Can I Bring a Divorce Action in New York? What is Residency?

Depending on which side of the litigation a spouse is on, New York’s laws can be much more generous than the laws of other states.

In order to prevent people from moving from state to state for the sole purpose of picking a state with laws more favorable to them, i.e., “forum shopping,” New York requires that a plaintiff establish a sufficient connection to the State of New York  in order to commence a matrimonial proceeding in New York.  Proving this connection to New York is commonly referred as establishing “residency.”

Residency can be met by proving that:

• The parties were married in New York, and either party is a resident of New York when the action is commenced and has been such a resident for a continuous period of one year immediately prior to commencement proceeding, or
• The parties have resided in New York as a married couple, and either party is a resident of New York when the action is commenced and has been such a resident for a continuous period of one year immediately prior to commencement of the proceeding, or
• The grounds for the action occurred in New York, and either party has been a resident of New York for a continuous period of one year immediately prior to commencement of the proceeding, or
• The grounds for the action occurred in New York, and both parties are residents of New York at commencement of the proceeding, or
• Either party has been a resident of New York for a continuous period of at least two years immediately prior to the commencement of the proceeding.

DRL §  230.

Prior to 1976, the term “resident” meant “domiciliary”; however, after an amendment to DRL § 231, “resident” has been regularly interpreted to mean either “domiciliary”  or “physical resident.” Guedes v. Guedes, 45 A.D.3d 533 (2d Dept. 2007).

So, who is a domiciliary?  Who is a physical resident?

A domiciliary of New York is a person whose “domicile” is located within New York.  “A person can have but one domicile at any given time.  Every one acquires a domicile of origin at birth, which continues until effectively changed.” In re Sorrentino’s Will, 71 N.Y.S.2d (Surrogate’s Ct., King’s Cty. 1946).  “In order to effect a change [of domicile] there must have been proof that the [individual] had freely chosen another domicile and that this choice was followed by physical presence at a dwelling place and the intention to make it a home” In re Johnson’s Will, 259 A.D. 290 (2d Dept. 1940).  Thus, to change a domicile, their must be both physical presence at the new domicile and an intent to make that place their permanent residence.