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

by | Feb 18, 2020 | Divorce Long Island, NY

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:

  • 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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