Divorce is a matter that is left up to the states to decide. As a result, each state will have its own laws regarding divorce. This includes everything from grounds to divorce, to child custody arrangements, to the amount of time the parties to divorce must reside in a state to obtain a divorce there.
In New York, the residency requirements are quite specific. There are a number of ways to establish the residency requirement that allows a person to get a New York divorce.
Residency always needs to be established in a New York divorce case, but there are a number of reasons why doing so may pose a problem. It may be an issue to establish residency, for instance, if:
- One spouse has already left the state;
- Both spouses have already left the state; and
- The marriage ceremony and obtaining of marriage license did not take place in New York
The reasons these circumstances may pose a problem will be examined in the next section, where we see what requirements must be met in order to establish residency in New York to get a divorce.
The requirements for how residency can be established are a little bit confusing. Just because a person currently lives in New York does not necessarily mean they meet the residency requirements for getting a divorce in New York.
A couple wishing to obtain a divorce in New York must meet at least one of the following:
- If the couple was married in the state of New York, and one spouse still lives in New York, and they must have lived there continuously for at least one year at the time of filing for divorce;
- The couple lived together in New York during the marriage, and, at the time of filing for divorce, one spouse has continuously resided in New York for at least a year;
- In cases where the couple did not get married in New York, and did not live there together during the marriage, one spouse must show that they have lived in the state continuously for at least two years;
- If the grounds for filing for divorce took place in New York, both spouses were living there at the time, and one spouse has lived in the state continuously for at least one year at the time of filing; and
- Finally, if grounds for divorce took place in New York, and both spouses still live in New York at the time of filing for divorce. There is no time requirement for establishing residency when both spouses still live in New York.
A New York court will have to establish the residency requirement in at least one of the above ways in order to take the case and grant a divorce. This is because a court must establish jurisdiction, or its legal right to hear a case. Here, if you meet the residency requirements for a divorce in New York, then the jurisdictional requirement has also been met.
Additionally, grounds for divorce in New York must be established. There a multiple grounds for divorce which may be cited in a petition for divorce. A no-fault divorce is also an option in New York.
A spouse who files for divorce (the plaintiff) must provide notification to the other spouse (the defendant) of doing so. Both parties to a divorce are entitled to have a say in the matter. If the defendant spouse does not contest the divorce, then a no-contest divorce may proceed. This spouse must sign a document called the affidavit of defendant. If they do so without any problems, then it will not be necessary to serve them with papers.
If there is a question as to whether the defendant will sign and return the papers, then they will need to be served on them. This must be done within 120 days of the date of filing for divorce in New York by the plaintiff. The papers will need to be hand-delivered by someone authorized under law to serve them.
As we have seen, residency requirements can be confusing, and they are only a small part of the legal proceedings related to obtaining a divorce The divorce process is already difficult on the parties as it is.
So, if you are concerned about understanding New York divorce law, you may want to contact a divorce attorney who practices in New York and is familiar with its laws and court systems. You may also want to hire an attorney is your divorce is contested. An attorney can help defend your interests.