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 in the US, you have to fulfill a requirement or satisfy a criteria of some kind first. The concept of a residency requirement is not unique to New York or to California. Many states in the US have residency requirements for divorce although, of course, I have not checked every state. If you live in a state other than California or New York, you will need to check your state’s residency requirement yourself if you’re involved in or about to be involved in a divorce case.
In California, the residency requirement for a married couple is fairly simple: (1) at least one of the spouses had to have lived in California for the six months immediately preceding the marriage, and (2) at least one of the spouses had to have lived in the county where the case is for at least the three months immediately preceding the filing of the case in said county. See California Family Code section 2320(a). Under section 2320(b), the residency requirements for a same-sex married couple is slightly different, but they are more expansive. In other words, a same-sex married couple has more ways to comply with California’s divorce residency requirement than a heterosexual couple.
The New York residency requirement is more involved than California’s. If you look up New York Domestic Relations Law section 230, you’ll see that there are five possible ways to meet the requirement and be eligible to file a divorce, annulment, or separation case in the state of New York. You only need to satisfy one of the five, but some of the ways have multiple requirements so I’ve broken each requirement in to (a), (b), (c), etc. For example, to satisfy (1) below, you need to satisfy (1)(a), (1)(b), and (1)(c).
- (a) You and your spouse were married in New York, and (b) either of you is still residing in New York when the case is commenced, and (c) that spouse has been a continuous resident of New York for the year immediately preceding the commencement of the case;
- (a) You and your spouse reside in New York, and (b) either of you is still residing in New York when the case is commenced, and (c) that spouse has been a continuous resident of New York for the year immediately preceding the commencement of the case;
- (a) The grounds for divorce arose in New York, and (b) either spouse has been a resident of New York for at least one year immediately preceding the commencement of the case;
- (a) The grounds for divorce arose in New York, and (b) both spouses are residents of New York at the time the case is commenced;
- (a) Either spouse has been a resident of New York for a continuous period for at least two years immediately preceding the commencement of the case.
In addition to the residency requirements above, New York also requires that divorce may only be obtained on certain grounds. These grounds are listed out in New York Domestic Relations Law section 170 and I have gone more in-depth about the grounds in a separate blog post.
Again, I’ll remind you about Section 470 of New York’s Judiciary Law prevents me from taking cases in New York. This post is meant solely as a high-level overview of the subject matter. If you have a specific question — such as whether your situation meets any of the 5 criteria specified under DRL Section 230, please find a NY-licensed attorney for further assistance.
Andy Chen
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