Domestic Relations Flashcards
DR questions often cross pollinate w following areas:
1) Property
2) Ks
3) CPLR
4) Conflicts
Note: one issue frequiently raised is the distinction btw substative residency rules, the in rem aspects of the marriage, and the in personam obligations of the parties (during marriage/after divorce as it relates to either the spouse or the children).
DLR 230–Residency Requriements
Imposed min state residency before NY may dissolve the marriage. 3 wasy by STATUTE and 1 way by CASELAW that NY residency req may be met. Any one sufficient.
(1) either of the parties was a resident of NY for a per of one year immediately prior to the actions commencement, AND:
- marriage occurred in NY,
- the parties had a NY matrimonial domicile, OR
- the grounds for the action arose in NY
(2) no residency req need be met if the grounds for the action arose in NY AND both parties are NY residents at the time of the commencement of the action
(3) In any event 2 yrs residency of either party prior to commencement if the action will satisfy residency req
(4) The Ct of App has interpreted the statute to include the non-resident domiciliary of long duration to maintain an action, although they are not presently residing in NY
Residency Requirements–Substantive Elements of Actions
The residency req is considered an additional substantive element that the P must allege and prove, along with the other necessary elements in the following matrimonial actions
- Annulment
- Dec of the Nullity of a Void Marriage
- Divorce
- Separation
Failure to State a COA
Since residency is a sub element, a failure to plead it means that complaint has not stated a COA–> if P fails to allege or D objects the proper remedy is to bring a CPLE 3211(a)(7) motion to dismiss for failure to state a COA. this is a pre-ans motion.
NOTE: if Q of fact exists ct may order a pretrial hearing on the Q of residency
Summary Judgment
If the issue has been joined (the D has answered), the appropriate remedy is a CPLR 3212(c) motion for SJ
NOTE: if Q of fact exists ct may order a pretrial hearing on the Q of residency
Method of Objection to the Ct’s Finding of Residency
(1) In a contested action, if the ct finds the residency req met, the D’s remedy is appeal
(2) If it is an uncontested action, and judgment is entered by default, then the remedy is to move to vacate the judgment under CPLR 5015(h). If the motion is granted, (the judgement is vacated), then the entire judgment will fall.
Procedural Rules–Service
the filing rules re commencement of cause of action apply and req a summons and notice or a summons and verified complaint to be filed t/ clerk of ct to commence a matrimonial action. To obtain jurisdiction in a matrimonial action, DLR 232 permits only in hand delivery w/o a ct order; any other method req a ct order
Procedural Rules–In rem Juris
The subject matter of action is property in NY. Status of marriage is a property right. CPLR Sec. 314(5) authorizes the ct to exercise in rem juris under the CPLR, the only req is that the marital res is within the State. The marital res travels w/ each spouse. When the spouse enters NY, NY acquires in rem juris.
Procedural Rules–In Personam Juris
CPLR 301 and 302(b) auth the ct to exercise in personam juris.
(1) PRESENCE (CPLR 301)–if the D is a domiciliary of NY her is present in NY even when not physically here and is subject to gen juris. A non-domiciliary may become subject to 301 gen juris (presence) by either doing business or by being personally handed the summons within NY.
(2) LONG-ARM (CPLR 302(b))– a ct in any matrimonial action or family ctproceeding may exercise personal juric over the respondent or D notwithstanding the fact that he or she no longer is a resident or a domiciliary of the state, if the party seeking support (P) is a resident of or domiciled in this state at a time such demand is made provided:
- NY was the matrimonial domicile of the paties before separation, (RULE: NY must be the matrimonial domicile within the recent past to support in personam juris), OR
- The D abandoned the P in this state, OR
- The claim for support, alimony, maintnence, distributaive awards, or special relief in matrimonial action accrued: (1) under the laws of NY, OR (2) under an agreement executed in NY
- The family Ct may, in any proceeding under Art 10 of the Family Ct Act (child abuse), exercise personal juris over a non-resident respondent. RULE: if either the child or guardian or respondent is in NY, juris may be maintained even if abuse occurred out of state, and respondent may be served out of state.
Analytical Approach to Procedural Area
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