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Does a Matrimonial Action Abate Upon the Death of a Party?
As a general rule, the death of one party during the pendency of a divorce action causes the action to abate because the martial relationship between the parties sought to be dissolved no longer exists. See Cornell v. Cornell, 7 NY2d 164, (N.Y. 1959), motion to amend remittitur granted, 7 NY2d 987 (N.Y. 1960). The rationale for this rule is that the cause of action for a divorce is personal to a party. See Peterson v. Goldberg, 180 AD2d 260 (2nd Dept. 1992).
Once an action abates by reason of death, in general, the court will be divested of jurisdiction to determine any claims for ancillary financial relief, such as those for equitable distribution, support and counsel fees. As a consequence, the abatement of a divorce action may have severe financial consequences for the surviving spouse, or may lead to a windfall, depending on the circumstances. Therefore, on occasion, where the financial stakes are high between the surviving spouse and the decedent's estate, the issue of whether an action has abated as a matter of law has been litigated.
For example, in Sperber v. Schwartz, 139 AD2d 640 (2nd Dept. 1988), the Appellate Division, Second Department, affirmed an order that dismissed a cause of action for equitable distribution brought in Surrogate's Court by the administrator of the estate of the decedent-wife, who had been found murdered in the marital residence during the pendency of a divorce action. The Appellate Division found that the Surrogate Court properly dismissed the cause of action for equitable distribution. The court held that because the decedent died prior to a resolution of her action for a divorce, the action abated, thus precluding the maintenance of her related statutory claim for equitable distribution.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?