You may be unsure whether you have the right to obtain a divorce if your spouse is no longer living with you, will not agree to accept service or whose whereabouts are unknown. In our earlier blog When Ties Need to be Broken, we discussed divorce in general. In this article, we are dealing with residency and service requirements, as well as alternative means of service to obtain a divorce in New York State (“N.Y.”).
Residency Requirements and Personal Jurisdiction
To commence a divorce action in N.Y., the plaintiff must meet N.Y.’s residency requirements which are set forth in Section 230 of Article 13 of N.Y. Domestic Relations Law (“DRL”). DRL §230 enumerates the residency requirements for N.Y. courts to have jurisdiction over a divorce action: (1) you got married in N.Y and either one of you is a resident of N.Y. at the time of filing for divorce and have been a resident for a continuous period of one (1) year; (2) both you and your spouse resided in N.Y. as husband and wife and either of you is a resident of N.Y. when the divorce action is commenced and has been a resident for a continuous period of one (1) year immediately preceding the divorce action; (3) the cause of action occurred in N.Y. and either one of you has been a resident for a continuous period of one (1) year immediately preceding commencement of the divorce action; (4) the cause of action occurred in N.Y. and you are both residents of N.Y. at the time of commencement of the action; or (5) either you or your spouse has been a resident of N.Y. for at least two (2) years immediately preceding commencement of the divorce action.
For a court in N.Y. to be able to decide both the divorce and ancillary issues, the court must have personal jurisdiction over the defendant, which refers to the court’s power to hear and adjudicate a matter against an individual given that person’s residency, connections to the state and other considerations. Also, the defendant must be personally served and service must be done by someone other than the plaintiff who is over the age of eighteen (18). In N.Y., you have one hundred and twenty (120) days from the date of starting the action to complete service on the defendant.
Importance of Due Diligence
When divorcing an absent or avoiding spouse, the law allows you to submit a motion to the court for an order for service by alternate means such as mail or publication. Since service by mail or publication are not the preferred methods, you should document your efforts to locate your spouse, as well as your service efforts, given the fact that you must prove all possible avenues in finding your spouse have been exhausted and have rendered no results. You may also want to hire a private investigator or process server to perform the search. Examples include, but are not limited to, inquiries to friends, relatives or employers, inquiries to the U.S. Post Office and the Department of Motor Vehicles, social media searches, etc. You will need to detail these efforts in a sworn statement, known as an affidavit, to obtain an order of substitute service on a defendant.
Please note that this blog should be read for informational purposes only. If you have any questions or require additional information, please contact our office.
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