become has become a "no fault" state, most attorneys will file your divorce under DRL 170.7, Irretrievable Breakdown of the Marriage
Anne Peyton Bryant, Esq.
Bryant & Bleier, LLP
299 Broadway, Suite 708
NY, NY 10007
My colleague said it all.
Based upon your brief question, and assuming you and your spouse are on the same page, you could negotiate a Separation Agreement now, and essentially make your respective beds to move on. As unlikely that a Court has jurisdiction to do a divorce now as you do not appear to meet the residency requirements for a NY Court to handle your divorce, you can wait until the residency requirement is met and then do the divorce. If you already have the separation agreement, the divorce action is essentially paperwork because all of the other issues are resolved in the Agreement, and you would likely be asking the court at the time of divorce to in essence make everything you've agreed to an Order of the Court.
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