Residence & Domicile in NY Divorce Law

According to New York Domestic Relations Law § 230, the terms "domicile" and "residence" are synonymous. Further, the residency requirements needed to file a divorce in New York are not satisfied by the bodily presence of parties within a State. In addition to a physical presence, there must be an intention to make New York one's permanent home. Intent can be demonstrated with a lease, tax return, New York car registration, or electricity bill.

Once the plaintiff establishes residency, the court assumes that he/she intends to continue living at the resident. If one party believes that the other intends to change residences, he/she holds the burden of proof. The term "domicile" refers to the party's subjective intent; whereas residency qualifications are determined by his/her actual, physical location. In other words: the person in question must physically dwell in the applicable state for a certain amount of timed before he/she is considered a resident of the state.

We recently represented a client whose husband claimed that he was a resident of New Jersey after we served him with a summons in New York. The address he gave in New Jersey was an address, which after investigation, turned out to be a Post Office Box. He also submitted a New Jersey Driver's license with the same Post Office Box and presented the Post Office Box number as an apartment number.

In an affidavit he admitted to living in New York five years earlier. Our office argued that the husband had not established residency in New Jersey by using a Post Office Box. In order to establish residency (the intention to live in New Jersey), he would have to provide a lease, deed, electric bills, etc. - items that show his intention to actually live in New Jersey. This case is presently in front of a judge, waiting for a decision.

Categories: Divorce