Matrimonial Actions Flashcards
Jurisdiction - One Spouse leaves and establishes residence in another state and obtains divorce. What result
spouse’s state must give full faith and credit to the divorce
if reasonable notice to the nondomiciled spouse was provided
Jurisdiction - Domicile and Residency Requirements
Constitution - domicile of one party as basis for divorce jurisdiction.
In rem jurisdiction is established over the marital status by virtue of the domicile of one of the parties within the state.
Domicile = physical presence plus the intent remain
Jurisdiction - stay-at-home spouse served notice but allows default to be entered. What result?
spouse can attack the finding of domicile of procuring spouse
was no contested hearing on issue of domicile in rendering state.
Jurisdiction - Procuring spouse returns to original domicile soon after obtaining divorce in a foreign state.
SAH spouse can attack the out-of-state decree successfully in state of original domicile.
Jurisdiction - Can a Spouse who obtained an out of state divorce later attack its validity?
No. The spouse is estopped from attacking its validity.
SAH spouse who takes advantage of the out-of state divorce by remarrying is estopped from attacking it.
Jurisdiction: SAH participates in an out-of-state divorce through ENTRY OF APPEARANCE, later attacks its validity.
What result?
res judicata bars spouse from attacking validity of the divorce.
Explain Divisible Divorce
Court In Rem jurisdiction over the marriage but no PJ over absent spouse can grant divorce but cant affect the absent spouses economic interests.
State can continue a support order after there has been an ex-parte out of state divorce that purportedly terminates it.
Personal Jurisdiction and enforcement of decrees.
Court needs personal jurisdiction over defendant for court to enter or enforce any decrees in personam,
includes orders imposing support or institution of contempt proceedings to enforce them.
Long Arm Statutes and Personal Jurisdiction
long arm statute will allow entry of order in personam against
a non-resident defendant spouse.
Due Process and entry of an in personam order
In addition to proper service of process, defendant must have sufficient minimum contacts with the state so entry is consistent with due process principles.
Jurisdiction and Venue of NY courts - which court has SMJ over marital actions?
Supreme Court.
Can refer issues of support, custody, or visitation to Family Court.
Durational Requirements for Matrimonial Actions
Residence of one party for ONE YEAR preceding action if parties were (1) married in NY (2) lived as husband and wife in NY (3) the COA occurred in NY.
Otherwise 2 years continuous residence by one party required.
no durational requirements if parties are residents of NY AND the cause occurred there,
Continuous physical presence satisfies the durational requirement.
In Rem Jurisdiction and Matrimonial Actions
NY law confers only in rem jurisdiction over the marital res itself.
court may dissolve the marriage but not award alimony, frame support orders, etc., without personal jurisdiction over defendant spouse.
NY long arm statute may confer jurisdiction.
A proviso conferring jurisdiction when NY is the ‘matrimonial domicile of the parties before separation’ suggests that if the parties were domiciled in NY at any time during their marriage, NY could forever assert in personam jurisdiction.
Matrimonial Action - Commencement Procedure
Filing of a summons and verified complaint commences the action.
All pleadings must be VERIFIED EXCEPT the answer or reply to a complaint or counterclaim charging ADULTERY.
Nature and circumstances of D’s misconduct and its TIME AND PLACE must be SPECIFIED WITH PARTICULARITY in the complaint.
Default Judgement in Matrimonial Actions
The nature of the matrimonial action must appear on the face of the summons if the summons is served without a complaint before a default judgement may be entered. [NYDomRelLaw 232(a)]
A final judgement cannot be entered by default for FTA or plead, or by consent, or upon a trial of an issue, without satisfactory proof of the grounds. [NYDRL 211
Dissolution on the grounds of Absence - Enoch Arden Statute
authorizes dissolution of marriage where
- Spouse absent for 5 years, believed dead after a diligent search where:
a) NY was matrimonial domicile at time of the disappearance; or
b) petitioner is NY resident and has been for one year preceding commencement of the proceeding.
Statutory Grounds for Divorce - List 8
- Cruel and Inhuman treatment
- Cruelty
- Abandonment
- Nonsupport* (grounds for separation only)
- Adultery
- Imprisonment
- Separation Pursuant to a Decree or Agreement
- No-Fault
Cruel and Inhuman Treatment - elements
Conduct endangers physical or mental well being
renders unsafe or improper to cohabit.
“Cruelty” involves wantonness or intent to inflict deliberate suffering
C&I not shown by evidence of disharmony and quarreling.
Cruelty - elements
wantonness,
intent to inflict deliberate suffering
Not mere disharmony and quarreling.
Grounds of Abandonment - elements
Voluntary separation
without justification
intention of not returning
Lasting for one year or more*
*differs for a ground for separation which has no durational requrement.
Grounds of Nonsupport
Separation only
spouse is liable for support of the other
Neglect or refusal to provide for the plaintiff spouse.
Available even if the parties are living apart by mutual agreement.
Grounds of Adultery
act performed voluntarily.
Rape, insanity, or mistake of fact are defenses.
Grounds of Imprisonment
Prison confinement for 3+ years after the marriage.
Confinement in a mental hospital does not constitute imprisonment.
Grounds of Separation Pursuant to Decree or Agreement
after parties have been legally separated for one year.
Termed a “conversion” divorce
Grounds of No-Fault
marital relationship broken down irretrievably for 6 months
one party attest under oath.
Judgement granted if ancillary issues are resolved.
Creation of a valid and enforceable separation agreement requires
It is in writing
Subscribed by the parties
Acknowledged in a manner required to entitle a deed to be recorded
What may separation agreements include?
Contract to make testamentary provisions, waivers of any right to elect against the provisions of a will.
Provisions for the ownership, division, or distribution of property
fair and reasonable provisions for the amount and duration of maintenance or other terms and conditions of the marital relationship
Provisions for the custody, care, education, and maintenance of children.
Considerations of the court in determining whether the provisions of a separation agreement are “fair and reasonable”
- relative financial positions of the parties.
provisions requiring dissolution are prohibited
may not providing the grounds for divorce
relieving either spouse of liability to support the other so they become incapable of self support is not allowed.
- valid separation agreement bar action for separation not for divorce.
Cohabitation with intent to reconcile destroys the agreement.
Attorney representing both parties in a separation agreement
agreement subject to strict scrutiny but
not automatic invalidation.
Valid separation agreement and subsequent action for alimony
Will bar an action for separation and alimony but
does not bar a subsequent action for divorce.
Destruction and Challenging of Separation agreements
Cohabitation with the intent to reconcile will destroy the agreement.
party accepting benefits of an agreement may not challenge its validity.
Accepting benefits of modified agreement ratifies original agreement.
Enforcement of a Separation Agreement
Breach allows the other party to either rely on the agreement or
treat breach as a repudiation and assert rights in a marital action
Merger of the Separation Agreement into a Divorce Judgement
Separation agreements can merge into divorce decree
terms will not change
spouse can disaffirm for fraud, overreaching, or the like.
Incorporation and Modification of Separation Agreements in Divorce judgements
Separation Agreement survives judgement of divorce as independent agreement.
Is ordinarily immune to modification for changed circumstances.
court has power to modify for changed circumstances in child support and custody,
Court can order increase alimony where payee is unable to support himself on amount allowed or in danger of becoming a public charge.
Statute of Limitations for Divorce and Separations Grounds
5 years for Divorce - Cruel and Inhuman Treatment or Confinement in Prison
5 years for Separation - Cruel and Inhuman treatment or NonSupport.
No SoL in connection for any other divorce or separation ground.
Time Limit for SoL in connection to Divorce or Separation
Measured from time CoA arose to time of the action commenced
Defense of Misconduct in Separation actions
is a complete defense if established
even if D admits to misconduct
Defense of Misconduct in Divorce Actions
Misconduct is no defense in divorce action
except Adultery as a ground.
D is limited to denying the offense charged.
Procurement or Connivance as a defense to adultery.
no divorce on grounds of adultery if spouse consented.
Even if D admits conduct.
Consent is not inferred from an agreement to live separately.
Collusion
no divorce will be granted if
parties have agreed not to defend,
manufactured a ground, or
suppressed relevant defenses
Condonation as a defense to adultery
voluntary cohabitation WITH KNOWLEDGE,
adultery not a ground for separation or divorce.
AFFIRMATIVE DEFENSE and MUST BE PLEADED
Repetition revives the adultery
Recrimination as a defense to Adultery
barred divorce for adultery if plaintiff is guilty of adultery.
Separation Decrees - In general
Modifies marriage relations, duties, and obligations
Revocable on joint application of parties.
Encompasses custody, support, and division of property orders.
Converts TiE’s into TiC’s
Compliance by payor spouse means he is not liable to 3rd parties for the debts of the dependent spouse, even though the goods are necessaries for the dependent spouse or children.
Rights during Pendency of Divorce
Court can make orders for custody, support of children, and possession of the marital home, regardless of title.
Rights during Pendency of Divorce - alimony and counsel fees
Temporary alimony or counsel fees may be directed even if parties continue to live together
no showing a reasonable probability of success required
must show need
Pendency of Divorce - Death of a party
the divorce action abates
surviving spouse is NOT entitled to equitable distribution
Pendency of Divorce - Missing Spouse
Defendant cannot be found and personally served with process,
court will order sequestration of property and
can authorize spouse to sell or mortgage the real estate as needed,
occupy the house rent free, and
use the defendants chattels.
Legal Effects of a final judgement of divorce
Decree is final when signed by the court.
Converts TiE to TiC
Parties lose the right to waive the will of the other or take by intestate inheritance.
EXCEPTION - where deceased spouse has procured an INVALID OUT OF STATE DIVORCE, annulment, or declaration of nullity. However, if the surviving spouse procured such an out of state divorce, his election and intestate rights would be cut off.
Participation in an out of state divorce by both spouses.
Stay at home spouse ability to challenge the validity of the divorce
spouse is barred by res judicata from attacking validity of divorce
question of domicile could have been litigated in rendering state.
where D merely entered an appearance in the rendering state and admitted jurisdiction is barred from attacking validity as well.
Consent jurisdiction will bind parties and protect decree from collateral attack in the rendering state.
Service of Process in a Matrimonial Action
any of the means allowed for personal service generally or by publication.
Jury Trial in Matrimonial Actions
There is a right to a trial by jury of all issues of fact, including grounds in an action for annulment (except on the issue of physical incapacity) and declarations of divorce and nullity.
There is no such right in a separation action.
Constructive Abandonment
There may be constructive abandonment without physical departure of the spouse. Refusal of conjugal rights may constitute constructive abandonment. [Cymbler v Cymbler]
Ancillary Issues to be Resolved By the parties in a No-Fault divorce
- Economic issues of equitable distribution of marital property
- Payment or waiver of spousal support.
- Payment of child support
- payment of legal and expert fees; and
- custody and visitation of infant children of the marriage.
Defenses to Adultery - List
- Procurement or Connivance
- Condonation
- Recrimination
Enoch Arden Statute
grounds for dissolution on absence
spouse absent for 5 years
presumed dead
diligent search
Petitioner is a NY resident and has been for 1 year preceding proceeding
or
NY was matrimonial domicile at time of disappearance
Provisions in separation agreements for amount-duration of maintenance must be
fair and reasonable and not unconscionable
