COVID-19 Update: How we are serving and protecting our clients.

Divorce Litigation Bullet Points 14: No Fault, Residency Requirements and Withdrawing a Divorce

Negotiationpic-300x207Lately, I’ve been frequently adding new updates to my blog as part of a bullet point series on divorce litigation summarizing the more in-depth articles I posted over the years. These bullet point guides aim to offer a quick overview of some of the most common questions and concerns that emerge in litigation.

Though litigation is only one option when it comes to getting court orders or making agreements in a divorce process, it is a common choice, particularly when at least one of the sides of the case will not negotiate or mediate. However, there are a lot of rules and guidelines to be aware of before you move into the litigation process. Today, we’re going to be looking at residency requirements for a New York divorce, and whether it’s possible to withdraw a divorce in litigation.

How Do Residency Requirements Apply to Divorce?

Although many states in the United States share similar rules about divorce litigation, there are differences to the way that cases may be handled, depending on where you live. As a divorce attorney, I support clients in cases of family law in New York, where it’s possible to file for something called “no fault divorce”. This essentially means that you don’t need to give a specific fault reason for the divorce beyond your marriage irretrievably breaking down.  In other words, the marriage is broken, and it is not the fault of the Husband or Wife, the situation is simply that the marriage did not work.

  • The availability of New York’s no fault divorce law makes it easier than it used to be, for divorce cases. However, people moving to New York divorce won’t be able to apply for divorce straight away. You, or the other side, must have lived in New York for at least one or in some circumstances two continuous years before applying with the court for divorce.
  • The New York Domestic Relations law states that if the ceremony for the marriage of the couple was performed in the State of New York then the one-year requirement comes into play. At least one of the spouses must have also had a legal residence in the state for one year continuously before the action. Another situation where the one-year requirement can be utilized is when both spouses have lived together as husband and wife in New York, and one or both needs to have been considered a resident for at least once year continuously before the divorce is filed.
  • There are cases where a spouse may only need to live in New York for one year when other conditions are present. For instance, if the cause for the divorce happened within the state, the 2-year waiting limit may be reduced to one. This was the case for Stancil vs Stancil, where the couple claimed that the cause for the divorce occurred within New York. There are other residency rules concerning divorces other than the aforementioned.
  • Residency requirements exist to prevent a person filing for divorce from simply filing for the end of their marriage in any state that they like. You can’t just find a state with the laws that you like to pursue your divorce.

Is it Possible to Discontinue a Divorce?

When moving through a no fault divorce, it’s sometimes possible for the couple involved to decide that they no longer want to proceed with ending their marriage. The rules of New York Civil Practice Law 3217 suggest that an order from the court to withdraw is not required if no responsive pleading is served.

  • A person can initiate a divorce with the filing of a Summons with Notice. Eventually, a complaint also needs to be drafted and served, although this may not happen in the divorce procedure right away. If a complaint hasn’t been drafted and served, then the inviting party may be able to withdraw the request for a divorce on their own accord. However, the person may have waived the right to withdraw after lengthy proceedings.
  • If a complaint is served, and the defendant in the divorce case serves an answer, the divorce will only be able to be withdrawn after a stipulation is signed by both parties. The court can also issue an order to withdraw the divorce.
  • If a couple chooses to prepare an uncontested divorce package with a divorce lawyer or mediator, where a summons and complaint is served, and the defendant waives their right to answer the complaint and contests the divorce, the rules are slightly different. If a complaint is served with no answer, the divorce might be able to be withdrawn without consent.
  • With support from the right divorce attorney, an argument can be made that the court may believe allows for the divorce to be withdrawn without consent of the other side. However, this is usually on the case if there hasn’t been substantial litigation already into the case. It’s also essential that the court can determine that withdrawing the divorce wouldn’t cause any unfairness on the behalf of the other party.
  • The New York court ultimately reserves the right to determine whether a divorce should be allowed to be withdrawn or not at the request of one or both parties in the case. A divorce attorney may be able to help you get the outcome you want by providing you with the correct guidance and support for your case.

Handling the Complexity of Divorce

Its easy to get confused when you’re dealing with something as complicated as divorce litigation. Sometimes, even determining whether you can apply for divorce in New York as your resident state can be more complex than it seems. Fortunately, with help from the right divorce attorney, you can get the answers and guidance that you need.

If you have any questions about residency requirements in divorce, or you would like to discuss the options available for a no-fault or uncontested divorce, read through the blogs here or reach out to my office to schedule your initial consultation, up to the first half hour is free.  We could also discuss any concerns you might have with withdrawing a divorce. You can get in touch via our online contact form or phone at (516) 333-6555 for a free initial consultation via video conference, telephone or in-person conversation.

Contact Information