Living Out-of-State and Filing for Divorce in New York

Living Out-of-State and Filing for Divorce in New York

Divorce is one of the hardest things that anyone can go through. It can generate a range of anxieties, fears, and frustrations that are not easy to deal with. You may be currently separated from your spouse, but are you ready to take the next step and file for divorce to make the dissolution of your marriage official? The divorce process may be further complicated if you live outside of the state of New York. If you have had to go abroad or out of state for work or for some other reason, it is still possible for you to terminate your marriage. The divorce attorneys at Fass & Greenberg are here to guide you through the process.

The New York Court of Appeals in Rosenstiel v. Rosenstiel held that New York will generally recognize a foreign divorce decree granted to a spouse living out-of-state as a matter of courtesy. Typically, the following requirements must be met in order for the foreign divorce to be recognized:

  1. Both spouses must receive adequate notice.
  2. At least one spouse must be physically present in the jurisdiction of the foreign court that is carrying out the divorce (typically, the spouse requesting divorce in the foreign country).
  3. The responding spouse must also have some type of appearance or acknowledgement to the authority of the foreign court. This third requirement can be satisfied by the responding spouse physically appearing in the foreign court or signing a written response showing agreement to this foreign divorce decision.

According to the Supreme Court of the United States in Williams v. North Carolina, states are required to give full faith and credit to divorce decrees obtained in other states, including ex parte decrees (where the court issuing the divorce only had jurisdiction over one spouse, and the other spouse never appeared in court). However, New York Courts are hesitant to give recognition to ex parte foreign divorce decrees obtained abroad. New York will not recognize ex parte foreign divorce decrees that violate public policy concerns. In Farag v. Farag, the Second Department refused to recognize an ex parte divorce attained by a spouse who was present but not domiciled in the foreign country where the other spouse did not appear and was not properly served with process.

New York follows the divisible divorce doctrine, and therefore a valid divorce obtained in a foreign jurisdiction dissolves the marriage but will not distribute property or decide any ancillary relief, such as support, child custody, or counsel fees. Either party may then bring an action to enforce the equitable distribution of property or support in New York. Recently, in Bernhardt v. Schneider, the Appellate Division of the Supreme Court of New York emphasized that “an ex parte foreign divorce decree cannot divest the nonappearing spouse of his or her rights” pursuant to New York marital property.

It is also possible to file for divorce within the New York State Court System if you live out of state or in a foreign country. You may want to file for divorce in New York if you have real property in the state or because of the way the state handles certain matters (for example, New York courts often grant more favorable child support awards). For this to be possible, at least one spouse must satisfy the residency requirement as laid out in the Domestic Relations Law Section 230. A spouse can satisfy the residency requirement in several ways:

  1. At least one spouse has been living in New York continuously for at least two years before the divorce case is started; or
  2. At least one spouse has been living in New York continuously for at least one year before the divorce case is started and (1) you got married in New York, or (2) you lived together in New York as a married couple, or (3) the grounds for your divorce happened in New York; or
  3. Both spouses are residents of New York on the day the divorce is started and the grounds for your divorce happened in New York.

Wherever you may be situated in the world, it is crucial that you hire a divorce lawyer to ensure that your rights and interests are protected. You must re-build your life wherever you are, and to allow you to move forward, you must ensure that your marriage has been properly dissolved. It is important to be sure that the divorce is in fact recognized by both U.S. authorities and the courts of your host country. At Fass & Greenberg, we have the necessary knowledge of divorce law to help guide you through the process. If you need to get a divorce from an overseas location, you should speak to the Garden City divorce attorneys at Fass & Greenberg.

There are other considerations in obtaining an out-of-state divorce which include how and when you apply for other relief in New York State (such as custody, maintenance, child support, and equitable distribution). We will cover this topic in a separate blog post.

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