B. Matrimonial Actions

Question 1

What may be included in separation agreements?*

Answer 1

Making testamentary gift

Waiving right of election

Dividing separate + marital property

Setting amount + duration of maintenance

• Fair + reasonable maintenance when made
• NOT unconscionable maintenance at time of judgment

Custody/Care/Education/Support of parties’ children

Question 2

What is required for courts to set aside separation agreements?*

Answer 2

Unconscionability

Fraud/Duress/Coercion

Manifestly unfair agreement to Spouse due to other Spouse’s overreaching

NOT just one sided agreement

Question 3

What is required for Divorce?*

Answer 3

1) ‘No-fault’ ground of ‘irretrievable breakdown of marriage’
- Spouse must state under oath
- Relationship broke down ‘irretrievably’
- For at least 6 months before commencement of action
2) Resolution of issues by Parties/Court including;
- Equitable distribution
- Payment/Waiver of spousal support
- Payment of Attorney’s fees
- Custody + Visitation

Cruel/Inhuman treatment

Defendant’s Actual/Constructive abandonment of Plaintiff
- 1 or more years

Confinement of Defendant in prison
- 3 or more consecutive years after marriage

Adultery

Living pursuant to degree of judgment of separation
- 1 or more years

Living apart pursuant to agreement
- 1 or more years

Question 4

What is required for New York to exercise personal jurisdiction over parties in matrimonial actions?*

Answer 4

1) Plaintiff must be resident/domiciliary of New York

2) Either;
- Parties’ matrimonial domicile was NY before separation
- Defendant abandoned Plaintiff in NY
- Claim for economic relief accrued under NY law

3) Claim for economic relief (equitable distribution of marital property)

Question 5

What is required for New York to exercise subject matter jurisdiction over matrimonial actions?*

Answer 5

1) Both parties are residents of NY at time of action
2) Cause of action was in NY

1) One of the parties is resident of NY for 1 continuous year immediately before the action
2) Either;
- Parties were married in NY
- Parties lived as spouses in NY
- Cause of action was in NY

One of the parties is resident of NY for 2 continuous years immediately before the action

Question 6

What is required for service of process and pleadings in matrimonial actions?*

Answer 6

1) Verified pleadings
- UNLESS concerning adultery

2) Personal delivery of service of summons to Defendant
- UNLESS court order authorises substitute service
- Plaintiff is subject to summons once filed
- Defendant is subject to summons once served

3) Serve copy of ‘automatic orders’ (restraining orders) to Defendant
- NOT to dispose property
- NOT to incur debts to other spouse
- NOT to remove children from existing medical policies
- NOT to change life insurance beneficiaries