Duration of Residency in New York as Prerequisite to Divorce Action

In order to have a valid divorce action in New York, certain residential requirements have to be satisfied. Domestic Relations Law §230 requires that:

1. You and your spouse were married in New York, and either of you is a resident of New York when the divorce action is started and has been a resident of New York for a continuous period of one year immediately before the commencement of the divorce action;
2. You and your spouse have resided in New York as husband and wife, and either of you is a resident of New York when the divorce action is started and has been a resident of New York for a continuous period of one year immediately preceding the beginning of the divorce action;
3. The grounds for divorce occurred in New York, and either you or your spouse has been a resident of New York for a continuous period of at least one year immediately before the beginning of the divorce action;
4. The grounds for divorce occurred in New York, and both you and your spouse are residents of New York at the time of the commencement of the divorce action;
5. Either you or your spouse has been a resident of New York for a continuous period of at least two years immediately preceding the commencement of the divorce action.

The statute requires that the residency be continuous. What happens if the party spends significant periods of time outside of New York?

In Murjani v. Murjani, 2014 N.Y. Slip. Op. 08366 (1st Dep’t. 2014), the Appellate Division held that durational residency requirements were satisfied by the defendant, despite the fact that defendant would spend significant periods of time in India and elsewhere. The court held that since defendant had maintained a permanent residence in New York and would return there with regularity, those facts satisfied continuous residency requirements. Thus, as long as permanent residence is being maintained in New York, and the party either returns or intends to return there, Domestic Relations Law §230 is satisfied and a divorce action can be maintained.

Statement That Marriage Was Irretrievably Broken Is Sufficient to Establish Cause of Action For Divorce

I have previously written about the issues associated with the grounds for divorce under the no-fault statute (Domestic Relations Law §170(7)). Prior decisions associated with issue were trial level decisions and, therefore, there were subject to potentially different result after appellate review. Now, there is some finality to this issue. Two recent appellate decision held specifically that a statement under oath that the marriage was irretrievably broken for a period of six months or longer was sufficient to establish a cause of action under Domestic Relations Law §170(7).

In Trbovich v. Trbovich, 122 A.D.3d 1381 (4 Dep’t. 2014) the Appellate Division, Fourth Department, affirmed an order which denied the plaintiff’s motion for summary judgment seeking a divorce pursuant to Domestic Relations Law §170(7). It agreed with plaintiff that the relationship has broken down irretrievably for a period of at least six months opposing spouse in a no-fault divorce action pursuant to Domestic Relations Law §170(7) is not entitled to litigate the other spouse’s sworn statement, and indicated that to the extent that its decision in Tuper v. Tuper, 98 A.D.3d 55, 59 (4th Dep’t 2012) suggested otherwise, it declined to follow it. Nevertheless, the Appellate Division held that plaintiff was not entitled to summary judgment under Domestic Relations Law §170(7) at this juncture of the litigation because the ancillary issues had not been resolved by the parties or determined by the court.

In Hoffer-Adou v. Adou, 2014 Slip.Op.  07436 (1 Dep’t. 2014) the Appellate Division held that contrary to the husband’s contention, the wife was entitled to a judgment of divorce under the no-fault provision of DRL §170(7), since her statement under oath that the marriage was irretrievably broken for a period of six months was sufficient to establish her cause of action for divorce as a matter of law. Trial court’s grant of the divorce did not contradict DRL §170(7)’s requirement that “[n]o judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts’ fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.” The parties’ separation agreement resolved the issues of child custody and support. Their subsequent commencement in the Family Court of proceedings concerning these issues did not render the court without authority to grant the divorce, since non-compliance with/or enforcement of, the separation agreement is not an element of Domestic Relations Law §170(7).

Thus, as long as the party seeking divorce is able to make a sworn statement that the marriage was irretrievably broken for a period of six months, that party will receive a divorce once all other issues have been resolved. There is no way for the defendant to challenge that statement, and the court will not permit introduction of testimony challenging it. This follows the intent of the no-fault statute to prevent grounds trials.