New York County Supreme Court Justice Matthew F. Cooper reports in a May, 2012 decision that for 2010, 23% of New York State’s divorce action were commenced in Manhattan, although it is home to only 8% of the state’s population. For 2011, 49.6% of the New York City divorce actions were filed in Manhattan (New York County), although Manhattan, with some 19% of the city’s population, ranks a distant third in population to Kings and Queens Counties.
Justice Cooper in Castaneda v. Castaneda tried to explain why 75 to 80% of the New York County filings involve divorces where both spouses reside outside the county. He speculates that perhaps it is because New York has a reputation for processing divorce actions more expeditiously than elsewhere. Perhaps it is because it is more convenient for attorneys and divorce mills who have their offices in Manhattan. Perhaps 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. [Note: It also may because New York County may be thought to be more favorable for awarding interim or permanent awards of support or counsel fees.]
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.
Justice Cooper’s comments came as he granted a motion to change venue under C.P.L.R. 511. Despite the fact that not one aspect of the marriage or the parties’ lives was remotely connected to Manhattan, the plaintiff-husband nevertheless chose to file in New York County Supreme Court, seeking a divorce upon the grounds of living apart pursuant to a separation agreement. D.R.L. §170(6).
C.P.L.R. §503 requires that actions be commenced in the county in which one of the parties reside. Nonetheless, C.P.L.R. §509 does allows venue to be selected by the plaintiff, even in an improper county. Venue ay then only be changed by consent or upon motion. Here, the wife made such a motion. It was granted.
Justice Cooper then discussed the wider implications of the unfettered filing of divorce actions in New York County: its effect on case load and calendar control.
The cases, often filed en masse by divorce mills, must first be reviewed by over-burdened matrimonial clerks;
time-consuming domestic violence and sex offender registry checks must be conducted;
the file must then be transferred to a judge and the papers again scrutinized;
determinations must be made as to whether the divorce and ancillary relief can be granted;
registry “hits” must be considered and acted upon as appropriate;
and then, if the papers pass muster, the court must go through laborious task undertaken of signing, dating and stamping each Finding of Facts and Conclusions of Law and each Judgment of Divorce and any other Orders.
Throughout this process, the matrimonial clerks office and judges’ chambers are barraged with calls from divorce mills and out-of-area practitioners and litigants and demanding to know when their divorces will be signed.
If the divorce action remains in Manhattan, New York County judges are called upon to make decisions concerning custody, parental access, schooling, medical care, and the like for children who live in other counties and have neither parent living in Manhattan. One of the distinct benefits of sitting in a particular county for any length of time, Justiuce Cooper notes, is that judges become familiar with things like schools, neighborhoods, health care facilities and travel times. That benefit is lost when a judge is dealing with other counties and unfamiliar terrain.
If testimony is necessary concerning the value of the marital residence in some distant suburb, an added expense is incurred for the appraisers’ travel time to Manhattan. Where custody or visitation is an issue, the children may be forced to make repeated trips to Manhattan so that they can meet with the attorney appointed to represent them and the forensic psychologist appointed to evaluate them.
Moreover, Justice Cooper noted, with the divorce judgment being entered in New York County, the Family Court or Supreme Court in the county where the party resides will often direct the parties to return to New York County for post-judgment relief because that is where the judgment was entered. This, of course, places a heavy burden on the litigant, particularly those of limited means who cannot afford a lawyer and must face the daunting task of traveling to Manhattan to file a motion.
Justice Cooper shared his frustration. There is nothing an individual judge can do about it. There exists no court rule or statute which permits the court on its own to transfer a case to a proper venue. CPLR 510 requires that a defendant seek such a transfer by motion. If a trial court has the temerity to order a change of venue absent a motion, that order will be promptly reversed [Justice Cooper citing Travelers Indem. Co. of Ill. v. Nnamani, 286 A.D.2d 769 (2d Dept 2001)].
The remedy, then, lies only with the Legislature. The Legislature can amend the CPLR to require plaintiffs in divorce actions to file in a county where at least one of the parties lives, unless special circumstances are shown. Allternatively, trial judges may be given the discretion to sua sponte transfer cases that do not belong in the county in which they were filed. Short of legislative action, perhaps the court system as an interim measure can implement a rule that curbs the mass-filing practices of the divorce mills. Until something is done, it appears the practice will only grow, the numbers in New York County will only climb, and the consequences for litigants will only worsen.