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Two-Year Residence Requirement for New York Divorce is Not Defeated by Temporary Absence from State: First Department Rejects Defendant's Challenge to Divorce

By: Marc A. Rapaport | December 19, 2014

On December 2, 2014, the Appellate Division for the First Department followed decades of established precedent by liberally interpreting the residency requirements required for filing a divorce proceeding in New York.

A plaintiff may file for divorce in New York if any of the following statements apply:

The foregoing requirements are set forth in Article 230 of New York's Domestic Relations Law (DRL), which is the primary New York statute applicable to matrimonial actions. In most instances, the question of whether a plaintiff meets the DRL's residency requirements is not at issue. Unless there is a specific challenge by the other spouse, no court in New York will ask you for "proof" of your residence.

In cases where a defendant-spouse tries to stop a divorce by claiming that the DRL's durational residency requirement has not been met, New York courts have tended to liberally interpret what constitutes "residence" under the statute. Most recently, on December 2, 2014, in the case of Murjani v. Murgani, New York's Appellate Division for the First Department upheld a trial court decision which held that the plaintiff satisfied the 2-year durational requirement based on defendant's residence in New York, despite the fact that defendant spent time in India and other places during the two years preceding the divorce action. In the Murgani case, Justice Laura E. Drager of the New York County Supreme Court held that the plaintiff met the durational requirement because defendant (wife) "regularly" returned to New York during the two years prior to the commencement of the divorce proceeding. Judge Drager issued sanctions against the defendant in the amount of $15,000 –which the Appellate Division upheld as fully warranted by the defendant-wife's inappropriate "forum shopping" intended to "prevent the New York from resolving the issues before it."

The trial court decision by Justice Drager in Murgani and its affirmance by the Appellate Division are consistent with decades of New York case law, in which trial and appellate courts have held that New York residency may continue to exist even after one or both spouses left the state. For example, in 1988, in the case of Unanue v. Unanue,141 A.D.2d 31 (2nd Dept. 1988), the Appellate Division for the Second Department held that the plaintiff-wife satisfied New York's residence requirement, despite having lived in Connecticut for approximately 3 ½ months during the one-year period immediately preceding the filing of the divorce action.

In 2013, the Appellate Division for the Third Department offered an even more liberal interpretation. In Black v. Black, 108 A.D.2d 842 (3rd Dept. 2013), the Third Department held that the plaintiff-wife had established her "intent" to remain a New York resident, despite the fact the parties and their children spent years in other states and countries, including seven years in France. In its decision, the court stated that the term "residence", as used in section 230 of the DRL, refers to "domicile", which is broad and subjective, rather than mere physical presence. According to the court, even where a party (such as the plaintiff in that case) has physically lived away from New York for a period of years, he or she may continue to be a New York resident for the purposes of the DRL if they intended to return to New York. In the Black decision, the court found that the wife had met the residence test of DRL § 230, despite the parties having filed tax returns in other jurisdictions and getting drivers licenses in other states.

If you are concerned about whether you meet the residence requirement or any other legal requirement for getting divorced in New York, you should consult with an experienced New York divorce attorney. DRL § 230 is just one example of the many instances in which courts have interpreted provisions in the Domestic Relations Law in ways that may not be immediately apparent from the text of the statute. Only an experienced New York divorce lawyer can effectively guide you through such nuances in the law.

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