Foreign Divorce

A “matrimonial action” is defined to include an “action for 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 the nullity of a foreign Judgment of Divorce, for the 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.” DRL ' 236B(2).

At first glance it would seem that once the parties are successfully divorced in the foreign jurisdiction in which only the party seeking the divorce appeared, the commencement of that action should be the cutoff date in determining what is or is not marital property. However, as set forth in the Somma v. Somma , 19 A.D. 3rd 477, the procurement of an ex parte divorce dissolves only the marital status of the parties, and has no effect upon the property held by the parties outside of the jurisdiction of the state issuing it. See also Young v. Knight, 236 A.D. 2d 534 and O'Connell v. O'Connell, 290 A.D. 2d 774 (3d Dept.). The Somma court further stated that the selection of n appropriate cutoff date depends on the meaning ascribed to the statutory term “matrimonial action,” and it turned to Anglin v. Anglin , 80 N.Y. 2d 553, for guidance.

In Anglin, the court said hat, in order to determine whether a particular type of matrimonial action will act as a cutoff date, courts must recognize a distinction between a separation action, in which the court does not have the authority to distribute assets, and a separation agreement, where the parties have the power to provide for the distribution of assets. The court in Anglin deemed the availability of equitable distribution to be the critical factor in determining whether the commencement of a particular type of matrimonial action will act as the cutoff date as to the clarification of assets.

In Sullivan v. Sullivan, 155 Misc. 2d 440, aff'd 201 A.D. 2d 417 (1st Dept. 1994), the parties were married in 1958 and separated in 1982. In 1983, the husband commenced a New York divorce action, which was thereafter dismissed. In August 1987, the husband commenced a divorce action in Illinois and was granted a divorce in 1989. The Illinois court did not have jurisdiction to make a determination regarding marital property. Thereafter, the husband brought an action in New York for equitable distribution, and asserted that property acquired by him after commencement of the Illinois action was his separate property.

The wife opposed the husband's position, asserting that the cutoff date should be the later date of commencement of the equitable distribution action because he should not be able to do by a foreign action what he could not to do in a New York action. The court, citing Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S. Ct. 1360, held that “[j]ust as no right to equitable distribution is available in an action for separation, no such right is available in an ex parte foreign divorce action, since when a state lacks personal jurisdiction over a spouse, the divorce may not properly determine the spouse's economic or property rights.” The Sullivan court noted that it would be incongruous to permit an ex parte foreign action to terminate the non appearing spouse's rights to subsequently acquired properties. See also Nicit v. Nicit, 217 A.D. 2d 1006 (4th Dept, 1995).

In his commentary to this issue, set forth in N.Y. Prac., New York Law of Domestic Relations ' 14;12, Alan D. Scheinkman noted that there are two situations in which the holding in Sullivan would seem not to be applicable. One is where equitable distribution was available in the foreign proceeding (where, for example, both parties approved and submitted themselves to the jurisdiction of the foreign court for all purposes); and the other is where the party who brought the foreign action had valid grounds for divorce in New York, or the defendant in the foreign action had grounds for a New York divorce and had irrevocably committed to obtain one. But whether the cutoff date is determined by the earlier ex parte foreign action or the later action for equitable distribution, other factors may be considered in “how” to distribute the assets.

In Sullivan, the court stated, “The factors relied upon by Mr. Sullivan ' the parties' ten year separation, the termination of any 'economic partnership' upon the dissolution of the marriage ' are appropriately taken into consideration by the Court in distributing the marital property of the titled spouse.” Similarly, in O'Connell v. O'Connell, the court, while holding the appropriate cutoff date to be the commencement of the action for equitable distribution, also stated, “That is not to say, however, that the commencement of the prior action and the parties' conduct with respect to their property in the time between the actions should not be considered by the court in the exercise of its broad discretion to fashion an appropriate distribution of what is characterized as marital property.”

Conclusion

It appears that, when a party obtains a foreign divorce but seeks distribution of the martial property in a New York court afterward, the cutoff date for determining what is classified as marital property is generally the later action. The issue of whether there has been an economic partnership between the parties should be considered in how the marital property is distributed.

Jerome A. Wisselman, a member of this newsletter's Board of Editors, is a partner in the Great Neck, NY, firm of Wisselman, Harounian & Associates, P.C.