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Divorce Residency Requirements in New York (NY Domestic Relations Law section 230)

I’ve been licensed to practice law in New York since 2012. Unfortunately, I do not maintain an office in New York. This means that I cannot take clients who live in New York due to the NY Court of Appeals‘ 2015 ruling interpreting NY Judiciary Law section 470 in the case of Schoenefeld v. State of New York, et al. That appears to be changing, though. Legislation has been passed by both the New York State Senate and, as of June 7, 2023, the New York State Assembly to repeal Judicial Law Section 470. Stay tuned for updates. Because Section 470 is still in effect, I can’t practice law in the state of New York. However, what I’m going to discuss in this blog post and all my NY blog posts that follow is information any member of the public can look up for themselves. I offer no opinion on whether the particular statute or case I go over is advisable or prudent for their particular situation. My hope is that, even though my blog posts are purely factual, my post will give the enterprising reader an idea or plant a seed for further research that they would otherwise not have had. Put simply: after reading my factual post, maybe you can do more research that didn’t occur to you before and, hopefully, be better off for it. In this post on the laws of the state of New York, I’m going to talk about the residency requirements for a divorce. A residency requirement is the basic idea that in order to file for divorce in a given state...

New York Statute of Limitations – Negligence

In this post, I’m going to go over the statute of limitations under New York law for a negligence lawsuit. As a reminder, negligence is a type of tort for which a plaintiff can seek redress by filing a civil suit, often for money. In layman’s terms, negligence occurs when the defendant does something, but fails to exercise something called “ordinary care”. In my mind, a failure to exercise ordinary care is when the defendant fails to abide by the expectations people in society assume. For instance, when you’re driving a vehicle, pedestrians will assume that you’re paying attention, using your mirrors, etc. If you as the driver fail to exercise ordinary care — for instance, you’re not paying attention because you’re texting while driving — and cause an accident, you’ll likely be accused of negligence. If you’re a plaintiff suing for negligence, you generally have to prove at least these four criteria. : That defendant owed a duty to you, That defendant breached that duty to you by, for instance, failing to exercise ordinary care, You suffered injuries or damage of some kind, and Defendant’s breach of that duty to you was the proximate cause of the injuries or damage you suffered. These four criteria are, as I mentioned, not specific to one particular state. I learned the 4-criteria version of negligence in law school. Some lawyers learn the 3-criteria version which basically combines the injury and causation bulletpoints above into a single bulletpoint that states something like “defendant’s breach of duty proximately caused plaintiff’s injuries.” What’s powerful about negligence if you’re the plaintiff — or annoying, I...

Equitable Distribution vs. Community Property

I live and practice law in California. When it comes to divorces, California is one of nine US states that follow the Community Property system when it comes to dividing property. In theory, community property is a simple idea — namely, the general rules are that (1) whatever the individual spouses acquire on their own prior to the marriage is their own property and is not split up during a divorce, and (2) whatever the individual spouses acquire during the marriage is generally “community property” and, thus, needs to be divided 50/50 in the event of a divorce. To be clear, though, (1) and (2) are just the general rules under the California community property system. There are exceptions under which, for example, an item acquired during the marriage is still the separate property of the spouse acquiring it due to the manner in which the item was acquired. In practice, though, applying the community property system can be quite involved. Over on my Youtube channel, I put out a video a few months back going over some common problems that occur when you try to apply the idea of community property in the real world. Here is the video. If you haven’t seen my Youtube channel, I encourage you to take a look at it as I go over community property as well as various other ideas related to California law also. What I am going to do in this post, though, is try to compare Community Property to the other system — Equitable Distribution — that is in place in the other 41 US states. By the...

New York Statute of Limitations – Conversion

In this post, I’m going to continue my series of exploring various statutes of limitation for torts under New York law. Previously, I went over statutes of limitation for torts like fraud and wrongful death. In this post, I’m going to talk about one of the lesser known torts, the tort of conversion. The tort of conversion is about interference and specifically interference with plaintiff’s ability to possess an item they have the legal right to possess. In New York, the criteria for conversion are (1) the existence of plaintiff’s possessory right or interest in the item, and (2) defendant’s dominion over that item or interference with it in derogation of plaintiff’s rights. In my admittedly limited research, the New York authority I found for that is a New York Court of Appeals case called Colavito v. New York Organ Donor Network, Inc (2006) 8 N.Y.3d 43, 49. As my first aside, I’ll point out that California also provides for the tort of conversion so it is not specific to New York. In California, the elements for conversion are (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrong act or disposition of plaintiff’s property rights; and (3) damages suffered by plaintiff. The California authority for that — because I care and know that you’re interested — is a California Supreme Court case called Lee v. Hanley (2015) 61 Cal.4th 1225, 1240. A reminder as well that the California Supreme Court and New York Court of Appeals are both the highest state courts in their respective states and, as a result,...

New York Statute of Limitations – Enforcement of Money Judgments (NY CPLR section 211(b))

In this post, I’m continuing my travels through New York’s statutes of limitations. In prior posts, I went over the statutes of limitation for fraud as well as wrongful death. In this post, I’m going to talk about enforcement of money judgments. In more plain language, enforcement of judgments refers to the act of collecting on a judgment (e.g. that defendant pay $50,000 to plaintiff) that a court renders in favor of a winning party in a civil case against the losing party. The statute of limitations for enforcement of judgments refers to the time period within which that collection activity has to take place. In New York, the statute of limitation for enforcement of money judgments is 20 years. If you’re interested — and I know you are — the governing statute here is section 211(b) of New York’s Civil Practice Law and Rules (CPLR). Section 211 states: “On a money judgment. A money judgment is presumed to be paid and satisfied after the expiration of twenty years from the time when the party recovering it was first entitled to enforce it.This presumption is conclusive, except as against a person who within the twenty years acknowledges an indebtedness, or makes a payment, of all or part of the amount recovered by the judgment, or his heir or personal representative, or a person whom he otherwise represents. Such an acknowledgment must be in writing and signed by the person to be charged. Property acquired by an enforcement order or by levy upon an execution is a payment, unless the person to be charged shows that it did not include...

New York Abuse of Process

In this post, I’m going to go over the tort of Abuse of Process under New York law. I went over Abuse of Process under California law in a prior post. As a refresher, a tort is something a person who has been wronged can file a civil lawsuit over. The plaintiff in such a suit most often requests some amount of money from the defendant, although other types of relief (e.g. declaratory, injunctive, etc) are possible also. As it is in California, many torts in New York are element-based. In other words, there are a set number of criteria for that tort. The plaintiff establishes the defendant’s liability for the tort by proving that each of those elements are met. In New York, the criteria for Abuse of Process are: regularly issued legal process, civil or criminal, compelling performance or forbearance of some act, and the person activating the process was moved by an ulterior purpose to do harm, without economic or social excuse or justification, and the person activating the process south some collateral advantage or corresponding detriment to the plaintiff that is outside the legitimate ends of the process, and plaintiff suffers actual or special damage. Based on my cursory research, there seem to be quite a few cases in New York that lay out these criteria. I could be wrong, but it looks like all of those cases stem from a 1975 Court of Appeals of New York case called Board of Education of Farmingdale Union Free School District v. Farmingdale Classroom Teachers Association, Inc Local 1889 AFT AFL-CIO (38 NY2d 397). The case is...