NY Practice - PERSONAL JURISDICTION (Matrimonial Jurisdiction) VENUE

Question 1

Matrimonial Jurisdiction (ie jurisdiction to adjudicate matrimonial actions such as divorce, separation etc.)

Answer 1

Romeo and Juliet were married in Vegas in 2009. They moved to NY in July 2011. In Aug, 2011, Juliet abandoned Romeo in NY and moved to CA, to live there permanently.

Could Romeo obtain proper jurisdiction in NY for an action for divorce if he commenced action in May 2012 and served process on Juliet in CA?

proper court = sup ct of NY (only ct that would have “subject matter” jurisdiction)

having a basis of personal jurisdiction is NOT NECESSARY for a divorce (matrimonial action) (ie any action where seeking to affect matrimonial status - no personal jurisdiction required)

to obtain a divorce, separation or annulment, all that is necessary is that plaintiff spouse is a DOMICILIARY of NY

IN REM jurisdiction is SUFFICIENT - ct has “in rem” jurisdiction over the marriage on theory that if P is domiciled in NY, so is the “marital status” - marital status goes with the spouse, so if P in NY, his “status” is in NY - the status is a “thing” - legal fiction that treats it like an actual piece of property and ct has power over this “res.”

Note: however, if Romeo also seeks MONETARY SUPPORT, he must have a basis of personal jurisdiction over Juliet. - this is where MATRIMONIAL LONG-ARM STATUTE comes in

Question 2

Matrimonial Long-Arm Statute

Answer 2

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

DAMM
(1) NY was the matrimonial DOMICILE for P and D prior to their separation

(2) D ABANDONED P in NY, OR
(3) D’s MONETARY OBLIGATION accrued under an AGREEMENT EXECUTED in NY (e.g. separation agreement), OR
(4) D’s MONETARY OBLIGATION accrued “UNDER THE LAWS of NY.”

The only proper method of serving process in a matrimonial action is PERSONAL DELIVERY to D. Alternative methods, such as deliver-and-mail, may not be used without judicial permission by means of a court order

Question 3

Durational Residency Requirements

Answer 3

The residency requirements are part of the SUBSTANCE - i.e. the MERITS - of a matrimonial action (i.e. an action to affect the marital status (divorce, separation or annulment). They are not an element of the court’s jurisdiction. Their purpose is to ensure that NY has a sufficient interest in the marriage to adjudicate the marital status of the spouse

e.g. even if Romeo is able to obtain sufficient jurisdiction in NY for divorce, would the action be subject to dismissal on the merits due to his failure to comply with NY’s Durational REsidency REquirement? - YES

Question 4

DURATIONAL RESIDENCY REQUIREMENTS are statutory conditions precedent to a matrimonial action - P must allege satisfaction of 1 of 3 optional durational residency categories:

Answer 4

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

(2) One-Year Residency: 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 prior links to the marriage
(a) marriage took place in NY
(b) New York was the matrimonial domicile of the spouses at some point; or
(c) Grounds for divorce action arose in NY

(3) Two-Year Residency: if EITHER PARTY has been a NY resident for a continuous period of at least 2 years immediately prior to action, the 2 year residency standing alone is sufficient

NOTE: if P fails to allege and prove at least one of these, proper defense is “failure to state a COA”

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 MARITAL STATUS.

Question 5

Venue - Rules for Proper Venue

Answer 5

(1) In an action in which the judgment would affect title or possession to REAL PROPERTY proper venue is the county in NY in which the real property is located
(2) in ALL OTHER ACTIONS proper venue is any county in NY in which any one of the parties resides at the time the action is commenced (if none of the parties reside in NY, then let P choose ANY county in NY)

Question 6

Discretionary Grounds for Change of Venue

Answer 6

(1) the convenience of material witnesses - Either party, by motion, may request the court for a change in venue to the county that would be most convenient for witnesses. This will often (but not always) be the county where the cause of action arose
(2) If there is reason to believe that an impartial trial cannot be had in the county where the action is commenced, either party may make a motion to change venue

Question 7

IMPROPER VENUE

Answer 7

IMPROPER VENUE is not a jurisdictional defect and therefore is not a basis for dismissal

D’s remedy for improper venue is to serve a demand on P for change of venue to a proper county designated by D - The demand must be served BEFORE or WITH the answer

• If P consents to demand, then change of venue to designated county will be automatic
• if P objects to demand or fails to respond, then D has to make a motion for change of venue which must be granted as a matter of right if the P chose an improper venue and D designated a proper venue in his demand