Family: Matrimonial Actions

Question 1

Jurisdiction of matrimonial action

Answer 1

the domicile of one spouse is the basis for a state court to exercise in rem divorce jurisdiction; and is sufficient to render a divorce, even if there is no personal jurisdiction over the non-domiciled spouse.

Question 2

Divisible divorce

Answer 2

a divorce court that has in rem jurisdiction over the marriage through the domicile of one spouse but has no personal jurisdiction over the absent spouse can only grant a divorce and cannot affect the absent spouse’s economic interests.

Question 3

Personal jurisdiction

Answer 3

PJ over the d is necessary for the court to enter or enforce any decrees in personam, including the entry of orders imposing support obligations or the institution of contempt proceedings. In addition to proper service of process, in order to enter in personam order for support, the D must have sufficient minimum contacts with state

Question 4

Authority and Jurisdiction

Answer 4

Supreme Court has subject matter jurisdiction over marital actions but may refer issues of support, custody, or visitation to Family court

Question 5

Durational Requirements

Answer 5

Residence by one party for one year immediately preceding the action is sufficient if either parties were married in NY, the couple live as husband wand wife in NY or the event occurred in NY. Otherwise, 2 years residency by one party.

Question 6

In rem

Answer 6

NY confers only in rem jurisdiction over the marital res. If the parties were domiciled in NY during their marriage, NY could forever assert in personam jurisdiction.

Question 7

Pleadings

Answer 7

Must be verified, except the answer to a complaint regarding adultery

Question 8

Default judgment

Answer 8

a final judgment cannot be entered by default for failure to appear or plead, without satisfactory proof on the merits.

Question 9

Dissolution based on absence

Answer 9

Enoch arden statute; NY authorizes dissolution where spouse has been gone for 5 years, and is believed to be dead. NY must also be the matrimonial domicile or the petitioner must be a NY resident for one year prior to commencement of proceedings.

Question 10

Ground for divorce and separation

Answer 10

(1) cruel and inhuman treatment
(2) cruelty (more than disharmony)
(3) abandonment (w/o justification + intent to not return; can be constructive)
(4) non support (neglect)
(5) adultery (must be voluntary)
(6) imprisonment (in a jail, more than 3 years)
(7) separation pursuant to decree (conversion after 1 year)
(8) no fault ( broken irretrievably for 6 months)

Question 11

Separation agreements must

Answer 11

be in writing, subscribed by the parties, and acknowledged in the manner required to entitle a deed to be recorded

Question 12

Provisions or the agreements are determined based on

Answer 12

fairness and reasonableness. The court may consider the financial positions of the parties.

Question 13

Modification

Answer 13

parties to a divorce action can provide that the agreement survives the judgment of divorce as an independent agreement, and will will be immune to change because of changed circumstances. But, child support and custody can always be changed by court (if substantial changes)

Question 14

SOL for divorce

Answer 14

there is a 5 year sol for cruelty and inhuman treatment or imprisonment. No SOL otherwise.

Question 15

Defenses to misconduct

Answer 15

D may allege the misconduct of P as defense. misconduct of P is no defense in a divorce action. No separation may be granted if: (1) connivance, (2) condonation; (3) consent; or (4) recrimination regarding adultery.

Question 16

effects of the final judgment

Answer 16

divorce decree is final once signed by the court. granting divorce also converts TBE to TIC, and each party loses rights of intestacy