for a consultation
News about Divorce Law in New York State
Articles on New York Divorce Law
Recent Entries«Return to Main Blog Page
Nov 2019What is a separate property credit?
Oct 2019Can I modify my New York Divorce?
Oct 2019How to get a Divorce in New York
Sep 2019Divorce Overview
Mar 2019Can I sue for Adultery?
Jan 2019WHAT DO I TELL THE KIDS?
Dec 2018DO I NEED A LAWYER IN FAMILY COURT
Dec 2018CHANGES IN DIVORCE LAW
Dec 2018Family Offense
Oct 2018Can I apply for Custody?
Oct 2018Must I sue for custody?
Oct 2018WHAT IS A RJI
What is jurisdiction in a New York Divorce Case?
February 4, 2019
A court in a matrimonial case may only begin to assert its power over persons in a divorce case once it has been shown that service of process was perfected in accordance with DRL 232.
Before a court may entertain a matrimonial action the Courts in every case derive their power by Statute, and while a Court has vast discretionary powers, one power it does not have is to confer jurisdiction onto itself. As such jurisdiction amply means the power of the court to act. There are many types and definitions of jurisdiction and they all mean different things,
As such, before a court will take your divorce case several hurdles and steps must be met and satisfied before a court can act.
One of those Statutes is DRL Section 232. DRL Section 232 governs service of process in matrimonial actions and is very explicit when it comes to how a court assumes personal jurisdiction over the body of the Defendant. The statute expressly sets forth that pleadings must be served upon the actual person of the Defendant, or, in the alternative, and upon the application of Plaintiff Defendant be served by substituted service in a manner prescribed by the Order. Also, you must show that no more than 120 days have elapsed since the filing of the divorce action.
Then, there is a second step that a court analyzes before it decides to keep your case. These concepts are especially important in a divorce in New York where children or property are at stake and where the spouses now reside in different states.
There are two additional forms of jurisdiction, in rem over marital status and in personam over individual spouse, where the Defendant was properly served with service of process pursuant to statue. As to in rem jurisdiction a court may not entertain a divorce action unless one of the applicable provisions regarding residency requirements is satisfied.
There are five residence requirements that must be met before you can have a divorce heard in New York. DRL Section 230 expressly sets forth when an action for divorce may be maintained in New York:
DRL Section 230 states as follows:
“An action to annul a marriage, or to declare the nullity of a void marriage, or for divorce or separation may be maintained only when:
1. The parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
2. The parties have resided in this state as husband and wife and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
3. The cause occurred in the state and either party has been a resident thereof for a continuous period of at least one year immediately preceding the commencement of the action, or
4. The cause occurred in the state and both parties are residents thereof at the time of the commencement of the action, or
5. Either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action.”
DRL § 230 is an additional requirement which is imposed that requires that the court have a proper basis for exercising rem or personal jurisdiction over a nonresident. However, durational residence requirements contained in DRL § 230 are “merely substantive elements” of the matrimonial cause of action and not a limitation upon the subject matter jurisdiction of the Court to hear the case. Since DRL Section § 230 does not limit the power of the divorce court to adjudicate your matter, if the court does not dismiss on the grounds that Section 230 of the DRL was not met, you may not use that defect to appeal the divorce judgment. However, the Plaintiff must later prove that DRL § 230 has been satisfied, so it makes no sense to litigate a divorce in New Yok unless you have satisfied the residency requirement of DRL 230.
Once these questions are addressed, if you have children you must also look to the UCCJEA for guidance as to where a child custody case should be commences or entertained. For more information on that you should consult UCCJEA.
In general, the UCCJEA vests continuing jurisdiction" for child custody litigation in the child’s "home state," which is defined as the state where the child has resided with a parent for six consecutive months prior to the commencement of the proceeding (or since birth for children younger than six months). If the child has not lived in any state for at least six months, then the courts of two competing states must look at the child’s significant connections with the state.
You should consult with a New York Divorce lawyer since the statute and the requirements which must be met in competing jurisdictions is complex.