Archives: Defenses

New York’s Domestic Relations Law §25, enacted in 1907, provides that a marriage is valid, even in the absence of a marriage license, if it was properly solemnized. However, New York County Supreme Court Justice Matthew F. Cooper, in his May 29, 2014 decision in Ponorovskaya v. Stecklow held that D.R.L. §25 could not be used to validate a marriage ceremony that failed to meet the  legal requirements of Mexico where the ceremony was performed. While so holding, Justice Cooper called for the statute to be amended or repealed, and joined the debate on whether Universal Life Church “ministers” could “properly solemnize” marriages.

Justice Cooper’s recitation of the facts merits quotation:

[Ms. Ponorovskaya], who is a clothing designer and business owner in Manhattan, and [Mr. Stecklow], a lawyer, began their relationship in 2004. While in Mexico for a 2009 New Year’s celebration, [Mr. Stecklow] proposed to [Ms. Ponorovskaya] overlooking the Mayan ruins in Tulum. The parties subsequently planned a Mexican destination wedding at the Dreams Tulum Resort & Spa. . . . On February 18th, the couple had a wedding ceremony on the resort’s beach. The ceremony was performed under a chuppah, a canopy under which a couple stands during a Jewish wedding. Certain Hebrew prayers were recited, vows were exchanged, and there was a glass-breaking ritual, as is customary at Jewish weddings.

Despite these traditions, the ceremony was not performed by a rabbi. Instead it was conducted by [Mr. Stecklow]’s cousin, Dr. Keith Arbeitman, a dentist who lives in New York. In 2003, in order to perform a marriage for friends, he became an ordained minister of the Universal Life Church (“ULC”), a distinction easily achieved by paying a fee on the ULC’s website. . . . [A]t oral argument on the motion, [Ms. Ponorovskaya]’s counsel produced a certificate that he printed off the internet certifying that Dr. Arbeitman is indeed a minister in good standing with the ULC. Likewise, during the ceremony Dr. Arbeitman told the audience, “I am an ordained minister — this will be a legal union.”

Continue Reading Invalidity of Licenseless Mexican Marriage Calls For Dismissal of New York Divorce Action

Filing income tax returns as “single” for the 11 years before a decedent’s death, did not, as a matter of law, estop a woman from claiming to be the decedent’s surviving spouse in contested estate proceedings. So held New York County Surrogate Nora S. Anderson in the May 22, 2014 decision in Estate of Tran (pdf).

Sang Kim Nguyen filed a petition to be appointed Administratrix of the Estate of Truong Dinh Tran. Ms. Nguyen claimed to be Mr. Truong’s widow under the common law of Vietnam. Separate cross-petitions for appointment were filed Mr. Truong’s alleged son, duaghter’s and grandson, who all sought summary dismissal of Ms. Nguyen’s petition.

Mr. Truong died at the age of 80 on May 6, 2012, leaving an estate that has been estimated to be worth more than $100 million.

According to Wikipedia, Truong was the principal owner of the Vishipco Line, the largest shipping company in South Vietnam in the 1970s. As a shipowner, he earned millions of dollars hauling cargo for the United States military. Truong left Vietnam on April 30, 1975, the day that Saigon fell to the communists. Truong boarded one of his eleven ships and traveled to the United States with two suitcases of gold.

Continue Reading Filing Tax Returns as “Single” May Not Estop Claim to Be Decedent’s Widow

Falanga.jpgIn his March 28, 2011 decision in A.C. v. D.R., Supreme Court Nassau County Justice Anthony J. Falanga gave full effect to New York’s new no-fault divorce law and temporary financial relief amendments.

In this first blog of two parts, the Court’s joinder of the wife’s no-fault action with the husband’s pre-no-fault action will be considered, together with the denial of the the wife’s motion for partial summary judgment on her no-fault grounds.  Although holding there is no defense to a no-fault claim, the Court declared that summary judgment and bifurcation of grounds issues are inapproriate.

Wednesday’s blog will consder the financial awards granted under the recent D.R.L. amendments.

The parties were married in 1992 and have 3 children, ages 13, 10 and 7. The husband, 52, is a physician; the wife, 46, a homemaker.

The husband commenced his divorce action on July 27, 2010 on the grounds of constructive abandonment and/or cruelty, although the wife was not served until October 22, 2010 (well within the 120 days of filing needed for timely service). However, four days before such timely service, the wife filed her own Summons with Notice, commencing an irretrievable-breakdown divorce action under D.R.L. §170(7) [effective October 13, 2010].

Earlier in this case, Justice Falanga resolved by January 18 Order, the husband’s motion to consolidate the two actions. The wife opposed on the grounds that if her action was subsumed within the earlier action, she would be prejudiced by her inability to avail herself of the new financial statutes. Represented by Robert Broderick, Esq., the wife argued instead for joinder for trial under C.P.L.R. §602(a), leaving the two actions intact, yet bringing the two actions together in one venue for pretrial and trial proceedings.

Justice Falanga noted that by joining the cases, as opposed to consolidating them, the husband would preserve his earlier commencement date for Equitable Distribution purposes, yet the wife would be entitled to relief under the later-enacted amendments to D.R.L. §§236B(5-a) and 237. In its January 18 Order, the Court granted a joint trial and joint discovery, after a bifurcated immediate grounds trial.

However, before that trial, the wife moved for partial summary judgment to establish her no-fault grounds as well as for interim financial relief.

In its March 28 Order, the Court re-analyzed the issues addressed in its January 18Order, denied partial summary judgment and canceled the grounds trial. In doing so, Justice Falanga gave true meaning to the no-fault nature of New York’s new divorce ground.

. . . [A] plaintiff’s self-serving declaration about his or her state of mind is all that is required for the dissolution of a marriage on grounds that it is irretrievably broken. . . . In adopting no-fault divorce, the Legislature implicitly recognized that the parties to a marriage should be able to make personal and unavoidably subjective decisions about the continuation of their marriage partnership.

. . . .

Therefore, in this court’s view, the Legislature did not intend nor is there a defense to DRL § 170(7).

Denying partial summary judgment, Justice Falanga also gave full import to the second sentence of D.R.L. §170(7), which provides that “no judgment of divorce shall be granted” until the custody and financial issues have been resolved. Such, the Court held, precludes the granting of summary judgment.

Continue Reading Court Recognizes There Is No Defense to No-Fault Divorce, But Withholds Summary Judgment

Muller - Robert.jpgIn actions commenced on or after October 12, 2010, Domestic Relations Law §170(7) provides for granting a divorce where one party states under oath that “the relationship between husband and wife has broken down irretrievably for a period of at least six months . . . .”

It what may be the first decision to apply this no-fault divorce law, Justice Robert J. Muller of the Essex County Supreme Court, in Strack v. Strack has effectively determined to eliminate its no-fault nature.

Justice Muller decided a motion to dismiss a no-fault complaint seeking a divorce after 47 years of marriage. First, the Court ruled that C.P.L.R. 3016(c) requires that allegations of misconduct or complained-of acts be specified in a no-fault complaint. However, the “irretrievable breakdown” ground requires no misconduct; there need be no acts complained of. There is nothing to “specify” except one party’s wholly subjective belief that the marriage has broken down irretrievably.

Second, Justice Muller ruled that as the Legislature did not include irretrievable breakdown within the exceptions to the the five-year Statute of Limitations of D.R.L. §210(a), no divorce will be granted if the marriage broke down more than five years before the action was commenced. The Strack decision does not reveal whether the wife actually pleaded that the marriage first broke down more than five years before commencement. Indeed the language quoted from the complaint pleads only that the marriage had been irretrievable for “at least six months.” Accordingly, the Statute of Limitations defense raised by Mr. Strack [i.e., you can’t have a divorce because our marriage broke down more than five years ago], and recognized by the Court, would appear a creature of speculation. Fortunately for Mrs. Strack, the “record” revealed to Justice Muller that there were “instances of marital discord” occurring within the past five years, and thus, the Statute of Limitations defense was not available under “continuing course of conduct” rules. It remains that Justice Muller’s decision would hold that where spouses separated on consent more than five years ago, they may not be divorced in New York on no-fault grounds.

The purpose of the no-fault statute was to avoid the type of “record” required by Justice Muller. There is to be no proof of misconduct; indeed, there need not be any.

Third, Justice Muller ruled that the Legislature did not exempt irretrievable breakdown from the right to a jury in divorce grounds trials under D.R.L. §173, and did not “explicitly” abolish the right to a trial, itself, for a no-fault divorce. Thus, the Court held that Mrs. Strack’s verified statement that her marriage had broken down irretrievably for a period of at least six months was refutable:

The determination of whether a breakdown of a marriage is irretrievable is a question to be determined by the finder of fact.

However, the Legislature did “explicitly” state that a grounds trial was not necessary. Of all the divorce grounds contained in D.R.L. §170, only “irretrievable breakdown” is to be based only on the sworn statement of one party. Even Justice Muller recognized that the ground is purely subjective:

This Court does hold, however, that whether a marriage is so broken that it is irretrievable need not necessarily be so viewed by both parties. Accordingly, the fact finder may conclude that a marriage is broken down irretrievably even though one of the parties continues to believe that the breakdown is not irretrievable and/or that there is still some possibility of reconciliation.

Thus, what is it that the fact-finder, whether it be judge or jury, is to determine?

  • Whether the party really believes the marriage is irretrievably broken?
  • Whether the marriage is objectively irretrievably broken, even if one party believes it and the other party does not believe it?
  • Whether the breakdown occurred at least six months before the action was commenced?

None of that is required. If one party provides the Court with a sworn statement of irretrievable breakdown for more than six months, the divorce should be granted.