How strict are residency requirements for getting a divorce in NY?
February 17, 2015 4:02 PM   Subscribe

I am about to start a divorce process. I was in NY for couple of year and got my marriage certificate from NYC clerk. As part of separation I moved to NJ last October. Now, as I start the divorce process, I am wondering how strict are the courts about residency requirement.

From what I read on the internet, NY has 1 year residency requirement. I believe NJ also has 1 year requirement for residency. Hence, as per internet, I should continue to stay in NJ and file for divorce when the year is up.

I talked to a lawyer and he was of the opinion that if I can get an address in NY, the residency requirements can be managed. Fortunately, I can move back to the same address where I stayed for more than a year. The lawyer said that we can use that address to establish residency in NYC and proceed with filing for divorce right away.

But I am not convinced. I am worried that if I file for divorce in NY now, it would get thrown out on technicality. So, here are my questions:

1. How serious are courts about 1 year NY residency requirement?
2. Are there many cases which have been denied based on this technicality?
3. Will it matter that the person was in NY for 1.5 years before moving out for couple of months? Or can the judge be lenient about not throwing out the case in this scenario?
4. If it comes out that I didn't meet the 1 year residency requirement, will it have an adverse effect on my case?

It has been a tough time even deciding that I want a divorce and these additional complications are frustrating. I just want to move forward with divorce as quickly as possible and put this nightmare behind me.

On preview: there was an earlier post discussing how residency in a state is established. But I couldn't get a conclusive answer from it. Can I prove or get a formal document that I am still an NY resident?
posted by questionsquestions to Law & Government (12 answers total) 1 user marked this as a favorite
 
Not really answering, but unless you are divorcing with cause, you have to have a lethal separation when divorcing in NY. Check into that when thinking about it as well.
posted by kellyblah at 4:11 PM on February 17, 2015 [2 favorites]


I think kellyblah means legal... though I can imagine there are times when people wish it could be lethal.
posted by ovenmitt at 4:16 PM on February 17, 2015 [23 favorites]


Also kellyblah is wrong. This is a complex area. You have a lawyer, trust your lawyer -- if you don't trust your lawyer get another one. Legal advice from people on the internet is worth exactly what you pay for it. IAAL. IANYL. IANAMatrimonialL. This is not legal advice.
posted by The Bellman at 4:37 PM on February 17, 2015 [2 favorites]


If you are concerned, get a second opinion from another lawyer. Don't wing this. I am a lawyer. I am not your lawyer. This is not legal advice, but advice to seek legal advice.
posted by Ironmouth at 4:56 PM on February 17, 2015 [4 favorites]


Kellyblah's information is outdated; NY now has a "no fault" type divorce. I filed my papers with no lawyer using this site , which also has info about residency.
posted by metasarah at 5:37 PM on February 17, 2015


Specifically: "You may file for divorce in New York if you meet one of these residency requirements:

Either you or your spouse has lived in the state for at least two years immediately leading up to the date you file for divorce;
Both you and your spouse live in New York at the time you file for divorce and the cause for the divorce occurred in New York; or
Either you or your spouse has lived in New York for at least one year immediately leading up to the date you file for divorce and:
your marriage took place in New York; or
you and your spouse lived in New York during your marriage; or
the cause ("grounds") for the divorce occurred in New York.*
* NY Dom Rel Law ยง230"
posted by metasarah at 5:39 PM on February 17, 2015 [1 favorite]


If it comes out that I didn't meet the 1 year residency requirement, will it have an adverse effect on my case?

IAAL but IANYL and this is not legal advice, but as a practical matter, yes - failing to meet the residential requirements will have an adverse impact on your case. Worst case scenario, your spouse contests it and it's dimissed before it's done, delaying the case, or even worse worst case, your spouse contests it after the fact and the divorce decree is null and void for lack of jurisdiction.

If you investigate beneath these residency requirements, you'll find that courts have them as a basis of jurisdiction over the parties. With no jurisdiction, courts either can't do anything or the things that they do have no legal effect.

Will it matter that the person was in NY for 1.5 years before moving out for couple of months? Or can the judge be lenient about not throwing out the case in this scenario?

Did you live in NY for one year immediately preceding filing for divorce? Yes or no? Also as a practical matter: if your lawyer is giving you ways to skirt jurisdictional requirements, find a new lawyer yesterday.
posted by mibo at 7:20 PM on February 17, 2015 [1 favorite]


Seconding mibo -- messing around with jurisdictional issues is a super super bad idea. And no, judges don't have discretion to be lenient about jurisdiction.
posted by holborne at 8:38 PM on February 17, 2015 [1 favorite]


Seconding The Bellman's advice wholeheartedly. I say this as someone with the same profile, and I would also add that I recently went through the divorce process in NYC (though there were no jurisdictional issues). If you aren't comfortable with your attorney and would like a second opinion, you can MeMail me for contact info for my attorney.
posted by Conrad Cornelius o'Donald o'Dell at 9:03 PM on February 17, 2015


I am a divorce processor. I am not your divorce processor.

Yes, the residential rules are hard and fast. At this point it may be better for you to stay in NJ, where there is no separation requirement, but either party must have been a resident of the state for at least one year.

New York does no-fault divorces now. Here's what I have in my notes (must meet one of the following):
Either party has: resided in NY for 2 years
Either party has: resided in NY for 1 year and 1 of the following is true:
- The parties were married in NY state
- The parties have resided as husband and wife in NY state
The parties separated in NY and either party has resided in NY for one year
The parties separated in NY and both parties were residents of NY.

Hope this helps. Divorce can be confusing!
posted by fiercecupcake at 7:00 AM on February 18, 2015


Thanks for the answers. I am trying to get a second opinion and your answers and thoughts help me ask intelligent questions.

Fiercecupcake, about the list of conditions that you listed .. these two seem interesting to me and i will ask my lawyer about these.

The parties separated in NY and either party has resided in NY for one year
The parties separated in NY and both parties were residents of NY.

Both of us were residents of NYC for a year and we separated while we were living in NYC ...

A follow-up question is how do I establish a residency in NYC and if I move out of state for say 3 months, intending to come back after that time, do i lose the residency?
posted by questionsquestions at 9:43 AM on February 18, 2015


IAAL IANYL TINLA. My impression is that uncontested divorces in NY are scrutinized... erratically. Lots of things can slip through that shouldn't and some may be held up for tiny things. For a divorce that is truly uncontested (both agree and want to divorce, both agree on all the financial and property terms, both trust that neither one will be looking for ways to hurt the other down the road, etc), individuals could potentially make a cost benefit analysis and consider that it's worth a try to cut certain corners and if things get held up, they get held up and can be dealt with quickly and amiably later. A lawyer should probably not be suggesting that.

If there are any complications with anything, then the potential cost goes way way up compared to the potential benefit (as milo outlined) and it's very important to take the time to dot i's and cross t's.

With regard to residency - it's a kind of fuzzy territory. For example, standards for residency might be different for getting in state tuition than for paying state taxes than for maintaining health insurance than for keeping a lease as your primary residence. For most purposes a constellation of factors *may* be considered. A good lawyer should also be able to help you figure out a sensible cost benefit analysis for claiming residency.

Go consult lawyers. Most matrimonial lawyers do a free initial consultation. Find one you feel like and trust for and confidence in. The money you eventually spend on a lawyer will be very well spent and save you potentially much more. There are many lawyers who practice in both NJ and NY - I recommend finding one of them so that they can really give you good advice about the where is best, in your personal case, to file.
posted by Salamandrous at 11:01 AM on February 20, 2015


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