During the COVID-19 pandemic, many Manhattan families retreated to weekend and vacation homes located elsewhere in New York state. But what happens if one spouse decides it is time to file for divorce? Can the vacation home in which one or more parties "sheltered in place" be deemed the residence for venue purposes? Even absent a decampment due to COVID, can a weekend or vacation home ever satisfy the residency requirement for venue purposes? While New York's venue statute specifically contemplates that a New York domiciliary can have more than one residence, the application of the statute may have changed based on a recent Second Department decision.

In Fisch v. Davidson, 204 A.D.3d 104 (2d Dep't 2022), the Appellate Division, Second Department, reversed the decision of the lower court that venue was proper and ordered that the action be transferred to New York County, holding that the wife's temporary relocation to the parties' "seasonal second home" was insufficient for venue to lie in Suffolk County. Briefly, the facts are as follows: The parties married in 1985 and resided in New Jersey during much of the marriage, where they raised their three daughters. They rented a pied-á-terre in Manhattan beginning in the late 1990s and then purchased an apartment in 2010. In 2012, the year after their youngest child graduated high school, they purchased a home in Southampton and within a few years, built a new home on the property that cost in excess of $4 million. Meanwhile, in 2014, they contracted to purchase a second apartment in Manhattan, adjacent to the one purchased in 2010, and embarked on plans for an extensive renovation; they closed on that apartment in 2018. The parties separated in April 2019, with the husband renting another Manhattan apartment. The New Jersey home was sold in 2020. According to the wife, the Southampton home was used only for summer weekends, with some limited exceptions (the decision states that the husband's opposition to the motion to change venue failed to dispute the wife's averments).

In March 2020, at the beginning of the pandemic, the wife left the Manhattan apartment to reside at the Southampton home with the parties' adult pregnant and immunocompromised daughter. The husband commenced a matrimonial action in Suffolk County in August 2020, claiming both parties were residents of Suffolk County. The Supreme Court denied the wife's motion to change venue to New York County. On appeal, the Second Department found that defendant-wife "clearly established that the parties primarily resided in New York County." 204 A.D.3d at 111. The court determined that the wife did not have "the bona fide intent" to remain as a resident of Suffolk County "with at least some degree of permanency," as she only planned to be in Southampton temporarily. Id. at 114 (citation omitted). Accordingly, the Second Department ordered that the action be transferred to New York County.