We’re watching the Katie Holmes and Tom Cruise divorce unfold just like everyone else and will no doubt have much to say on the topic in upcoming posts. But for now, we’ve decided to put aside issues of religion and prenuptial agreements, to focus on one seemingly small issue that may have a big impact on Katie Holmes’ divorce filing: state residency requirements. Katie allegedly filed for divorce in New York because she wants sole legal custody of Suri, something that California courts tend not to award, but when the situation warrants, New York courts do.
However, with a mansion in Beverly Hills that still has Suri’s toys strewn about outside, was Katie in the legal right to file for divorce in New York? And what are the residency requirements for filing for divorce in New Jersey — Katie has already hired one New Jersey divorce lawyer to help represent her. Could she have filed here instead? Check out the residency statutes in both states. What do you think?
In New York
According to New York Domestic Relations – Article 13 – § 230 Required Residence of Parties, a Petition for Divorce can be filed when one of the following conditions apply:
1. You and your spouse were married in New York, and either of you is a resident of New York when the divorce action is started and has been a resident of New York for a continuous period of one year immediately before the commencement of the divorce action;
2. You and your spouse have resided in New York as husband and wife, and either of you is a resident of New York when the divorce action is started and has been a resident of New York for a continuous period of one year immediately preceding the beginning of the divorce action;
3. The grounds for divorce occurred in New York, and either you or your spouse has been a resident of New York for a continuous period of at least one year immediately before the beginning of the divorce action;
4. The grounds for divorce occurred in New York, and both you and your spouse are residents of New York at the time of the commencement of the divorce action;
5. Either you or your spouse has been a resident of New York for a continuous period of at least two years immediately preceding the commencement of the divorce action.
In New Jersey
According to New Jersey Statue 2A:34-10, pertaining to residence, in order to file for a divorce in New Jersey, either spouse must have been a resident of the state for at least one year prior to filing. The only exception to the one-year residency requirement is when the grounds for divorce are for adultery. In cases of adultery, the requirement is that at least one spouse must be a New Jersey resident for any amount of time, which can be less than 1 year.