Matrimonial Jurisdiction & Related Issues

Question 1

Proper Court?

Answer 1

Supreme Court has exclusive jurisdiction for a matrimonial action

Question 2

Is personal jurisdiction over the D necessary to obtain a divorce/separation/annulment?

Answer 2

Having a basis of PJ over the D is NOT NECESSARY for a matrimonial action. IN REM jurisdiction is sufficient.

The theory behind in rem is if the P domicile is in NY we say that the marital status is in NY. The marital status is “res” located in NY, and thus the NY courts have power of that res.

Question 3

To obtain a divorce, separation or annulment in NY, all that is necessary is that . . .

Answer 3

Plaintiff spouse is a domiciliary of NY

Question 4

If P seeks monetary support/division of property [INCIDENTALS] in addition to divorce/separation/annulment . . .

Answer 4

• P must have a basis of personal jurisdiction over D.
• an ex parte degree may not affect the “incidentals” to the marriage. The rights to support and maintenance are personal and cannot be cut off by a court that lacks in personam jurisdiction over the party seeking to enforce those rights.

Question 5

Matrimonial Long-Arm Statute (monetary support, division of property, any incidentals to the divorce):

Answer 5

When π-spouse is a resident of NY, long-arm jurisdiction can be acquired over Δ-spouse for monetary support if:

1- NY was the matrimonial domicile of P and D prior to separation, OR

2- D abandoned P in NY; OR

3- Ds monetary obligation accrued under an agreement executed in NY (separation agreement, prenum, etc.); OR

4- Ds monetary obligation accrued “under the laws of NY”

NOTE- Even if NY is able to get long-arm jurisdiction over D, the action will be subject to dismissal on the merits if P does not comply w/ NY’s Durational residency requirements. THe durational residency requirements are statutory conditions precedent to a matrimonial action, meaning that Ps complaint must allege satisfaction of any 1 of 3.

Question 6

Service in Matrimonial Action

Answer 6

ONLY PROPER METHOD IS PERSONAL DELIVERY TO D OR D’S APPOINTED ATTORNEY IN THE MATTER!! Alternatives may not be used w/o judicial permission via court order.

Question 7

Durational Residency Requirements: What are they?

Answer 7

Ps complaint must allege satisfaction of any 1 of 3 optional durational residency categories:

1- If BOTH PARTIES are NY RESIDENTS at the time the action is commenced AND the GROUNDS for the matrimonial action AROSE IN NY –> no period of prior NY residency is required

2- If EITHER PARTY has been a NY RESIDENT for a continuous period of at least 1 YEAR immediately prior to the action AND NY has any 1 of 3 possible PRIOR LINKS TO THE MARRIAGE: (i) marriage took place in NY; or (ii) NY was the matrimonial domicile at some point; or (iii) grounds for divorce action arose in NY

3- If EITHER PARTY has been a NY RESIDENT for a continuous period of at least 2 YEARS immediately prior to the action –> 2 year residency standing alone is sufficient

NOTE: If P fails to allege and prove satisfaction of at least one of these requirements the proper defense is FAILURE TO STATE A CAUSE OF ACTION not lack of jurisdiction (because P has in rem jurisdiction as long as a NY resident)

Question 8

NOTE: The durational residency requirements do not apply in an action solely to enforce monetary support obligations. They apply only in actions seeking to affect the marital status.

Answer 8

.

Question 9

Pleading requirements

Answer 9

• In a DIVORCE OR SEPARATION action, Ps complaint is required to plead the nature of circumstances of the defendant spouses alleged misconduct, and the time and place of each act complained of must be specified in the complaint or counterclaim.
• ALL TYPES OF ACTIONS– all pleadings must be VERIFIED, except the answer or reply to a compliant or counterclaim containing allegations of adultery in a divorce or separation action. However, an answer that contains a counterclaim must be verified as to that counterclaim.