before the recent decision of Fish v. Davidson, 2022 NY slip op 01442 (2 Department, 2022), Representation of matrimonial businessmen Wealthy individuals often filed for divorce at the location of the couple’s vacation home rather than Manhattan, as judges in these smaller jurisdictions have historically been more conservative, favoring the wealthy spouse and the higher-network associated with the older child. -Price has less experience with divorce and spouse support settlements, This sportsmanship displeased judges for many years and often fueled litigation even before the case began. but with fish The decision, this platform shopping has been reduced and possibly marks the demise of destination divorce in New York.
Forum shopping has been a common practice for some time now. Article 5 of the Civil Practice Law and Rules (CPLR) provides that the plaintiff chooses the venue, and in matrimonial cases, the venue “should be in the county in which one of the parties lived.” CPLR 503(a). Although a party may have multiple residences in different countries, the key word missing from the language of the statute is the definition of “residence”.
One of the many reasons one may prefer one particular place over another is that, despite the standardization of certain aspects of divorce by statute, judges exercise significant discretion in how they weigh statutory factors. This creates opportunities and concerns for strategic planning, especially when one party plays the housewife and the other the breadwinner. A location may have a reputation of providing long-term, or greater amounts, support to the spouse, or may place a high value on the indirect and direct contributions of the non-titled spouse and thus to that spouse. can provide a large percentage of the value. Title Spouse’s business or partnership interest. Another location may have a history of paying low attorney fees to the non-money spouse.
Often, forum shopping is used to intentionally cause inconvenience to the other spouse; A form of gameplay for which the judges of this state have demonstrated their apparent disdain. In considering a “destination divorce”, Matthew Cooper, now retired Supreme Court Justice of New York County, recognized that defendants in foreign counties are more likely to default or settle rather than assume costly and time-consuming travel costs to court. . The statewide coordinating judge for matrimonial affairs, Justice Jeffrey Sunshine of Kings County, characterized these destination divorces as a “big problem,” a “groove.” [on] limited judicial resources” and often “denied access to justice”.Marital Practice Advisory and Rules Committee, ,Report to the Chief Administrative Judge of the Courts of the State of New York.” (January 2020), pp. 47-53www.nycourts.gov/LegacyPDFS/IP/judiciaryslegislative/pdfs/Matrimonial-MPARCReport2020.pdf.)
holiday homes, places and Fish v. Davidson
On March 9, 2022 the Second Department issued an opinion Fish v. Davidson, which states that a “seasonal” and temporary” Residence in Suffolk County did not meet venue requirements under CPLR 503(a) and ruled that the case should be transferred to New York County where the parties had their primary residence. In addition, the court found that the shelter in place during the COVID-19 pandemic did not create a sufficient amount of permanence to establish a residence in Suffolk County for site purposes.
In this case, Mark Fish, a real estate developer, and his wife, Rachel Davidson, were retired judges of the Newark Superior Court. They had been married for 35 years and had three adult children. During their marriage, they amassed a significant amount of marital wealth, which included a residence in Manhattan and another in Southampton. At the start of the COVID-19 pandemic, Rachel in quarantine with her pregnant and immunocompromised daughter parties at her Southampton home. In August 2020, Mark filed for divorce in Suffolk County. Rachel sought to transfer the case to New York County, alleging that Suffolk County was an unfair place. The trial court rejected his request and held that the venue was appropriate in Suffolk County. Rachel appealed.
The Appellate Division reversed the lower court’s decision and found that the parties primarily resided in New York County, the appropriate location for this divorce. The court focused on several factors certifying the parties’ residence, including New York County where the parties’ significant art collection was located; Mark maintained an office; Rachel was registered to vote; And the Manhattan address was listed on her income tax return, her automobile registration, her bank statement, and Rachel’s driver’s license.
Addressing whether the parties were residents of Suffolk County for venue purposes, the court applied the definition of “residence”. Yaniveth RV Ltd. Realty Co., 27 NY3D 186 (2016). In that case, the court of appeal had held the residence “for some time” and the party “must have a genuine intention to maintain the place as residence with at least some degree of permanence.” With that definition in mind, the Second Department ruled that the parties’ use of Southampton House was “seasonal and temporary”. Only on weekends in the summer, and on certain days of the 2018 Christmas holiday, Neither party was made a resident of Suffolk County. Additionally, the court found that Rachel’s decision to shelter in place at Southampton House did not make her a resident of Suffolk County because it was “indisputable” that her stay was temporary and aimed at helping her daughter.
A frightening future for forum shoppers
What should now be very clear to entice tourists is that seasonal and temporary stay in one holiday home and in place during the pandemic in another county will not establish a residence for shelter purposes. By site law a party can have multiple residences, but Fish v. Davidson The decision indicates that courts will look at specific factors to determine whether that residence is “primary” or permanent. Considering the concerns raised by the judges in this state over the years, Fish v. Davidson The venue marks the future trajectory of the laws. For those shopping forums in New York, the off sign is now on. Careful customer.
Judith L. Polar is Partner and co-chair of the Family Law Group, and Sophie Hill is an associate, both at Prior Cashman LLP in New York City