I Thought That The One Year Requirement to Get A Divorce in New York Is Gone. Is that Right?

In the past three weeks I have had three people call me who wanted a divorce, but whom it appeared did not meet what is called the jurisdictional requirements. What does that mean? Now that New York has no-fault divorce, can’t you just get a divorce on Long Island if you want one?

New York does not technically have “no-fault” divorce. What the state legislature has done is to add a new ground for divorce — an irretrievable breakdown in the marriage, which has lasted for six months or more. That goes to the issue of the reason upon which a New York divorce court can grant a divorce. However, there is an issue that is more basic and that comes up before the issue of grounds — that is jurisdiction.

What is Jurisdiction to Grant a Divorce?

Jurisdiction means that the Court has the authority to deal with an issue. If the Court does not have jurisdiction to deal with your divorce, the issue of grounds never arises — the Court cannot deal with your divorce at all.

What Is The Jurisdictional Basis for a Long Island Divorce Court to Deal with a Divorce?

Domestic Relations Law (the New York law that deals with most divorce issues) § 230 provides five bases upon which a New York divorce court can hear your divorce case. What are they?

1. The marriage ceremony was performed in New York state, either one of you is a resident of New York state when you file for the divorce, and the person who filed for divorce has lived continuously in New York state for one year or more prior to filing for the divorce.

One of the couples who called me for a mediated uncontested divorce had moved to Long Island five months ago from Florida. They were married in Florida. It appears that they do not qualify as residents such that a Long Island divorce court could grant them a divorce. Are they going to have to wait?

2. You have lived together as husband and wife in New York, either one of you is a resident of New York state when you file for the divorce, and the person who files for divorce has lived continuously in New York state for one year or more prior to filing for the divorce.

Same problem — what is the answer?

3. The grounds for divorce ( there are 7) must  have occurred in New York state, either one of you is a resident of New York state when you file for the divorce, and the person who has filed for divorce has lived continuously in New York state for one year or more prior to filing for the divorce.

Same problem — they need to meet the one year requirement (or do they?).

4. The grounds for divorce occurred in New York and you are both New York state residents at they time one of you files for divorce.

It is not clear what the requirement for residency is if you file based on irretrievable breakdown of the marriage. The statute is silent. What if you allege irretrievable breakdown for more than six months and you just moved to New York two weeks ago? In fact,  I could not find any cases on that, so we shall have to see. It makes sense, though, that the six months must have all occurred in New York. So it looks like the residency requirement has been reduced to six months.

5. You were not married in New York, have never lived together as husband and wife in New York, and the grounds for divorce did not occur in New York. One of you must be a resident of New York when you file for divorce and must have continuously been a resident of New York for two or more years.

This is really for someone who has moved separately to New York and now wants a divorce — it appears that the two years still applies. How could you allege that the marriage has irretrievably broken down for more than six months in the State of New York when your spouse has never lived here and your moved here by yourself. You may be stuck with the two-year rule.

So, Is There Any Requirement to Reside In New York For A Minimum Period to Get A New York divorce

It appears to me that there is at least a six month residency requirement to get divorced in New York. This is a major issue, and either the Courts or the legislature will have to resolve it.

Stay tuned.