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Castaneda v. Castaneda

Supreme Court, New York County

May 1, 2012

Jaime Castaneda, Plaintiff,
v.
Elvira Castaneda, Defendant.

For the Plaintiff Peña & Khan, PLLC

For the Defendant Joseph A. Milligan, Esq.

MATTHEW F. COOPER, J.

In this matrimonial action, the defendant-wife moves for a change of venue from New York County to Suffolk County. The basis for her motion is that venue is improper in New York since she resides in Suffolk and the plaintiff-husband resides in Queens. Although the motion was submitted without opposition and could be granted summarily on default, a more detailed examination is warranted as to the recurrent practice of bringing divorce actions in New York County regardless of where parties to the divorce actually live. As will be discussed, the practice poses significant problems for parties who have no connection to this county, particularly defendants who are unrepresented by counsel, as well as for the court system as a whole.

Manhattan: A Mecca for Matrimonial Matters

New York County has the dubious distinction of being the divorce capital of New York State. This does not mean, however, that the inhabitants of the island of Manhattan are somehow more prone to failed marriages. It means that a disproportionate number of the divorce actions brought in New York State, and in New York City in particular, are filed in New York County. The last census showed that only 8 percent of the State's population resides in Manhattan, but the matrimonial filing statistics for 2010, the latest year for which statewide filing figures are available, revealed that 23 percent of the divorce actions commenced in New York State were filed in New York County. Thus, just about one out of every four divorces that occurred in this State took place here.

Even more striking are the 2011 divorce filing statistics for the five counties that comprise New York City. In terms of population, New York County ranks a distant third to Kings County and Queens County, and only marginally ahead of Bronx County. Yet no other county came anywhere close to the 15, 342 divorce actions, be it contested or uncontested, filed here last year. In fact, of all the divorces brought in New York City, an astounding 49.6 percent of them were commenced in New York County. In other words, one out of every two divorces commenced in this city of more than 8 million people ended up last year in a county that has a population of little more than 1.5 million.

Why Manhattan?

What accounts for this glaring disconnect between the number of people who reside in Manhattan and the number of divorces filed here? The explanation, as it turns out, is strikingly clear: it has become the accepted practice for attorneys and non-attorney divorce processing services, the so-called divorce mills, to commence divorce proceedings in New York County despite the fact that neither spouse lives here. And although no official statistics track the number of cases falling into this category, any judge, special referee or clerk in this court who is involved in handling matrimonial matters knows that anywhere from 75 to 80 percent of the filings involve divorces where both spouses reside outside of New York County.

What is it about New York County that explains this penchant for filing divorce actions here as opposed to a county where at least one of the parties resides? That answer is not entirely clear. Perhaps it is because New York has a reputation for processing divorce actions, particularly uncontested divorces, more expeditiously than elsewhere. Perhaps it is because it is more convenient for attorneys and divorce mills who have their offices in Manhattan to file here. Or perhaps, and less benignly, it is because the chances of a party obtaining an uncontested divorce on default increase if the action is brought in a venue far removed from where the defendant actually lives. Whatever the reason may be, those who file divorces, whether legitimate matrimonial attorneys or the non-attorney divorce mills that skirt the edges of legality by preparing, serving and filing divorce papers on behalf of their "clients, " clearly perceive an advantage to filing in Manhattan.

The Instant Case and Defendant's Motion to Change Venue to Suffolk County

Background

This case presents a classic example of a New York County divorce in which neither party resides in New York County. Plaintiff-husband lives in Kew Gardens, Queens County. Defendant-wife lives in North Lindenhurst, Suffolk County. The parties have two minor children, both of whom reside with defendant in Suffolk County. There is no indication that the parties ever resided, worked or owned property in this county. Even the parties' attorneys are without ties to New York County; plaintiff's attorneys have their offices in Jackson Heights, Queens County and defendant's attorney is located in Babylon, Suffolk County. But despite the fact that not one aspect of the marriage or the parties' lives is remotely connected to Manhattan, plaintiff nevertheless chose to file for divorce in New York County Supreme Court.

Plaintiff commenced this action for divorce in September 2011 by filing with the New York County Clerk and then serving on defendant a summons and verified complaint. The complaint alleges that the parties have lived separate and apart for more than one year pursuant to a valid separation agreement. After being served, defendant interposed a verified answer in which she asserts that the parties vitiated the separation agreement by residing together after its execution. Approximately two months later, defendant, pursuant to Civil Practice Law and Rules ("CPLR") 511(a), served a demand to change venue from this county to defendant's home county of Suffolk. [1] Having failed to receive a response to ...


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