Thursday, August 25, 2016

TWO YEAR RESIDENCY AND NO-FAULT DIVORCE



Domestic Relations Law § 230 requires that one of the parties reside continuously in New York State for two years, or continuously for one year if other conditions are met including that the “cause of action occurred in the state.” At least one trial level court has held that the ground of irretrievable breakdown of the marriage cannot be considered a cause that occurred in the state.

Stancil v Stancil 2015 NY Slip Op 25045 Decided on February 17, 2015 Supreme Court, New York County:

"Each year, matrimonial courts in this state assist thousands of unhappily married couples resolve the painfully difficult issues involving their children and the complicated issues involving their finances. It is never the goal to make the process more time-consuming and costly. The court readily admits that this decision may cause hardship for plaintiff, who may very well now have to commence two actions: a custody petition brought in either this court or New York Family Court to determine non-financial issues concerning the child, who has lived here for more than the requisite six months (DRL § 76), and an action for divorce brought in South Carolina or Virginia, states which likely have the ability to grant plaintiff a divorce and determine all ancillary financial issues....

Oliver Wendell Holmes famously wrote "hard cases make bad law." Bearing that adage in mind, this court cannot make bad law simply to avoid hardship to plaintiff. In spite of the difficulties that she will encounter as a result of this divorce action being dismissed, permitting the case to go forward would be making a legal determination that would render the two year residency requirement meaningless. While it is this court's view that the no-fault divorce statute has brought immeasurable value to the citizens of this state and to its courts, if the legislature intends to lower the residency requirement to one year where the irretrievable breakdown ground is pled, it will have to say so. Absent this, it must be concluded that plaintiff is required to reside in New York State for two years prior to the commencement of the divorce. Because she has not, the durational residency requirement is not satisfied and this divorce action must be dismissed."

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