New York Divorce Lawyers Explain Family and Matrimonial Law

Ex Parte Foreign Nation Divorces

Although not as common as they used to be, ex parte foreign divorces are still an issue. By ex parte, we mean the court only had jurisdiction over one party. Back before New York eased, to some degree, its divorce laws, people found it easier to go to Nevada or Mexico to get a divorce. Typically, one party would go and it get. Since the court only had jurisdiction over the person before it, the divorce was “ex parte” (one party.) The New York courts were very concerned about this type of divorces, since with only one party showing up, there was a good chance that an injustice could be wrought on the absent spouse.

An ex parte foreign divorce where there was no service or appearance by the other party is generally void. In Matter of Levi, NYLJ Volume 215 Number 52 (Nassau County Surrogate 1996), the court recognized the long settled principle that ex parte foreign divorces are void. Surrogate Radigan found that the decedent and his first wife were not domiciled in the Dominican Republic at the time of the divorce. “Under the circumstances, the Dominican divorce is void where it is at best an ex parte foreign divorce decree.”

The foreign court must obtain jurisdiction over the proponent of the divorce as well as the absent spouse. In cases where a divorce has been obtained without any personal contact with the jurisdiction by either party or by physical submission to the jurisdiction by one, with no personal service of process within the foreign jurisdiction upon, and no appearance or submission by, the other, decision has been against the validity of the foreign decree. Rosenstiel v. Rosenstiel, 16 N.Y.2d 64, 209 N.E.2d 709 (1965). In Maltese, the court found that the sole purpose of the wife’s trip to Mexico was to get the divorce.

it is clear that defendant’s appearance in Mexico was for the sole purpose of participating in the divorce proceeding, not for the purpose of residing there; she remained at all times a resident and domiciliary of New York State. As was said in the Rosenbaum case, supra, ‘Thus under comity as contrasted with full faith and credit our courts have power to deny even prima facie validity to the judgments of foreign countries for policy reasons, despite whatever allegations of jurisdiction may appear on the face of such foreign judgments. * * * The recognition of a foreign county judgment is far less certain, the judgment itself is far more assailable and vulnerable, than sister state judgments and is subject to a test of policy.’Accordingly, plaintiff is entitled to a judgment declaring the Mexican divorce decree null and void,

Similarly, Surrogate Preminger found that a Mexican divorce was void where the decedent was not a domiciliary of Mexico , Matter of Barton, NYLJ Volume 222, Number 13 (N.Y. Surrogate Court 1999).

When a divorce decree is void, either party may attack it. Further, the party who obtained the divorce is not prevented from attacking it’s validity. See Marum v. Marum, 8 A.D.2d 975, 190 N.Y.S.2d 812 (2^nd Dept 1959).

The Domestic Relations Law, section 236B(2) specifically grants the court jurisdiction to determine issues of property distribution upon a foreign divorce.

Matrimonial actions. Except as provided in subdivision five of this part, the provisions of this part shall be applicable to actions for an annulment or dissolution of a marriage, for a divorce, for a separation, for a declaration of the nullity of a void marriage, for a declaration of the validity or nullity of a foreign judgment of divorce, for a declaration of the validity or nullity of a marriage, and to proceedings to obtain maintenance or a distribution of marital property following a foreign judgment of divorce, commenced on and after the effective date of this part. Any application which seeks a modification of a judgment, order or decree made in an action commenced prior to the effective date of this part shall be heard and determined in accordance with the provisions of part A of this section.

Emphasis added.

While a divorce granted by a foreign sister is accorded full faith and credit, “[i]t is equally well settled, however, that a valid ex parte foreign divorce terminates only the marital status of the parties. Such a divorce is ‘divisible’ in that it has no effect upon the property held by the parties outside the jurisdiction of the state issuing the judgment.” Peterson v. Goldberg, 180 A.D.2d 260, 585 N.Y.S.2d 439 (2^nd Dept 1992). See Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360 (1957) (Ex parte judgments from a foreign sister state resolving issues of support and property are not granted full faith and credit). “An ex parte foreign divorced decree is entitled to recognition to the extent of determining the marital status, though not to the extent of affecting personal rights stemming from the marital relationship such as property and custodial issues…” Matter of Childers, NYLJ Volume 222 Number 112 (New York County Surrogate’s Court, 1999).

The court in Mattwell v. Mattwell, 194 A.D.2d 715, 600 N.Y.S.2d 90 (2^nd Dept 1993) explained that the purpose of DRL § 236(B)(2) & (5) was to address the divisible nature of foreign divorces. Accordingly, to provide for the distribution of property not affected by a foreign judgment of divorce, Domestic Relations Law § 236B(2) and (5) provide that a divorced spouse who possesses an interest in marital property within this state may commence an action for equitable distribution of property… The court has the power to convert an action into one for equitable distribution following the entry of a foreign divorce. Peterson v. Goldberg, 180 A.D.2d 260, 585 N.Y.S.2d 439 (2^nd Dept 1992).

Therefore, in the case of valid ex parte foreign divorces the court has the power and authority under DRL 236B(2) and (5) to proceed to address and determine the issues of equitable distribution, custody, support and visitation.

Sometimes its not that easy to determine if a divorce is ex part. For example, assume that the couple is from the Dominican Republic. Both are legally in the United States, and residents of New York. Both are also still citizens of the Dominican Republic. Assume that one of the spouses goes back to the DR and obtains a legal and valid divorce and the other spouse remained in New York. Was it ex part or not? There would be an argument either way. At present I’m not aware of any case addressing this issue.

Therefore, let prudence be your guide and avoid any appearance of an ex-parte divorce. If you are looking for a divorce and you live in New York, consult a New York divorce lawyer. If you are looking for a quick solution, you might find that you have severely prejudiced your rights.

Foreign State Divorces and Equitable Distribution

Foreign divorces can be very tricky, and ultimately very dangerous for the unwary. The problem is that under the New York divorce law, all issues between man and wife must be settled in the divorce. Any issue not resolved or raised is waived.

For example, let’s assume that the divorce papers are silent as to the marital home. Nothing is mentioned about how the house will be disposed of, and there is no provision for who will take the house. After the divorce, the parties fight and now one of the wants to force a sale and get his interest. Under New York law, when co-owners of a piece of property can’t get along, there is legal proceeding called a “partition”. If the ex-spouse tries to bring a partition action here, he will be told that he had his chance in the divorce, and now the New York courts are closed to him.

This is a fairly harsh rule, but it is New York divorce law. Any issue of equitable distribution not raised is waived forever. It can never be revisited.

This rule has a serious impact on foreign divorces. By foreign divorces, I mean a divorce from either a sister state or foreign country.

The issue of a New Jersey divorce was recently examined by Judicial Hearing Officer Stanley Gartenstein in the case of Ottomanelli v. Ottomanelli, decided on September 17, 2007.

The husband, who had established residence in New Jersey, commenced a no-fault divorce there. The court found jurisdiction over both the husband and the wife, although the wife was still a New York resident, living on Long Island.

The court’s divorce decree made no reference either to equitable distribution or maintenance.

The husband, having secured the divorce in his home state, returned to Long Island and commenced an action for equitable distribution. His action was dismissed.

JHO Gartenstein found that the New Jersey divorce was final and could not be amended.

He found that once the court has acquired jurisdiction over both parties, it had the power to decide all issues regarding the marriage and divorce and therefore he was without authority that amend that decision and made a property distribution.

In support of his decision, JHO Gartenstein cited the New York Court of Appeals case of O‘Connell v. Corcoran, 1 NY3rd 179, which involved a Vermont divorce. In that case, the wife appeared before the Vermont court and stated that no application would be made for an equitable distribution award as all the assets were in New York. The Vermont court issued a final judgment of divorce without contest and made no other awards. The wife then started an action in New York for equitable distribution. The Court of Appeals would not allow such an action. It found that the issues were before the Vermont court and the failure of the court to render an award, for whatever reason, ended the matter.

Following the holding of O’Connell, JHO Gartenstein dismissed the husband’s action for equitable distribution, as it should have been raised in New Jersey. The failure to raise the issue waived it.

This rule also applies to divorces from other countries. In DeGanay v. DeGanay 261 AD2d 175, a bilateral divorce in France was also viewed as final.

This rule only applies to “bilateral” divorces, that is divorces where the court has jurisdiction over both parties. When the court does not have jurisdiction over both parties, it is an ex parte divorce. In an ex parte divorce, the issue of equitable distribution remains alive. Ex parte divorces are a large and somewhat complicated area, and I’ll address it in another posting. Just remember for this posting, that if the court has jurisdiction over both parties, its a real good idea to address all issues of the divorce. If you “leave something for later” you’ll find that you’ve waived your rights.

Delay tactics and Equitable Distribution

One question I get asked quite frequently is: if my spouse plays games in the divorce, can the court punish he/her by giving me the house?

To put that question is legalese: can the court alter the equitable distribution award if it finds that the spouse has been non-compliant or engages in frivolous conduct?

Recently, the Appellate Division for the First Department has answered in the case of Warner v. Houghton.

Under the New York Domestic Relations law, when making an award of equitable distribution the court must take in account the statutory factors found in section 236 B. The courts must consider these statutory factors when announcing the award. The factors are:

c. Marital property shall be distributed equitably between the parties, considering the circumstances of the case and of the respective parties.
d. In determining an equitable disposition of property under paragraph c, the court shall consider:
(1) the income and property of each party at the time of marriage, and at the time of the commencement of the action;
(2) the duration of the marriage and the age and health of both parties;
(3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
(4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;
(5) any award of maintenance under subdivision six of this part;
(6) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
(7) the liquid or non-liquid character of all marital property;
(8) the probable future financial circumstances of each party;
(9) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;
(10) the tax consequences to each party;
(11) the wasteful dissipation of assets by either spouse;
(12) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
(13) any other factor which the court shall expressly find to be just and proper.

Turning to the Warner case, husband clearly was playing games. The husband fired his attorneys at least twice and failed and refused to attend a number of court conferences. Perhaps the straw that broke the camel’s back was his refusal to attend the inquest. Since the wife was unopposed at the inquest, the judge granted her everything she asked for.

The Appellate Division noted that “[w]hile the defendant’s conduct bordered on the contemptuous, the equitable distribution award must still be justified on the record, and should be supported by the specific finds [in the New York Domestic Relations Law].” The court cited an 1986 decision, Capasso v. Capasso, 119 AD2d 268, which held “that an insufficient explanation for the court’s distribution of property requires reversal of the judgment and remand for further consideration.”

The lesson of this case is that mere bad conduct may not be enough to allow the divorce court to alter the balance in an award of equitable distribution.