It is possible for an individual to file for divorce in New York even if they do not reside in New York. The only requirement is that the individual’s spouse must live in New York and meet the residency requirements for obtaining a divorce in that state.
There is a residency requirement for individuals filing for divorce in New York. It can be met in several different ways, as follows:
- Either an individual or their spouse must have been living in New York state continuously for at least 2 years before the divorce case is started.
- Either an individual or their spouse must have lived in New York State continuously for at least 1 year before the divorce case is started and
- The couple got married in New York state;
- They have lived in New York State as a married couple;
- The grounds for the divorce took place in New York state.
- Both spouses are residents of New York State on the day the divorce is started and the grounds for their divorce happened in New York State.
New York lawyers would be able to analyze an individual’s situation, apply New York divorce requirements, and tell them if they can get divorced in New York.
In addition, an individual who seeks a divorce in New York must have one of the 7 grounds for divorce recognized by New York state as follows:
- Irretrievable breakdown in the relationship for at least 6 months: A divorce for this reason is considered a no-fault divorce in New York. To use this ground, the marriage must have been broken down for at least 6 months. The spouses must have settled all economic issues, including division of their debts and assets, and custody and support of the children.
- Cruel and inhuman treatment: Specific acts of cruelty must have happened within the past 5 years. Acts of cruelty involve a spouse being physically or mentally in danger, so that it is unsafe and inappropriate for that spouse to continue living with the other spouse.
- Abandonment: One spouse must have abandoned the other for at least 1 year.
- Imprisonment: One spouse must have been in prison for 3 or more consecutive years beginning after the marriage took place.
- Adultery: One spouse must show that the other spouse committed adultery during the marriage.
- Divorce after a legal separation agreement: The spouses must sign and file a valid separation agreement and live separately for 1 year. A valid separation agreement must meet specific legal requirements, so a couple may wish to have a legal consultation to ensure that their agreement is valid.
- Divorce after a judgment of separation: This is sometimes called a “conversion.” Using this ground, the Supreme Court draws up a judgment of separation and the married couple live apart for one year.
Does New York Recognize Out-Of-State Marriages?
New York recognizes legally valid marriages made in other states of the U.S. For example, New York does not recognize common law marriages, but it does honor a common law marriage if it was legally established in accordance with the law in another state. The U.S. Constitution requires states to respect the laws of other states. So it compels this result in New York for common law marriages and all other valid marriages concluded in other U.S. states.
Many U.S. citizens and permanent residents get married in exotic foreign locations, e.g., in Caribbean island nations. If a couple gets married in a foreign country, it is not going to be recognized automatically in New York. The Clerk of New York City does not register marriages made in jurisdictions outside of New York City. But this does not mean that the marriage is not legal.
While it would not be registered in New York, any legally celebrated marriage anywhere in the world is recognized in the United States. That being said, some government agencies, such as the Social Security Administration, might not accept a foreign marriage certificate. An individual who is planning a wedding outside of the U.S. would want to consult a New York attorney before they get married abroad.
How to File for Divorce When Spouses Reside in Different States
In a situation in which spouses live in different states, they would analyze the residency requirements of each to see in which state one of them meets the residency requirements. If they both meet the residency requirements in the states in which they live, then they have a choice. They can file for divorce in either of the states in which one of them lives.
Some states make exceptions to their residency requirements in emergency situations. For example, if one spouse is guilty of spousal abuse, the court may deal with the situation immediately, even if residency requirements have not been met. But this depends on the law in each state.
Generally, state rules regarding residency must be followed if a spouse is filing for divorce. Exceptions may be made in emergency situations if necessary to keep people safe. Courts may accept jurisdiction of a case in an emergency even if residency requirements are not met.
States have different rules regarding emergency exceptions. Some states offer more flexibility than others. Some states may require an individual to prove that they are in danger. An individual would want to consult a local New York attorney if they are in an emergency situation in New York.
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What Are the Pros and Cons of Filing for Divorce in a Different State?
The answer to this question would depend on many possible factors. An individual who could file for a divorce in one of two states, the one in which they live or the one in which their spouse lives, would have to analyze the situation.
They would begin by ensuring that they have a choice because each spouse meets the residency requirements in the state in which they live.
They would then want to compare divorce laws in both states. Divorce is a state law matter, and each state applies its own laws to the issues that arise in a divorce, e.g., division of property and child custody and support. The law in one state might be very different from the law in the other state in which an individual might seek a divorce. A legal consultation would be the best course of action to help an individual decide if they should get an out-of-state divorce.
However, it is also true that the law of divorce in different states may well be quite similar in most important respects. Still, there may be differences that are important in an individual’s case. For example, some states follow a community property system for property acquired during a marriage.
In a community property state, a couple’s property must be characterized as community or separate. If an item of property is characterized as community property, then it must be divided equally between the spouses.
Only 9 states are community property states. All other states divide marital property in some way that a court views as equitable. If an individual wants community property law to apply to their divorce, they might be better off filing in a community property state. The judges in a community property state would probably be better informed about how to work with the law of community property than a judge in a non-community property state.
The question of the characterization of property acquired during marriage and how it should be divided in a divorce is not a simple question. The courts of one state may apply the law of another state if the property was acquired by the couple in the other state. Property that is acquired as community property in a community property state is likely to be treated as community property and divided as such by a court in a non-community property state.
However, if a couple exchanges community property for other property in another state to which the couple moves, the character of the new property may change to non-community if the new state is not a community property state.
If the character of property acquired during an individual’s marriage and whether or not it is community property is a major concern to a spouse, they should consult with an attorney in the state in which they plan to file for divorce for guidance.
This raises another issue and that is the attorney who represents an individual in their divorce. If an individual files for a divorce in another state, they would want to hire an attorney in that state. If one lives in New York, they would want to hire a New York attorney, because they would be most familiar with New York divorce law. If an individual wants to get a divorce in California, they would want to hire a California attorney, but in New York, a New York attorney.
However, communicating with an attorney in another state about one’s out-of-state divorce might prove to be awkward and less than ideal. An individual might also have to appear in court in a distant state and that could prove to be expensive and time-consuming as it would involve long-distance travel.
So, generally speaking, it would seem that filing for divorce in the state in which one lives would be the best choice, all other things being equal and unless one has a very good reason for filing in a distant state in which their spouse resides.
How Long Can a Spouse Drag Out a Divorce in NY?
If a divorcing couple do not have disputes regarding the division of their property and/or child custody, but can agree on how to settle all issues, they might get divorced in as little as 6 weeks. Some courts are busier than others and an uncontested divorce would take up to 4 months. In some cases, there is mandatory mediation, and this can add 1 or 2 months to the time.
If a divorce is contested, meaning that the spouses cannot agree on certain issues such as child custody, spousal support, or the division of their property, a divorce can last for 1 to 2 years. If the spouses cannot agree on how to settle the issues involved in their divorce, they may have to have a trial at which they each present evidence and arguments to a judge who decides the issues.
Before the trial can start, the spouses must go through the discovery phase of the process. During this phase, the parties gather the evidence they need to prove their cases. This phase can add from 4 to 11 months to the divorce. However, much depends on how complex the issues are and the willingness of the spouses to resolve their differences.
Should I Hire an Attorney When Filing for an Out-Of-State Divorce?
If you are trying to decide whether you should file for divorce in New York or another state, you want to consult a divorce lawyer in New York. LegalMatch.com can connect you with an attorney who can tell you whether you might choose to file in another state and, if so, whether all of the factors involved indicate which state would be best for your case.
