Their love for their spouses may have dried up, but those seeking divorces throughout New York State, and beyond, love Manhattan. In 71 percent of all cases filed in Manhattan over a two-week period ending on Friday, June 7, neither spouse made Manhattan their home, according to data compiled by court personnel working on matrimonial matters in Manhattan.
As a result, spouses living as far away as Romania, Uganda and Argentina have been hauled into court in Manhattan. Though sometimes the tables have been turned, with residents of Saudi Arabia and the Philippines seeking to sue spouses living in New York State but outside of Manhattan.
In toto, 539 divorce cases were filed in New York County during that two-week period. In 384 of those, neither spouse resided in Manhattan. In 70 percent of those cases, both divorcing parties lived within a city borough other than Manhattan; in 15 percent of the cases, at least one of the parties resided in another state; 9 percent in a county within the state but outside New York City; and 6 percent with one spouse living in a foreign county.
The reason why New York County has become the venue of choice for couples living outside the county is somewhat murky, but as a matter of law, it is clear that couples have a right to choose to file in any county in the state as long as one spouse resides in the Empire State.
Over a year ago, Acting Justice Matthew F. Cooper concluded in Castaneda v. Castaneda, 36 Misc.3d 504 that couples with neither spouse living in Manhattan could seek divorces there but that doing so imposed serious burdens on the five judges and their court staff handling matrimonial cases in Manhattan. Even worse, he found the use of Manhattan as a venue could be a tactic that monied spouses use to bludgeon less their less well-heeled partners to default. The only remedy for the problem, Justice Cooper found, would be for the state Legislature to amend the state’s laws regulating a plaintiff’s choice of venue. Click here to read opinion.
The statistics compiled by court personnel add heft to the concerns outlined by Justice Cooper in his May 1, 2012 opinion in Castaneda.
In Castaneda, Justice Cooper wrote that the court system does not track the number of divorce cases filed in a county in which neither spouse resides. But, he noted that judges, referees and others involved in processing Manhattan divorce cases “know that anywhere between 75 and 80 percent of all divorces” filed in their court neither spouse actually lives in Manhattan.
The actual figures may have been slightly less than what an educated guess pointed to a year earlier, but they are close enough to make it clear that the concerns, Justice Cooper outlined in Castaneda are tangible and pose a host of problems.
In the 2012 case, Justice Cooper concluded that the most “probable motive” for the husband’s filing in Manhattan was that his wife resided in Suffolk County with the couple’s two children. Their home is roughly 40 miles from the Supreme Court building Manhattan. Jaime Castaneda, the husband, however resided in Kew Gardens, Queens with only an 11.5 mile trip to the courthouse.
Jamie Castaneda’s lawyer’s commute was even shorter, approximately 8.5 miles. The lawyer for his wife, Elvira, had somewhat longer trip at 44 miles.
While no one can know for certain what motivated Jamie Castaneda’s filing in Manhattan, Justice Cooper said it was possible that the choice of a more distant forum was made with the possibility in mind that it would deter his wife from contesting the divorce and lead to a default: “an unfortunate—and all too frequent —result in out-of-county divorce proceedings.” Of all the possible motivating factors, Justice Cooper termed that one the “most troubling.”
In 2011, he wrote, nearly 50 percent of all divorces in New York City were commenced in New York County. As a result, judges and staff in Manhattan are flooded with a “veritable tsunami” of cases filed by couples living outside of the court’s jurisdiction, which take “precious time” away from cases “involving people who actually live in New York County.”
Other adverse impacts from the practice, Justice Cooper noted, resulted in the added travel time, and expense for the distant party’s lawyers and expert witnesses. The cost problem, he added, was compounded by the emotional costs imposed upon the parties’ children who may be required to travel long distances to meet with their own lawyers and forensic psychologists who must determine what custody arrangements best serve the children.
Without a change in the law, Justice Cooper wrote, judges are powerless to change the venue selected by the plaintiff. The state’s venue provisions, particularly CPLR Section 509, explicitly authorize a plaintiff to select any county in the state to file their lawsuits, a decision which can only be altered by a judge’s ruling upon a motion. Where the defendant defaults, the judge is powerless to change venue, he concluded.
Indeed, Justice Cooper noted that had not Elvira Castaneda’s lawyer, Joseph A. Milligan, filed a motion to change venue, he would have been powerless to take any action to have transferred the case to Suffolk County. It is “particularly frustrating” Justice Cooper wrote, that there is “no court rule or statute which permits the court to sua sponte transfer the cases to a proper venue based upon the parties’ lack of residence.”
Only the fluke of Milligan’s motion for a change of venue gave Justice Cooper an opening to write about the deluge of divorce cases being filed in New York County even though they were untethered to the Manhattan court’s jurisdiction. Milligan’s filing, he wrote, was “one of those rare instances in which such a filing was made.”