Each State has its own laws concerning matrimonial and family law actions, including pre-filing requirements, rules for the division of assets, and different legal procedures and processes. Before a case can be commended, one of the parties must meet certain residency requirements, which are specific to each State.
New York recognizes 5 different criteria that will determine a person’s resident status, and at least one must be met prior to the start of a divorce action. If none of these residency requirements are not met, then New York will not have jurisdiction over the case and the action cannot be filed.
NY Residency Requirements
- The parties would have to have been married in this state and either party would have to be a resident of New York state when the action is commenced and have been a resident for a continuous period of one year immediately preceding the initiation of the lawsuit or;
- The parties would have to have resided in New York state as husband and wife and either party would have to have been a New York resident when the action was commenced and also have been a New York resident for a continuous period of one year immediately preceding the initiation of the lawsuit, or;
- The ground for the lawsuit would have to have occurred in New York state and either the husband or the wife would have been a resident of New York state for a period of at least one year prior to the start of the lawsuit, or;
- The ground for the lawsuit occurred in New York and both parties are residents of New York at the time the lawsuit started, or;
- Either party was a resident of the state of New York for a continuous period of two years immediately preceding the commencement of the lawsuit.
Important Jurisdiction Information
Many parties who are new to divorce often believe that both spouses must be residents of New York in order to begin a case in the state. This is a common divorce misconception and not true. Only one person must be able to establish and prove residency for New York to have jurisdiction over the case. The plaintiff does not need to be a resident of New York to file here, as long as the defendant is considered to be a resident.
There are many instances where both parties are residents of New York, but live in different counties. In cases such as this, it is common for the plaintiff to file for divorce in the county in which they reside, however, it is not a requirement. Determining which county to file in when each spouse lives on opposite ends of the state is very case specific, and should be discussed thoroughly with an attorney during a consultation.
How to Establish Residency
In order to file for divorce in New York, a party must establish residency. Doing so is not hard, and can be accomplished by gaining employment, registering to vote, changing your address, or getting a driver’s license or other state issued identification card.
The New York Unified Court System allows litigants to prove their residency while filing a sworn complaint, which is typically included with the Summons for Divorce. The Summons and Complaint will state which county the divorce action will take place in, which is usually determined by where the filing party lives. For instance, the document may say, “The basis of venue is Plaintiff’s residence. The plaintiff resides at 44 Court Street, Suite 1210, Brooklyn, New York 11201”.
Moving after Filing
Assuming there are no children involved in the divorce, either party is free to move after a case has been filed, without the relocation impacting which county or state has jurisdiction over the action. If there is a child custody case in conjunction with the divorce, then the court has the right to prevent a party (or parent) from moving before a final order regarding custody is granted.
Relocating with a child, whether before or after a divorce or custody case is concluded, is tough and requires permission from the court. A judge bears the responsibility of determining if they should grant the relocation petition while taking into account a few different factors. These include: why a parent wants to move (new job, for instance), the relationship between each parent and the child, and whether or not the long distance move would negatively affect the relationship between parent and child.
Relocating with a child during a divorce case is difficult, and requesting permission from the court is a very tedious and meticulous process. Attempting an action such as this without hiring an attorney is not recommended. An in-depth discussion on relocating with children during divorce can be found on Brian D. Perskin & Associates P.C.’s blog.
Schedule a Consultation
If you have determined that you meet New York’s residency requirements and are ready to file for divorce, you need to schedule a consultation with an attorney. The NYC based family firm of Brian D. Perskin & Associates P.C. offers free consultations to residents of the five boroughs and Long Island, proving thorough information regarding matrimonial and custody disputes. For more information, contact Brian and his team at 718-875-7584 to schedule a confidential consultation today!