Can I divorce my husband from another state if we are in different states?
05/21/2007 - Divorce - State: ALL #5454
I left my husband in AZ. We lived there for 7yrs. we have one son who is 5yrs. I came to NY, with my son to get away from him. He knows where I am and our son is with me. He took us to the airport and has sent us mail, boxes with our clothes and toys for our son. How do I get a dirvorce from another state. We have only been here two months. Our son is in school here. I have no money and no idea what to do. Also, can he have me charged with kidnapping? He said he would before when I wanted to leave him before. The cops were called to our house a few nights before I left. He was abusive but I have no police reports or anyway to prove it. I never said anything.
Based on the information provided, you do not seem to qualify to file for divorce in NY. The NY statute regarding residency requirements for filing a divorce is as follows:
§ 230 Dom. Rel. Required residence of parties.
An action to annul a marriage, or to declare the nullity of a void marriage, or for divorce or separation may be maintained only when:
1. The parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
2. The parties have resided in this state as husband and wife and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
3. The cause occurred in the state and either party has been a resident thereof for a continuous period of at least one year immediately preceding the commencement of the action, or
4. The cause occurred in the state and both parties are residents thereof at the time of the commencement of the action, or
5. Either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action.
You may be able to file for divorce in the state of Arizona. The Arizona statute regarding residency requirements for filing for divorce in Arizona is as follows:
At least one of the parties to the action for dissolution of marriage must have resided in the State of Arizona for at least ninety (90) days prior the filing of the action.
The following are applicable statutes in NY relating to kidnapping:
§ 135.00 Penal. Unlawful imprisonment, kidnapping and custodial interference; definitions of terms.
The following definitions are applicable to this article:
1. "Restrain" means to restrict a person's movements intentionally and unlawfully in such manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent and with knowledge that the restriction is unlawful. A person is so moved or confined "without consent" when such is accomplished by (a) physical force, intimidation or deception, or (b) any means whatever, including acquiescence of the victim, if he is a child less than sixteen years old or an incompetent person and the parent, guardian or other person or institution having lawful control or custody of him has not acquiesced in the movement or confinement.
2. "Abduct" means to restrain a person with intent to prevent his liberation by either (a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use deadly physical force.
3. "Relative" means a parent, ancestor, brother, sister, uncle or aunt.
§ 135.20 Penal. Kidnapping in the second degree.
A person is guilty of kidnapping in the second degree when he abducts another person.
Kidnapping in the second degree is a class B felony.
§ 135.25 Penal. Kidnapping in the first degree.
A person is guilty of kidnapping in the first degree when he abducts another person and when:
1. His intent is to compel a third person to pay or deliver money or property as ransom, or to engage in other particular conduct, or to refrain from engaging in particular conduct; or
2. He restrains the person abducted for a period of more than twelve hours with intent to:
(a) Inflict physical injury upon him or violate or abuse him sexually; or
(b) Accomplish or advance the commission of a felony; or
(c) Terrorize him or a third person; or
(d) Interfere with the performance of a governmental or political function; or
3. The person abducted dies during the abduction or before he is able to return or to be returned to safety. Such death shall be presumed, in a case where such person was less than sixteen years old or an incompetent person at the time of the abduction, from evidence that his parents, guardians or other lawful custodians did not see or hear from him following the termination of the abduction and prior to trial and received no reliable information during such period persuasively indicating that he was alive. In all other cases, such death shall be presumed from evidence that a person whom the person abducted would have been extremely likely to visit or communicate with during the specified period were he alive and free to do so did not see or hear from him during such period and received no reliable information during such period persuasively indicating that he was alive.
Kidnapping in the first degree is a class A-I felony.
§ 135.30 Penal. Kidnapping; defense.
In any prosecution for kidnapping, it is an affirmative defense that (a) the defendant was a relative of the person abducted, and (b) his sole purpose was to assume control of such person.
§ 135.45 Penal. Custodial interference in the second degree.
A person is guilty of custodial interference in the second degree when:
1. Being a relative of a child less than sixteen years old, intending to hold such child permanently or for a protracted period, and knowing that he has no legal right to do so, he takes or entices such child from his lawful custodian; or
2. Knowing that he has no legal right to do so, he takes or entices from lawful custody any incompetent person or other person entrusted by authority of law to the custody of another person or institution.
Custodial interference in the second degree is a class A misdemeanor.
§ 135.50 Penal. Custodial interference in the first degree.
A person is guilty of custodial interference in the first degree when he commits the crime of custodial interference in the second degree:
1. With intent to permanently remove the victim from this state, he removes such person from the state; or
2. Under circumstances which expose the victim to a risk that his safety will be endangered or his health materially impaired.
It shall be an affirmative defense to a prosecution under subdivision one of this section that the victim had been abandoned or that the taking was necessary in an emergency to protect the victim because he has been subjected to or threatened with mistreatment or abuse.
Custodial interference in the first degree is a class E felony.
The following are applicable statutes in Arizona relating to kidnapping:
In this chapter, unless the context otherwise requires:
1. "Relative" means a parent or stepparent, ancestor, descendant, sibling, uncle or aunt, including an adoptive relative of the same degree through marriage or adoption, or a spouse.
2. "Restrain" means to restrict a person's movements without consent, without legal authority, and in a manner which interferes substantially with such person's liberty, by either moving such person from one place to another or by confining such person. Restraint is without consent if it is accomplished by:
(a) Physical force, intimidation or deception; or
(b) Any means including acquiescence of the victim if the victim is a child less than eighteen years old or an incompetent person and the victim's lawful custodian has not acquiesced in the movement or confinement.
13-1302. Custodial interference; child born out of wedlock; defenses; classification
A. A person commits custodial interference if, knowing or having reason to know that the person has no legal right to do so, the person does one of the following:
1. Takes, entices or keeps from lawful custody any child, or any person who is incompetent, and who is entrusted by authority of law to the custody of another person or institution.
2. Before the entry of a court order determining custodial rights, takes, entices or withholds any child from the other parent denying that parent access to any child.
3. If the person is one of two persons who have joint legal custody of a child takes, entices or withholds from physical custody the child from the other custodian.
4. At the expiration of access rights outside this state, intentionally fails or refuses to return or impedes the return of a child to the lawful custodian.
B. If a child is born out of wedlock, the mother is the legal custodian of the child for the purposes of this section until paternity is established and custody or access is determined by a court.
C. It is a defense to a prosecution pursuant to subsection A, paragraph 2 if both of the following apply:
1. The defendant has begun the process to obtain an order of protection or files a petition for custody within a reasonable period of time and the order of protection or petition states the defendant's belief that the child was at risk if left with the other parent.
2. The defendant is the child's parent and has the right of custody and the defendant either:
(a) Has a good faith and reasonable belief that the taking, enticing or withholding is necessary to protect the child from immediate danger.
(b) Is a victim of domestic violence by the other parent and has a good faith and reasonable belief that the child will be in immediate danger if the child is left with the other parent.
D. A violation of this section is:
1. A class 3 felony if committed by a person other than the parent or agent of the parent or custodian or agent of the custodian.
2. Notwithstanding paragraph 3 of this subsection, a class 4 felony if the child or incompetent person is taken, enticed or kept from lawful custody out of this state by the parent or agent of the parent or custodian or the agent of the custodian.
3. A class 6 felony if committed by a parent or agent of the parent or custodian or agent of the custodian.
4. A class 1 misdemeanor if the child or incompetent person is voluntarily returned without physical injury prior to arrest or the issuance of an arrest warrant.
13-1304. Kidnapping; classification; consecutive sentence
A. A person commits kidnapping by knowingly restraining another person with the intent to:
1. Hold the victim for ransom, as a shield or hostage; or
2. Hold the victim for involuntary servitude; or
3. Inflict death, physical injury or a sexual offense on the victim, or to otherwise aid in the commission of a felony; or
4. Place the victim or a third person in reasonable apprehension of imminent physical injury to the victim or such third person.
5. Interfere with the performance of a governmental or political function.
6. Seize or exercise control over any airplane, train, bus, ship or other vehicle.
B. Kidnapping is a class 2 felony unless the victim is released voluntarily by the defendant without physical injury in a safe place prior to arrest and prior to accomplishing any of the further enumerated offenses in subsection A of this section in which case it is a class 4 felony. If the victim is released pursuant to an agreement with the state and without any physical injury, it is a class 3 felony. If the victim is under fifteen years of age kidnapping is a class 2 felony punishable pursuant to section 13-604.01. The sentence for kidnapping of a victim under fifteen years of age shall run consecutively to any other sentence imposed on the defendant and to any undischarged term of imprisonment of the defendant.
Please see the information at the following links:
http://definitions.uslegal.com/k/kidnapping/ for the legal definition of kidnapping.
05/21/2007 - Category: Divorce - State: ALL #5454
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