Residency Rules

The law requires that you and/or your spouse have resided or been domiciled in New York for a certain period of time before you can petition for divorce. If you recently moved to New York, you may actually be in a gray area where you are not permitted to file for divorce in either your old state or your new state, and will simply have to wait.

Here are the rules, as set forth in Domestic Relations Law 230. You can petition for a divorce if you meet one of the following tests:

A) You (or your spouse) have resided in New York for at least two years.

OR

B) You (or your spouse) have resided in New York for at least one year, AND:

  • The marriage was in New York.
  • New York is the last place you and your spouse lived together as husband and wife.
  • The cause of the divorce occurred in New York (for fault-based divorces).


The Statute: Domestic Relations Law § 230

REQUIRED RESIDENCE OF PARTIES.

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.

Domicile vs. Residence

In some instances, it's important to note that "domicile" also counts as "residency" for the rules above.

What is domicile?

It's usually the same as your residency, but not always.

Domicile is your "permanent home," the place to which you (or your spouse) always intended to return, regardless of where you presently happen to be.