New York’s Domestic Relations Law, Section 230, sets residency requirements for married couples seeking to divorce in the state, which vary in length – one or two years — depending upon whether they were married in New York and have lived in the state continuously. This creates a problem for out-of-state same-sex couples who come to New York to marry and then return to a home jurisdiction that does not recognize same-sex marriages. The problem is compounded, of course, if they want to divorce without at least one of them establishing residency in New York. This is the problem faced by Andrej Gruszczynski and Wiktor Jerzy Twarkowski, Polish citizens who were married in the New York City Clerk’s Manhattan Marriage Bureau on December 6, 2013, having traveled to New York specifically to get married, and then returned to their home in Warsaw. After a few years of marriage, they “mutually decided that they did not want to remain married to one another,” writes Justice Matthew F. Cooper in Gruszczynski v. Twarowski, 2017 N.Y. Slip Op. 27348, 2017 WL 4848485 (N.Y. Supreme Ct., N.Y. Co., Oct. 26, 2017), “but because Poland does not recognize same-sex marriage in any form, the parties could not turn to their local courts to obtain a divorce.”
They sought legal advice, and were counseled to file for divorce in New York. Gruszczynski’s attempt to do so by filing the papers in New York County’s “uncontested matrimonial calendar” in September 2016 was rejected by the Matrimonial Clerk. The complaint for divorce alleges that there are no children, no assets to divide, no requests by either spouse for spousal maintenance, and no contest by the parties, who are mutually agreed that they should divorce. All they desired was that a judge sign an order dissolving the marriage, with the only ground cited for divorce being “irretrievable breakdown of the relationship” by their mutual agreement to end it. But the Clerk found that as both spouses reside in Poland, the statutory residential requirement of one year applicable to their situation acts as a bar, and the Clerk refused to accept the filing.
Their lawyer, Livius Ilasz, then filed a motion with Justice Cooper, seeking an order permitting an uncontested divorce despite the lack of residence. In affidavits accompanying the motion, both parties described how they traveled to New York City “specifically to avail themselves of this state’s right to marry, a right not afforded to them by their own country,” Cooper explained. The men described “their need to avail themselves of New York’s no-fault divorce law so that they can dissolve a marriage that neither party wishes to continue,” wrote Cooper, and they “stress that if New York refuses to entertain the proceeding, they will face the prospect of being unable to find any forum in which they can be divorced.” They called on the equitable powers of the court to waive the residency requirement and allow them to dissolve their marriage.
The case harkens back to the “wed-lock” phenomenon experienced by U.S. same-sex couples prior to June 26, 2015, when same-sex marriage (and, correlatively, divorce) became available in every state by judicial fiat from the Supreme Court. Reports surfaced in the media of occasional judges in non-equality states who were willing to bend the rules to help out local residents who had married out of state and needed to get a dissolution of a civil union, domestic partnership, or even a marriage. But published decisions on the issue are scarce, so Justice Cooper’s effort may fill an important legal gap now for foreign nationals who come to the U.S. to marry and then return home.
“There are good reasons to allow this uncontested divorce action to proceed irrespective of the parties’ inability to meet the one-year residency requirement,” he wrote. He found that the plaintiff had made a “compelling argument that, under the circumstances presented here, a strict application of DRL Sec. 230 is inequitable and discriminatory.” In an introductory portion of the opinion, the judge set out some background history, including how New York City had embarked on a promotional campaign after marriage equality became available in the state to lure out-of-staters to New York to get married, generating substantial additional business for the city’s hotel, restaurant, tourism and retail businesses. Justice Cooper quotes a figure of a quarter of a billion dollars in extra business revenues during the first 12 months of the marriage equality era in New York, attributed to a statement issued in July 2012 by Mayor Michael Bloomberg. Thus, New York was explicitly inviting people, such as the parties in this case, to come to New York to get married.
“Having accepted New York’s invitation to come and exercise their right to marry as a same-sex couple, the parties now find that they are being deprived of the equally fundamental right to end the marriage. Thus, they face the unhappy prospect of forever being stuck in their made-in-New York marriage, unable to dissolve it here or in their home country. Clearly, equity demands that the parties be spared such an excruciating fate,” Cooper wrote, noting a parallel decision by the Albany-based Appellate Division, 3rd Department (Dickerson v. Thompson, 88 App. Div. 3d 121 (2011)), authorizing a New York trial court to dissolve a Vermont Civil Union so that one of the civilly united parties would not have to move to Vermont to establish residency in order to terminate the relationship there.
Cooper explained the policy concerns that led New York to establish residency requirements for divorce. At a time when New York had liberalized its divorce law, there was fear that out-of-staters seeking to escape more demanding requirements in their home states (such as proving adultery by one partner, for example, for a fault-based divorce) would flock to New York to divorce, inundating the courts with the matrimonial contests of citizens of other states. However, since those days divorce laws throughout the country have been dramatically altered to allow no-fault divorce everywhere – including, among the last to join the trend, recently in New York – so that the incentives to come to New York specifically to divorce – at least from elsewhere in the United States – have disappeared. Given the current situation, wrote Cooper, “It is difficult to see how permitting plaintiff and defendant to pursue their uncontested divorce here would somehow open the floodgates to our courts.” He pointed out that in the absence of any interest by Poland in adjudicating matrimonial issues for same-sex couples, New York is actually the jurisdiction having the most substantial interest in this marital relationship, which, after all, New York created.
“Basic fairness and social justice, along with the lack of any adverse impact on this state and its court system, all appear to be sufficient reasons to allow plaintiff to maintain this action for an uncontested divorce,” Cooper wrote. He also noted that some prior New York rulings had held that the residency provisions of Sec. 230 were not “a jurisdictional requisite” and, as the defendant was not objecting to the jurisdiction of the court based on the lack of residency of either party, the “defense” of lack of jurisdiction was effectively waived.
Granting the plaintiff’s motion, the court directed him to resubmit the uncontested divorce papers to the Matrimonial Clerk within 30 days, and the Clerk was directed to accept and forward the papers, “including the proposed judgment of divorce,” back to the judge’s chambers “for review and signature.” Nobody is going to appeal this ruling, so there will not be an appellate ruling that could create a binding precedent on trial courts, but Justice Cooper obviously took pains to write an opinion that would be a very persuasive precedent for future reference.