In order to maintain an action for divorce in New York, the plaintiff must meet New York’s residency requirements for filing. And if the plaintiff is seeking any “ancillary relief” (i.e. support, division of marital property, etc.), the court must also have personal jurisdiction over the defendant spouse.
Residency is satisfied where one of the following conditions is met:
- One of the parties has resided in New York for a continuous period of at least two years;
- One of the parties has resided in New York for a continuous period of at least one year and: (i) the ground for divorce arose in New York; (ii) the parties were married in New York; or (iii) the parties previously resided in New York as husband and wife; or
- Both parties reside in New York and the ground for divorce arose in New York.
Assuming New York’s residency requirements are met, the plaintiff is entitled to file for divorce in New York against the defendant spouse. If the only relief the plaintiff is seeking is the dissolution of the marriage, it is not necessary that the court have personal jurisdiction over the defendant spouse. However, if the plaintiff is seeking any ancillary relief (support, division of marital property, etc.), personal jurisdiction over the defendant is required.
Personal jurisdiction over the defendant is acquired where the defendant either resides in New York or is personally served with notice of the divorce action while physically present in the state. Personal jurisdiction is also acquired over the defendant where New York was the “matrimonial domicile” of the parties before their separation (i.e. the parties previously resided as husband and wife in the state), or the defendant abandoned the plaintiff in this state, or the claim for ancillary relief accrued under the laws of this state or under an agreement executed in this state.
Regardless of whether or not the plaintiff is seeking ancillary relief, the defendant must also be properly served with notice of the divorce action in the form of a “summons.” New York State law requires that the divorce summons be personally delivered to the defendant by someone over the age of 18 who is not a party to the action within 120 days of the date of filing.
In the event it is not possible to personally deliver the summons to the defendant, either because the defendant is avoiding service, or because his or her exact whereabouts are unknown, the plaintiff can request permission from the court to serve the defendant in some other manner. Common examples of “substitute service” include service by mail to the defendant’s last known address, employer or post office box; personal service upon a known relative, acquaintance or associate of the defendant; or service by publication in a newspaper.
In order to obtain an order for substitute service, the plaintiff and/or his or her attorney must submit a sworn affidavit to the court detailing the reasons why personal delivery is not possible and proposing an alternative means of service that is reasonably calculated, under all the circumstances, to apprise the defendant of the pendency of the divorce action and afford him or her an opportunity to appear and be heard. Where the court grants the plaintiff’s application, completion of service in the manner prescribed by the order is deemed the equivalent of personal delivery and will entitle the plaintiff to proceed against the defendant by default where he or she fails to respond to the summons.
If you are a resident of New York seeking a divorce against a spouse who lives in another state, or foreign jurisdiction, whose exact whereabouts are unknown, the experienced matrimonial attorneys at HoganWillig may be able to assist you in commencing an action for divorce in New York and taking whatever steps may be necessary to locate and/or serve the absent spouse.