NY Divorce Essentials
Residency Requirements for Matrimonial Actions in New York under DRL 230
By J. Douglas Barics
Revised May 2016
In order to bring a matrimonial action in New York, one of the five residency requirements found in DRL 230 must be met. The theory behind these requirements is to insure the parties have sufficient ties to New York to warrant the dissolution of the marriage.
New York's residency requirements are fairly strict when compared to other states. The roots of the fairly high standard imposed by DRL 230 are a product of a bygone era. DRL 230 was enacted in 1966 when New York liberalized its divorce grounds by adding additional grounds besides adultery. DRL 230 was designed to prevent out of state residents from obtaining a divorce in New York on grounds other than adultery. While the statute itself does impose strict residency requirements, by an large the application of these requirements have generally been liberally applied. But since other sections of the domestic relations law have been amended over time while the residency requirements of DRL 230 have not, the results of piecemeal amendments to the domestic relations law has created some not so obvious results.
New York's residency requirements for matrimonial actions contained in Domestic Relations Law Section 230, provide five means under which residency may be satisfied. They apply to an action for a divorce under DRL 170, a judicial separation under DRL 200, an annulment, or action to declare the nullity of a void marriage under DRL 140.
The five basis for establish residency in New York are the following.
1. The parties were married in New York, and either party lived in New York for one year prior to filing. DRL 230(1)
DRL 230(1) provides that by virtue of being marriage in New York, the residency requirements will be met under this section if either party has resided in New York for one year prior to the filing of the action. There is no requirement the party continue to live in New York once the action has commenced. Nor is there any requirement the parties lived together as spouses during this one year. The mere act of being married in New York coupled with one either party's residence is sufficient.
2. The parties resided in New York as husband and wife, and either party lived in New York for one year or more prior to filing. DRL 230(2).
DRL 230(2) also allows for a one year residency requirement is the parties lived in New York as married spouses. This provision was not updated when New York adopted same sex marriages under the adoption of DRL 10-A. Despite the terms husband and wife, the residency requirements would apply to any two spouses of the same gender.
Note there is no time requirement for how long a couple must reside in New York. The mere fact of residing in New York as spouses for any length of time is sufficient to meet that prong of DRL 230(2), and residency may be met if the second prong, either spouse living in New York prior to filing.
The one year must be the year immediately prior to filing. There is no requirement that the party continue to reside in New York after filing.
3. The cause of action occurred in New York, and either party lived in New York for one year or more prior to filing. DRL 230(3).
DRL 230(3) also provides a one year residency requirement provided the cause of action claimed under DRL 170 also occurred in New York. This provision, as well as 230(4) can potentially cause issues. If a fault based cause of action is alleged, the opposing party could challenge where it occurred in addition to if it occurred. For example, if abandonment is alleged and the parties live in different states, did the abandonment occur in New York or another state? If the parties are living apart pursuant to a separation agreement for one year or more and live in different states, does this living apart occur in New York or not? In addition, as of May 2016, one trial level court has held that the no fault provision of irretrievable breakdown of the marriage for six months or more is not a true cause of action since there is no defense. In that case, a cause of action requires something to be litigated, Since the legislatures did not amend DRL 230 when it amended DRL 170 to add DRL 170(7), the Court was not going to judicially amend the cause of action requirement.
4. The cause of action occurred in New York, and both parties live in New York at the time of filing. DRL 230(4).
DRL 230(4) is unique in that it is the only residency requirement that does not require either party to reside in New York for a specific period of time. Instead, it allows a matrimonial action to be maintained if both parties live in New York at the time of filing, provided the cause of action occurred in New York. DRL 230(4) has the same potential issues as DRL 230(3). For example, if adultery is used as grounds, but it took place out of state, then DRL 230(4) would not apply. Likewise, if cruel and inhuman treatment is claimed, but the specific acts took place in another state, then residency under DRL 230(4) would not be met.
If the grounds require a time element, the question arises as to what happens if some of this time element occurs outside of New York. For example, would living apart pursuant to a separation agreement for one year or more meet the residency requirements if six of these months were spent living apart in a different state? Would it matter if the first or second six months were New York or the other state?
The no fault ground of DRL 170(7) also presents issues for DRL 230(4). If it continues to be held as not a true cause of action, which is very likely as there is no defense to this ground, then a divorce using DRL 170(7) cannot be used to satisfy any cause of action element in any subdivision of DRL 230. Of course, if DRL 230 is amended to remove the phrase "cause of action" and replace it with "grounds' this potential issue would be resolved for DRL 170(7), but not for grounds that involve a time element.
5. Either party has lived in New York for two years or more prior to filing. DRL 230(5).
DRL 230(5) provides a means under which residency may be maintained if the marriage was outside of New York, the parties never lived in New York as a married couple, or no cause of action occurred in New York. If none of these conditions are met, then either spouse residing in New York for two years without regard to where the marriage took place or wheter the cause of action occurred will be sufficient to allow the action to be maintained in New York.
If none of the five residency requirements listed in Domestic Relations Law 230 are met, the action cannot be maintained in New York.
Domestic Relations Law 230 Requirements are an Element of the Pleadings and are not Jurisdictional
The residency requirements of DRL 230 are an element of the pleadings to a matrimonial action, and must be included the verified complaint or verified counter-claim. As part of the pleadings, residency must be proven. But once proven, they may not be challenged post judgment.
By way of contrast, challenges to a court's jurisdiction may be raised even after a judgment is issued, since the court never had the authority to hear the case in the first place.
The question as to whether residency under DRL 230 is an element of the pleadings or jurisdictional was resolved by the Court of Appeals in the case of Lacks v Lacks 41 NY2d 71 (Court of Appeals, 1976). In Lacks, the Court held that any challenge to residency expires upon the conclusion of the divorce action, since it was not jurisdictional in nature.
Residency under DRL 230 and Domicile
Residency is not necessarily the same as domicile, and courts have held that a New York domicile which meets the for the requisite time period of DRL 230 allows a party to maintain the action. This is not surprising, since domicile is defined as the place where an individual considers his or her home; it is more than just a mere residence, it is the place an individual considers home. For example, in Unanue v. Unanue,141 A.D.2d 31 (2nd Dept. 1988), the Second Department held that residency under DLR 230 was met even though the plaintiff lived out of state for three months during the year prior to the commencement of the the action. A common example where domicile is sufficient to meet the residency requirements involves military deployment. A New York resident who otherwise satisfies DRL 230 is deployed by the military out of state. The requirements of DRL 230 would still be met, despite actual residence outside of New York, since there was no intent to leave New York and establish a permanent residence elsewhere. This concept is well illustrated in the case of Black v. Black, 108 A.D.2d 842 (3rd Dept. 2013), which held that an intention to return to New York was sufficient to meet the residency requirements of DRL 230.
Irretrievable Breakdown of the Marriage under DRL 170(7) is not considered a cause of action under DRL 230.
Two of the five subsections of Domestic Relations Law 230 base residency on whether or not the cause of action occurred in New York. Domestic Relations Law 170 provides the seven grounds for a divorce. The first six are causes of action, in that they need to be proven and the trial court has the authority to grant or deny each of those grounds as causes of action.
The wrinkle comes in for the no fault ground of irretrievable breakdown of the marriage for six months or more under DRL 170(7). Since there is no defense to this ground, it is not a true cause of action as the Court is without power to deny a divorce.
This issue as to whether an action filed under irretrievable breakdown of the marriage pursuant to DRL 170(7) required a two year or one year residency was specifically addressed in Stancil v Stancil 2015 NY Slip Op 25045, which held the one year residency requirement under DRL 230(3) could not apply when when DRL 170(7) is used for grounds. The rational was since there is no defense to irretrievable breakdown, it is not a true cause of action that can be litigated, and thus DRL 230(3) does not apply, as DRL 170(7) is simply a sworn statement and not something that needs to be resolved through the courts.
Therefore, when the parties never lived in New York as spouses, and were not married in New York, a divorce action under DRL 170(7) requires that one party reside in New York for two years.
Procedural Issues Involving Challenges to Residency
Since residency is considered part of a pleading and not jurisdictional, they may be challenged only if denied in the verified answer. As such, the challenge to residency can be determined either at trial, or by a motion for summary judgment under CPLR 3212. Either the defendant can move for summary judgment to dismiss due to lack of residency, or the plaintiff can move for partial summary judgment on this sole issue.
A motion to dismiss may also be entertained under CPLR 3211, but the court would likely treat this as a 3212 motion.
If a motion for summary judgment is made, a decision from that motion may be appealed as of right by the losing side under CPLR 5701, since the losing party is considered aggrieved under CPLR 5515. The right to appeal a non final order terminates when the final judgment is issued, even if the appeal has been perfected. See Matter of Aho (Court of Appeals 1976). In this situation, the appeal from the non final order must be consolidated with any appeal from the final judgment, or having that appeal treated as a premature notice of appeal under CPLR 5520.
If a summary judgment motion is made and an appeal is not taken, the right to appeal the issues raised in that motion are is preserved for review in an appeal of the final judgment under CPLR 5501, provided the rule of law from Rubeo v National Grange is not violated. (See below).
If an appeal is taken from a motion challenging residency, and that appeal is abandoned, the right to have that determination is lost under the Court of Appeals holding of Rubeo v National Grange Mutual Ins. 93 N.Y.2d 750 (Court of Appeals 1999), which held that an appeal dismissed for lack of being perfected is a dismissal on the merits and precludes further appellate review on that same issue.
The article "New York Divorce Residency Requirements" is provided as a free educational service by J. Douglas Barics, attorney at law, and does not constitute legal advice. Legal advice may only come from a qualified attorney who is familiar with the facts and circumstances of a specific case.
If you have any questions or comments, please feel free to contact Mr. Barics at firstname.lastname@example.org or (631) 864-2600. For more articles and information, please visit www.jdbar.com.
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J. Douglas Barics, Esq. – Divorce, family, matrimonial, trial and appeals lawyer in Long Island, New York.