1-year residence required (with exceptions) - NY DRL § 230

None of the one-year routes fits: they did not marry here, never resided here as spouses, and the cause did not arise here. That leaves route (5), two continuous years of residence by either party with no other connection needed. So whether New York will hear the case at all turns on a count of months, not on the merits of anything.

They agree not to file for the moment and to use the interval to settle the practical questions - where the shipped belongings go and how the shared account is divided - so that whenever a filing happens there is far less left in dispute.

Route (2) is available where the parties have resided in New York as husband and wife and either of them is a resident when the action is commenced and has been for a continuous year immediately preceding. The fact carrying it is the continuous residence of the spouse who stayed, not the movements of the one who left.

They agree the case belongs in New York, and that the spouse who moved away will not be asked to travel for anything that can be done remotely or in writing.

The section asks for residence that is continuous for the stated period immediately preceding commencement, and residence is a question of fact that is not the same as domicile or citizenship. It turns on where the person actually resided across those months, which is a matter of documents rather than of what either of them intended.

They agree to exchange the handful of documents each relies on - lease, utility bills, travel dates - before anyone files, so the point is settled between them instead of litigated at the outset.

Whether the plaintiff's divorce action can proceed despite neither party meeting the one-year residency requirement of Domestic Relations Law § 230(1).

The residency requirements of Domestic Relations Law § 230 are elements of a cause of action, not jurisdictional prerequisites, and the defendant's failure to raise the defense waives it, so the action can proceed.

It has long been held that the residency requirements found under the five subdivisions of Domestic Relations Law § 230 are elements of a cause of action for divorce and not a jurisdictional requisite.

Whether the plaintiff met the durational residency requirements of Domestic Relations Law § 230 to maintain the divorce action.

The court held that the plaintiff's allegations that the defendant was domiciled or resided in New York for at least two years were sufficient to meet the durational residency requirement, and the defendant failed to show a change of domicile.

The Supreme Court properly denied that branch of the defendant’s cross motion which was to dismiss the action on the ground that the durational residency requirements of Domestic Relations Law § 230 had not been met.

Whether the plaintiff met the durational residency requirements of Domestic Relations Law § 230 to maintain a divorce action.

The durational residency requirements of Domestic Relations Law § 230 may be satisfied by proving that a party has been domiciled or has resided in New York for the continuous period of time specified, and plaintiff established her uninterrupted domicile in New York, thus meeting the requirements.

Thus, “[t]he durational residency requirements of Domestic Relations Law § 230 may be satisfied by proving that a party has been domiciled or has resided in New York for the continuous period of time specified” (Guedes v Guedes, 45 AD3d 533, 534 [2007]; see Esser v Esser, 277 AD2d 926, 926 [2000]).

Whether the plaintiff satisfied the two-year residency requirement under Domestic Relations Law § 230(5) to maintain a divorce action.

The court held that the two-year residency requirement of Domestic Relations Law § 230(5) was not satisfied, and dismissal of the divorce action was warranted.

Dismissal of this divorce action for failure to satisfy the two-year residency requirement of Domestic Relations Law § 230 (5) is warranted.

Whether the durational residency requirement of Domestic Relations Law § 230(5) was satisfied by the plaintiff's residence pattern.

The durational residency requirement is satisfied if the plaintiff maintained a permanent residence in New York and returned there with regularity during the two-year period, even if a portion of that time was spent elsewhere.

The durational residency requirement set forth in Domestic Relations Law § 230 (5) is satisfied by evidence that for two years prior to commencement of the action, plaintiff, although spending a portion of the statutorily relevant period in India, maintained a permanent residence in New York and returned there with regularity (see Weslock v Weslock, 280 AD2d 278 [2001], Iv dismissed 96 NY2d 824 [2001]; Wildenstein v Wildenstein, 249 AD2d 12 [1998]; Davis v Davis, 144 AD2d 621 [1988]).

Whether the Supreme Court properly dismissed the complaint for failure to comply with the residency requirements of Domestic Relations Law § 230 based solely on the plaintiff's affidavit, or whether there were issues of fact requiring an evidentiary hearing.

The Appellate Division held that the Supreme Court erred in determining the residency issue solely on the basis of the plaintiff's affidavit because there were sharp questions of fact, and therefore an evidentiary hearing is required.

Sharp questions of fact regarding the residency issue were presented on the motion and cross motion, and the Supreme Court erred in determining the issue solely on the basis of the plaintiffs affidavit submitted in support of a prior pendente lite motion (see generally Buglione v Buglione, 279 App Div 1089 [1952]; Josephson v Josephson, 276 App Div 845 [1949]; Wilson v Wilson, 176 AD2d 115, 116 [1991]; Rubin v Rubin, 73 AD2d 148, 151 [1980]).