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Barton Resnicoff
ABA 2008 article
In today's mobile society, the Family Law practitioner has to be very careful about where to bring a proceeding and when to request a dismissal. The genesis of this goes back to Pennoyer v. Neff , 95 US 365, 24 LEd 565(1877), which held that a state cannot exercise jurisdiction over an individual who is neither a resident of that state nor present within its boundaries when served. Admittedly, the law in this area has evolved to permit a State to exercise long arm jurisdiction when an individual is not served in the jurisdiction based upon contacts and/or conduct within the State, see Hess v. Pawloski , 274 US 352, 47 SCt 632, 71 LEd 1091(1927) and International Shoe Co. v. Washington , 326 US 310, 66 SCt 154, 90 LEd 95(1945), but some conduct or contact with a State is still needed for that State to exercise such jurisdiction, see Hanson v. Denckla , 357 US 235, 78 SCt 1228, 2 LEd2d 1283(1958).
With this as a background, we now deal with these principles as they apply to family law matters. First of all, in divorces, the Courts have broken down divorce jurisdiction to two forms, the first being in rem jurisdiction, i.e., that the Court and State have jurisdiction of the marital res. When this happens, a Court of that State can dissolve the marriage. The other aspect of jurisdiction is in personum jurisdiction, or jurisdiction over the individuals to the marriage. To affect the property rights of an individual in marital litigation, the State issuing the decree must have personal jurisdiction over both, resulting in the development of the concept of divisible divorce.
One of the leading cases on the principle of divisible divorce is Estin v. Estin , 296 NY 308, 73 NE2d 113, aff'd 334 US 541, 68 SCt 1213(1948). In that case, the wife obtained a judgment of separation in New York and an award of alimony. The husband then moved to Nevada and obtained an ex parte divorce there. The decree contained a direction that the husband had no obligation to pay alimony to the wife. His relocation was held bona fide and New York held that the Nevada divorce was valid to the extent of dissolving the marriage, however, contrary to Nevada law, the New York courts refused to end the wife's rights to alimony, post judgment. The Supreme Court affirmed this, holding that
...full faith and credit...does not mean...that the State of domicile of one of one spouse may...enter a decree that changes every legal incidence of the marital relationship.
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The New York judgment is a property interest of respondent, created by New York...It imposed obligations and granted rights...The property interest...created was an intangible...Jurisdiction over an intangible can indeed only arise from control or power over the persons whose relationships are the source of the rights and obligations [citations omitted].
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...we are aware of no power which the State of domicile of the debtor has to determine the personal rights of the creditor in the intangible unless the creditor...appears in the proceeding.
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The Nevada decree that is said to wipe out respondent's claim for alimony is nothing less than an attempt by Nevada to restrain respondent from asserting her claim under the judgment. That is an attempt to exercise an in personum jurisdiction over a person not before the court. That may not be done. Since Nevada had no power to adjudicate respondent's rights in the New York judgment, New York need not give full faith and credit to that phase of Nevada's judgment.
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The result in this situation is to make the divorce divisible-to give effect to the Nevada decree insofar as it affects marital status and to make it ineffective on the issue of alimony. 334 US 546, 548-9, 68 SCt 1217-8
The next leading case on divisible divorce is Vanderbilt v. Vanderbilt , 1 NY 2d 342, 153 NYS2d 1, 135 NE2d 553(1956) aff'd 354 US 416, 77 SCt 1360(1957). In Vanderbilt , the wife had not obtained an alimony award prior to the husband obtaining an ex parte divorce which, under Nevada law, ended the possibility of such an award. After the divorce, the wife started an action for separation and alimony. A support order was made and entered. In affirming the support order, the Court of Appeals noted that
... Lynn v. Lynn opinion, 302 NY 193, 200-201, 97 NE2d 748, 751, supra, thus:"a divorce may be completely effective to dissolve the marriage and yet completely ineffective to alter certain legal and economic incidents of that marriage"...
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...that part of a foreign...divorce decree which dealt with status had to be given effect in New York as terminating the marriage but was entitled to no effect at all so far as support or other property rights were concerned...
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...under the "divisible divorce" doctrine, defendant's Nevada divorce had no effect...as to plaintiff's property rights. Its sole effect was to end the marriage and it has been given that effect in New York. [Emphasis added] 1 NY2d 350-2, 153 NYS2d 7, 9
Then, the Supreme Court specifically found that the fact that the New York judgment issued subsequent to the ex parte Nevada decree was not material, noting
Since the wife was not subject to its jurisdiction, the Nevada divorce court had no power to extinguish any right which she had under the law of New York... 354 US 418, 77 SCt 1362
In Anello v. Anello , 22 AD2d 694, 253 NYS2d 759(2d Dept., 1964), the parties purchased a house in New York as tenants by the entirety[1] during their marriage. The husband then obtained an ex parte Nevada divorce and commenced a partition action to force the sale of the property. In affirming a dismissal under CPLR 3211(a)(7)[2], the Court held that
...the foreign divorce decree, although valid to dissolve the marital status, nevertheless, the decree...was ineffective to transform the tenancy by the entirety into a tenancy in common.
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Since the ownership by the plaintiff husband and the defendant wife as tenants by the entirety remained intact despite the severance of their marital status by the foreign divorce decree, the husband is barred from maintaining this action... 253 NYS2d 760, 761
The clear import is that the principle of divisible divorce means that a decree issued with only in rem jurisdiction should not affect the property rights of the parties to this marriage in another jurisdiction.
This can be of great assistance when it may be in your client's interest to litigate the property rights in a difference jurisdiction.
Issues of custody and support are also governed by uniform acts, such as the Uniform Interstate Family Support Act(UIFSA) and the Uniform Child Custody Jurisdiction and Enforcement Act(UCCJEA). The jurisdictional aspects of each should be understood as it may greatly affect the rights of your client and where these issues are litigated. There are rules concerning initial jurisdiction consistent the above rules involving in personum jurisdiction, see FCA §580-201[3], which governs Jurisdiction over non-residents in support cases
Bases for jurisdiction over nonresident
In a proceeding to establish, enforce, or modify a support order or to determine parentage, the tribunal of this state may exercise personal jurisdiction over a nonresident individual or the individual's guardian or conservator if:
(1) the individual is personally served with a summons and petition within this state;
(2) the individual submits to the jurisdiction of this state by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;
(3) the individual resided with the child in this state;
(4) the individual resided in this state and provided prenatal expenses or support for the child;
(5) the child resides in this state as a result of the acts or directives of the individual;
(6) the individual engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse;
(7) the individual asserted parentage in the putative father registry maintained in this state by the department of social services; or
(8) there is any other basis consistent with the constitutions of this state and the United States for the exercise of personal jurisdiction.
Once a State has obtained jurisdiction under UIFSA, that State's Courts have exclusive continuing jurisdiction to modify as long as either party or the children continues to reside in that State, see FCA §580-205; no other State can modify the Order; another State can modify once everyone has left the issuing State; and the individual responding resides in that State; i.e., the requesting party must litigate in the other State, see FCA §580-611.
As an aside, once a State has issued a spousal support Order, only that State can modify that Order, even if none of the parties continue to reside in that State; or even if they both reside in the same State, but not the issuing State, see FCA §580-205(f).
Jurisdiction of the initial custody case is primarily based upon the concept of "home state," i.e., where the child has resided for a continuous six(6)month period, at the time of commencement, with certain exceptions, see DRL §76[4]. However, similar to UIFSA, the initial issuing state has continuing exclusive jurisdiction to modify unless no one continues to reside there or the Courts of that State determine that another State would be a more appropriate jurisdiction to deal with the issues, see DRL §§76-a, 76-b; with the exception of temporary emergency jurisdiction, see DRL §76-c. Again, these jurisdiction rules should be viewed in a context as to the best place for your client to litigate.
At this point, another issue is what consideration another State should give to the decisions of a different State between the same parties. I know that this often comes up when a dissolution of marriage is issued in New York on fault[5], then property rights are sought to be litigated elsewhere. Because of this, New York Courts have found that fault, except egregious fault or economic fault, is not a factor on financial issues, contrary to many other State. Under those circumstances, consistent with standard rules of Conflicts of Law, as was held in Watts v. Swiss Bank Corp. , 27 NY2d 270, 317 NYS2d 315, 268 NE2d 739(1970)
...the law of the rendering jurisdiction, insofar as it limits the effect of its own judgments, would also limit elsewhere the preclusive effect of the judgment and the definition of the parties bound. 27 NY2d 275, 317 NYS2d 318, 268 NE2d 742
This is merely a tip of the iceberg of interstate or international issues; in fact, the General Practice, Solo & Small Firm Division printed in its March, 2008 Law Trends & News Practice Area Newsletter, Vol. 4, No. 2, an article on the Globalization of Family Law by David Starks.
[1] As Husband and Wife with the right of survivorship.
[2] Failure to state a cause of action.
[3] These sections are cited to New York's version of UIFSA.
[4] These sections are cited to New York's version of the UCCJEA.
[5] New York has no true no fault provision; i.e., all divorces are issued based upon either adultery, cruel and inhuman treatment or abandonment, see DRL §170(1), (2) and (3). While there are provisions for a "conversion divorce, DRL §170(5) or (6), it requires obtaining either a decree of separation or having a separation agreement and waiting a year.
