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How to File a Long Island Divorce if Spouse is Out of State

by | Feb 18, 2020 | divorce, divorce lawyer long island ny, News and Events

If you’re considering filing for divorce but your spouse lives out of state, the process can become trickier. Will you be able to file in New York, or will you have to divorce your spouse in another state? Here’s what you need to know.

Check the Residency Requirements of Both States

First, it’s important to check the residency requirements for divorce in both states. If one of you does not meet the residency requirements of your state, this simplifies the process and limits you to filing for divorce only in the state where one spouse meets residency guidelines. If you both meet residency requirements, you can select which state in which you want to file.

New York residency requirements are as follows:

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  • If only one spouse resides in the state of New York at the time of filing, that spouse must have lived in the state two or more years prior.
  • A one-year residency requirement may be imposed when:
    • The marriage occurred in New York and one spouse currently resides in the state, or
    • Both spouses lived in New York and one spouse currently resides in the state, or
    • The grounds for the divorce occurred within the state.

Should You Be the First to File for Divorce?

If you and your ex both meet the residency requirements of your states, you each may file for divorce in your state. However, the state of the spouse who was the first to file generally maintains jurisdiction over the case. If your ex files before you, you may be required to travel to attend negotiations or court appearances in their state. In this case, it’s often in your best interest to file before your spouse so you don’t have to incur the time, cost, and inconvenience of dealing with an out-of-state divorce.

How the U.S. Full Faith and Credit Clause May Impact Your Case

The Full Faith and Credit Clause is a U.S. Constitutional law that dictates states must honor divorce decrees granted by other states. For example, if you and your ex were granted a divorce in New York and your ex moved to New Hampshire, New Hampshire would need to honor the terms of the divorce. If your spouse was ordered to pay alimony, a New Hampshire court would likely become involved in the enforcement of the decree and may impose penalties for individuals in contempt of court.

The Process of Interstate Divorce

An out-of-state divorce takes place similarly to an in-state divorce. You’ll go through the steps of:

  • Notification. The defendant named in the divorce is served with a notice of intent to divorce, along with the specific terms the plaintiff is requesting. If the divorce is filed on Long Island, the defendant has 20 days to respond to the complaint.
  • Temporary hearing. A preliminary hearing will be scheduled to address legal matters that are unable to wait for mediation or litigation, such as child custody and spousal support.
  • Negotiation or mediation. If possible, you and your ex-spouse will attempt to negotiate the terms of your divorce with each other and will ideally reach an agreement through mediation with your legal counsel and a neutral third party.
  • Litigation. If you and your ex aren’t able to reach an agreement on one or more matters related to your divorce, your divorce becomes contested and you’ll proceed to litigation, where a judge will make the final decision.
  • Appeals. Typically, most issues are addressed at the time the divorce is finalized. However, appeals may be necessary, such as if your ex was awarded sole custody and you wish to continue to fight for custody and visitation rights.

Should You Work with a Long Island Divorce Lawyer?

If you’re interested in getting a divorce but your spouse lives outside the state of New York, you still have the option to dissolve your marriage. However, the process often becomes more complex. It’s important to consult with an experienced Long Island divorce attorney to learn more about your rights and available options in an out-of-state divorce as soon as possible. Contact Hornberger and Verbitsky, P.C. today to make an appointment at 631-923-1910

 

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Everett Roberts
Everett Roberts
14:30 18 Mar 20
Going through a divorce was very challenging and emotional. Searching for an attorney can be challenging as well when you consider everything that is at stake. The choice I made to work with Rob Hornberger was surely the best choice available. His professionalism, expertise, and understanding made him and the entire team perfectly suited to achieve the outcomes I desired. Rob was always available to answer my questions and give me advice and legal considerations that affected my situation. The support I received from his staff was exemplary as well. The staff was courteous, kind, and also very professional. Thank you so much Rob and team for a worry free experience.
Annemarie Cusumano
Annemarie Cusumano
21:41 17 Mar 20
Being in family court especially when your children are on the line is extremely emotional and stressful but working with Robert and Christine put me at ease and made the process as pleasant as a situation like that can be. I have a now 3 year old daughter (who is the most important person in my life) and I've been working with them for over two years since my daughter was 7 months old, the case has been up and down and through it all Rob and Christine have never given up. My original case was due to a neglect charge. Cps is not easy to work with, but Rob and Christine were vigilant and I ended up getting my daughter back within 8 months and did not have to plead guilty to the neglect. Currently I am in family court to figure out a custody agreement. They are professional, empathetic, and patient. They have always explained everything thoroughly, informed me of all my options and advised me of what my best option would be. They always respond quickly when I contact them with questions or concerns and most importantly they fight for me in court and don't give up even when things get rough. Before hiring Rob and Christine I met with other attorneys who did not make me feel confident or comfortable at all about my case, so I am very grateful to have found Rob and Christine and to be represented by such great attorneys. I highly recommend them for any family court matters and will definitely continue to use them in the future if needed.
Steven Frierman
Steven Frierman
02:25 07 Mar 20
After meeting with 3 different lawyers, we felt Robert understood us best and he genuinely had our best interests at heart. This helped us resolve a few minor issues in a timely fashion and make a potentially stressful situation go more smoothly.Thank you
Randi Gottlieb
Randi Gottlieb
18:47 03 Mar 20
Hornberger Verbitsky, P.C. - Mr. Robert Hornberger and his staff are beyond professional, they quickly gave me my consultation appointment, and helped me with an after-Divorce issue. Mr. Hornberger was empathetic and explained to me what I should expect. Mr. Hornberger was extremely professional and advised me of my options, he helped me proceed with accurate and smart decisions. I wish I had Mr. Hornberger and his highly recommended staff when I was getting divorced. I would highly recommend Robert and his staff to anyone who is getting a divorce or in need of help with situations after the divorce!
Rob Spielmann
Rob Spielmann
22:15 27 Feb 20
They made our process so easy. They were there to answer and help with any questions that came up. Very friendly

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