“Not all those who wander are lost.” – J.R.R. Tolkien, The Fellowship of the Ring
In the world of mobile families, complex international marriages and overburdened courts, would a New York court accept a divorce case, filed by the husband, an Irish resident, British passport holder and citizen of the European Union against the wife, a U.S. citizen who prefers to reside in Ireland? Apparently, the answer is yes.
In a recent Putnam County Supreme court case, Mr. S. filed for divorce in New York and his wife opposed it, claiming that New York State had no jurisdiction to end the parties’ marriage. Under New York State law, when you commence an action for divorce, the first thing that needs to happen is that the court needs to verify that there is jurisdiction.
To establish jurisdiction in a New York State divorce case a party must demonstrate that:
- One of the parties resided in New York for at least 2 years prior to filing for divorce;
- The parties were married in New York and one of them resided in New York for at least one year prior to filing for divorce;
- The grounds for divorce occurred in New York and one of them resided in New York for at least one year prior to filing for divorce; or
- The grounds for divorce occurred in New York and they both resided in New York at the time of filing for divorce.
In this case, Mr. S. claimed that the parties resided as husband and wife in New York and at least one of them was a resident of New York for a year immediately before October of 2012, when he filed for divorce.
When New York Courts look at the issue of residence, they usually make it synonymous with the term “domicile.” What does “domicile” mean? A domicile is a place which one considers as one’s permanent and principal home even if one is away from it for a while. A domicile is a place to which you intend to return to from wherever you may be temporarily located. Someone can have two residences but only one domicile. For example, you could live in New York and have a home in Ireland, but only one of these places is considered your “domicile.”
The peculiarity of Mr. S v. Ms. S, consisted of the fact that the U.S. citizen wife insisted that New York was NOT her domicile, while the Irish husband pushed forward the case in New York State.
It was clear that the parties resided in New York as a married couple, so the court had to focus on each of the parties’ connections with New York in the year immediately before the divorce was filed, and it ultimately held that New York had jurisdiction. Specifically, the court examined the wiife’s connections to New York and found New York was her domicile for the following reasons:
- She listed that she was domiciled in New York
- She testified that she was in New York with her children in 2007
- She said that she renovated the home in New York
- The children attended schools in New York
- Even when she lived in Ireland, she put her New York address as a forwarding address on the U.S. tax return
- She was registered to vote in New York
- She maintained a New York cell phone number
- She had New York automobile insurance
- She continued to use New York banks
- She returned to New York every single month
In short, the wife’s connections to New York remained strong during the year before the divorce filing, while her connections with Ireland were less than impressive.
THE TAKEAWAY: Even if you live in a foreign country you may continue to retain your New York domicile. Once you do so, however, if you later want to get rid of it, you have the burden of proving that New York is no longer your real home, and you have to do this by “clear and convincing evidence.” Think about it when you register to vote, file tax returns and list a home as your primary residence. If you continue to keep “one foot in New York State,” beware that you can get sued for divorce in New York.
The Law Firm and Mediation Practice of Alla Roytberg, PC