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.
