Residency Requirements for Matrimonial Actions in New York under DRL 230
By J. Douglas Barics
Revised August 2019
DRL 230 Applies to Four Types of Matrimonial Actions
Domestic Relations Law 230 applies to four types of matrimonial actions:
- An action to annul a marriage
- An action to declare the nullity of a void marriage
- An action for a divorce
- An action for a separation
For the remaining matrimonial actions defined in DRL 236 B (2)(a), DRL 230 does not apply.
In order to bring one of the above listed 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 or to judicially separate the spouses.
1. DRL 230(1): The parties were married in New York, and either party lived in New York for one year prior to commencing the action.
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. DRL 230(2): The parties resided in New York as spouses, and either party lived in New York for one year or more prior to filing.
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. DRL 230(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) 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 DRL 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. DRL 230(4): The cause of action occurred in New York, and both parties live in New York at the time of filing.
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. DRL 230(5): Either party has lived in New York for two years or more prior to filing.
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 whether 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.
6. 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.
About J. Douglas Barics
J. Douglas Barics is a matrimonial attorney located in Commack NY who regularly represents individuals in all divorce and family law matters.
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