Interstate & International Equitable Distribution Issues

by | Jan 17, 2018 | Divorce

Can You Go to Court in New York State to Divide Property?

Clients frequently call the Law Firm of Poppe & Associates, PLLC, inquiring whether, after they are divorced in another state or country, they can go to court in New York State to divide property.

The answer, generally, is yes.

By statute in New York, following a decree or judgment of divorce in another state or a foreign country, one or both parties can bring an action for equitable distribution in New York. This usually happens when only one party appeared or participated in the divorce action outside of New York (called an “ex parte divorce”).

For example, in the past it was not uncommon for one party to move to Nevada and obtain a Nevada divorce, ending the marriage, without resolving “ancillary issues” such as division of property, alimony (maintenance), child support or child custody.  Either party could then pursue ancillary relief in New York, provided that New York had “jurisdiction,” or power under the federal and state constitutions, and New York state statutes, to hear the matrimonial action.

Jurisdiction is proper in New York if the court finds that the state has sufficient connection with the parties and the marriage to have an interest in ruling on the dispute.

In deciding whether New York jurisdiction is proper over the marriage, the court analyzes such factors as the past and current residence of the parties, their residence during the marriage, and whether the marriage was solemnized in New York, or the conflict between the parties that led to the divorce arose in New York.  The equitable distribution claim will be time-barred six years after the granting of the divorce.

Geographic Location of the Property

When New York takes jurisdiction over an equitable distribution suit, the New York court can divide property no matter where the property is located. The court issues an order which binds the parties with respect to their marital property, including assets held in a foreign country. The courts of the foreign country will usually honor the disposition by the New York court.

Where both parties appear and participate in the matrimonial suit in another state or foreign country (in other words, where the divorce is not ex parte) the other domestic or foreign court will usually divide the property, and when doing so will decide what law, whether the law of New York, or another jurisdiction, should apply to the case.  Sometimes parties can simply agree on the law to be applied.

Full Faith & Credit / Comity

Where the parties jointly divorce in another jurisdiction, but choose to have a New York court rule on equitable distribution, the foreign court in its judgment or decree should state that it has declined jurisdiction over the property division. Otherwise, under a 2003 decision of the Court of Appeals (the highest court of the state of New York), New York courts will refuse to address the property distribution if that issue could have been presented in the foreign action that decided the divorce.

Where both parties participate in the divorce in another jurisdiction, and the court rules on the ancillary issues, New York will usually decline to address those issues.  The decisions of the courts of another state are usually given “full faith and credit” in New York (or whatever state to which the party or parties choose to submit their ancillary claim) under the federal constitution of the United States, and New York will only very rarely disturb the decision of the other state’s courts.  Foreign countries are usually given “comity:” their matrimonial decrees will be honored and enforced, unless the foreign decree for some reason seriously offends a significant policy of the state of New York.

The Law Firm of Poppe & Associates is experienced in handling cases involving interstate and international Family Law issues, and will be happy to handle your interstate or international matrimonial dispute, as well as any other aspect of Family Law in which you may be involved.