Jurisdiction over Non-Resident Spouses

Although there are decisions rendered after the 1976 amendments that continue to adhere to the traditional view that domicile is the sole criterion in determining compliance with Domestic Relations Law ' 230 ' some courts in response to the 1976 amendments have taken a more liberal approach and declined to equate residency as used in Domestic Relations Law ' 230 with domicile ' Usually, durational residency requirements, as here, are an attempt by the State to regulate the availability of divorces to persons who have minimal ties with the State; their enactment is justified as an exercise by the State of its prerogative of overseeing the institution of marriage (Ann., Validity of Statute Imposing Durational Residency Requirements for Divorce Applicants, 57 A.L.R.3d 221). An interpretation of the durational residency requirements of Domestic Relations Law ' 230 that would permit a class of persons who have continuously dwelled within this State for the prescribed duration access to the courts for the purpose of terminating their marital status, but deny access to a class of persons who have been continuously domiciled in New York for the requisite duration would subject Domestic Relations Law ' 230 to attack as violative of equal protection. No compelling State interest can be discerned for justifying a durational residency requirement which bars access to the courts for the purpose of terminating a marriage to a segment of the population having substantial contacts with New York, such as New York domiciliaries, who have continued such status for the applicable duration of time. Accordingly, we conclude that the durational residency requirements may be satisfied by either the traditional method of proving that a party has been domiciled or, in the alternative, has resided in New York State for the continuous period of time specified in the applicable subdivision of Domestic Relations Law ' 230.

In Esser v. Esser, 277 AD2d 926 (4^th Dept. 1999), the court, in dismissing the complaint, elaborated on the Unanue decision, holding that residency could be established either by proof that a person dwelled in New York for a continuous period of one year immediately preceding commencement of a divorce action or by proof that the person was continuously domiciled in New York for that period. Because she relocated to New York less than one year prior to the commencement of the action, the Esser plaintiff was required to establish that she was continuously domiciled in New York for the requisite period of time. The court noted that a person's 'domicile' for the purpose of dissolving a marriage is the place 'where the parties lived together as husband and wife with the intention of making it their fixed and permanent home.' (Scheinkman, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 14, Domestic Relations Law, C230:3, at 29). In determining that the Esser plaintiff met the residency requirement, the trail court had noted that she 'never changed her residence' and that she had 'always voted officially in the State of New York.' The Appellate Division, Fourth Department, found, however, that the record did not support the trial court's findings. Although plaintiff had stated she had always voted in New York and kept a New York driver's license, no evidence was presented to back up those statements. All plaintiff could show was that she had a New York driver's license and voter registration, but not their duration since a time period before she relocated to New York less than a year before commencing her action. Said the Fourth Department, 'Her conclusory testimony that she always intended to reside in New York is insufficient to establish that she is a domiciliary of New York. Thus, the court should have dismissed the complaint.' See also Capdevilla v. Capdevilla, 149 AD2d 312 (1^st Dept 1989). It has been held that a strong presumption exists that a U.S. citizen living in a foreign country does not abandon his or her United States domicile. Dupuy v Wurtz, 53 NY 556 (1873). Addressing the issue of domicile as it relates to DRL ' 230, Carmody Wait 2d ' 114:103, provides: