How Divorce Jurisdiction Can Be Determined by Your Shoes

Sounds crazy but it happened. The couple lived a bicontinental jet set life. The wife tried to commence the divorce in New York County because, unlike Manhattan, Monaco does not have a concept of shared marital property. The husband contested that the New York jurisdiction was the couple’s primary residence. One of the arguments made was that the wife kept the majority of her valuable shoe collection in Monaco. Read an article here. The New York Court denied jurisdiction, See, First Department Case here.

How do normal people determine jurisdiction for a divorce proceeding?

According to Domestic Relations Law Sec 230, 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.

If you want New York to be your jurisdiction make sure you have proof that you have been living here for the requisite period of time. Start by moving your shoe collection.

If you would like to determine whether New York is the proper jurisdiction for your divorce, contact Diana Mohyi Attorney at Law for guidance.

The Difference between a Contested and Uncontested Divorce

What is the difference between a Contested and Uncontested Divorce in New York? One is cheaper and quicker to accomplish if done correctly. The other can be an arduous painful process lasting years and leaving the wary and unreasonable possibly bankrupt.

An Uncontested Divorce is one where both parties voluntarily sign an agreement which resolves all aspects of the divorce. Every single thing is agreed upon from child custody and child support to maintenance and equitable distribution. Even disagreement on one single issue makes the divorce contested. The parties cannot waive child support and if the calculation of child support is incorrect or unfair, then the court will reject the filing. The time from filing to signing varies between counties. New York County has signed an uncontested divorce order within 3-4 months while the Bronx and Brooklyn has signed it within 6 months. The time periods vary depending on how many people are ahead of you. One mistake can result in a rejected filing which extends the time process.

In a Contested Divorce at least one or more issues is not agreed upon by the parties. A Contested Divorce requires the filing of a complaint for divorce by one party–the Plaintiff—who then serves it on the other party–The Defendant. The Defendant must then either file and serve an Answer to the Complaint or may file a motion to dismiss because they contest jurisdiction. They may, for example, perfer to have the divorce occur in a different jurisdiction that is more favorable to them. Practically speaking it does not matter whether someone is a Plaintiff or Defendant because most divorces are typically filed as no fault, otherwise known as ‘irreconcilable differences’ or ‘‘irretrievable breakdown.’

If you need assistance in filing a Contested or Uncontested Divorce, Diana Mohyi Attorney at Law can assist you to navigate the minefield of Matrimonial Law Practice. Contact her for a consultation.

Why Can’t You Get a Divorce in New York Family Court?

It seems obvious that family court should handle all things family but in New York Courts that is not true. According to the New York Family Court Act Section 115, the Family Court has exclusive original Jurisdiction or control, over the following:

    • child abuse and neglect proceedings
    • child support proceedings
    • proceedings to determine paternity and for the support of children born out-of-wedlock
    • proceedings to permanently terminate parental rights to guardianship and custody of a child
    • proceedings concerning whether a person is in need of supervision
    • proceedings concerning juvenile delinquency
    • proceedings involving handicapped children
    •  proceedings concerning adoption and custody of children
    • proceedings concerning the uniform interstate family support act
    • proceedings concerning children in foster care and care and custody of children
    •  proceedings concerning former foster children 
    • proceedings concerning destitute children
    •  proceedings concerning guardianship and custody of children by reason of the death of, or abandonment or surrender by, the parent or parents
    •  proceedings concerning standby guardianship and guardianship of the person
    • proceedings concerning the interstate compact on juveniles
    • the interstate compact on the placement of children
    • the uniform child custody jurisdiction and enforcement act
    •  provided that tribal courts of Indian tribes designated as such by the state of New York shall have jurisdiction over such child custody proceedings involving Indian children to the same extent as federally designated Indian tribes upon the approval of the state office of children and family services 
    • concurrent jurisdiction with the criminal court over all family offenses
    • jurisdiction to direct the commencement of proceedings to suspend the driving privileges, recreational licenses and permits, and license, permit, registration or authority to practice of persons who are delinquent in their child or combined child and spousal support obligations or persons who have failed, after receiving appropriate notice, to comply with summonses, subpoenas or warrants relating to paternity and child support proceedings

In order to obtain a divorce, one must file an action in the New York Supreme Courts. The Family Court only has jurisdiction in matrimonial action only when the case is referred to it by the Supreme Court. If you are seeking a divorce you must file a complaint for divorce in the Supreme Court of the County where the parties were married and either party resided for at least one year prior to the filing pursuant to Domestic Relations Law 230.

If you are confused about where to obtain your divorce and need assistance in filing or defending a divorce action, Diana Mohyi Attorney at Law P.C. can represent you. Contact Attorney Diana Mohyi for a consultation.

Why The Best Interests of Your Children in a Divorce Are Not Your Interests

When a married couple with minor children seeks a divorce they often forget that their interests are not automatically aligned with the best interests of their child. If they cannot agree on a custody and visitation arrangement, the Court steps in to protect the children by appointing a children’s attorney aka guardian ad litem and by appointing at least one forensic psychologist or physician to evaluate which home environment would be better for the children. As you may suspect these paraprofessionals can contribute to a very expensive divorce bill. Therefore it is best that the parties come to a mutual decision about custody and visitation without involving third parties who will be required to approve any agreement the parents make once they get involved.

According to New York’s Domestic Relations Law, the parent to be awarded custody is not an automatic assumption. DRL 70 states that “there shall be no prima facie right to the custody of the child in either parent, but the court shall determine solely what is for the best interest of the child.’ DRL 240 also echos that language. This concept has been expanded in New York’s body of case law resulting in factors which help a court determine what is in the best interests of the child.

(1) The parent who has been the primary caretaker;
(2) The age and health of the parties;
(2) The need for stability and continuity in the child’s life;
(3) The relative financial ability of each parent;
(4) The quality of home environment and the parental guidance each parent provides;
(5) The ability of each parent to provide for the child’s emotional and intellectual development;
(6) The relative fitness of each parent;
(7) The length of time the present custodial arrangement has been in effect; and
(8) The desires of the child.

Ultimately, unless being around a certain parent is inherently bad for a child, a child needs both parents. A child is not property. A child is a human being who only has one set of biological parents. No matter how much a party may hate their spouse, there is nothing they can do to change that so they might as well start by agreeing for the sake of their child.

Why No Fault Divorce Is Always The Best Choice

Even if you are adamant to point the finger at your spouse for the reason you want a divorce, it makes alot more sense to choose the ‘No Fault’ option not only for the sake of time but also resources.

In New York, it is typical that the parties will file for a ‘no fault divorce’ otherwise known as ‘irretrievable breakdown’ because then there is no need to prove the grounds upon which the parties are seeking a divorce. For example, no need to prove the spouse actually cheated on you which not only sounds like it could be messy but it is. Choosing that route will cost alot of time and effort and may even result in you not being able to prove the grounds of your divorce, which is a requirement to obtain a divorce.

According to Section 170 of the New York Domestic Relations Law, there are 7 grounds upon which a divorce may be obtained:

(1) Cruel and Inhumane Treatment

(2) Abandonment

(3) Confinement aka Prison Sentence of a Spouse

(4) Adultery

(5) Judgement or Decree of Separation

(6) Written Separation Agreement

(7) Irretrievable Breakdown for a Period of 6 Months aka the ‘No Fault’ divorce.

If you choose the ‘No Fault’ option you won’t have to hang your laundry out to dry longer than it should. Diana Mohyi Attorney at Law P.C. can help you initiate the divorce and assist you in coming to a resolution that will help you start the next chapter of your life.

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