On December 24, 2009, Judge Matthew F. Cooper, sitting in th Supreme Court of New York County, rendered a decision on the case of Davis v. Davis, 89 N.Y.S.2d 611, 2009 WL 3863026, 2009 NY Slip Op 08579. Mr. Davis brought an action for a non-contested divorce, claiming his wife constructively abandoned him. This means she had no sex with him for a period of one year. This is the most widely used ground for divorce in the State of New York. The reason this ground is widely used is that New York does not have a true no-fault ground for divorce. It is only state in the United States that still maintains an archaic fault based divorce system.

Constructive Abandonment – No Sex for a Year:

Mr. Davis alleged in his complaint that he had not had sex with his wife for over one year. He submitted an affidavit swearing to the validity of this information.

Unbeknownst to Mr. Davis, Mrs. Davis was pregnant with Mr. Davis’ child. Mr. Davis was successful in obtaining the divorce.

Mrs. Davis had a baby boy named Ethan. Mr. Davis, thereafter, moved for genetic marker testing to prove that he was the father of the child. He wanted a declaration of paternity and the divorce judgment to be modified to indicate he was Ethan’s father.

Mrs. Davis opposed the application by Mr. Davis. In her opposing papers, she indicates that in Mr. Davis’ divorce papers, it contained a signed sworn to affidavit that he hadn’t had sex with her for a period of one year. It, therefore, would be impossible for him to be the father of Ethan. Mrs. Davis also alleged that if Mr. Davis is recanting his sworn statement, he should be prosecuted under the NY Penal Law, §210.10 for perjury.

The Appellate Division, Second Department, in its decision on the appeal, indicated that this was the wrong venue to allege criminal conduct. The court further stated that “the sad truth is that New York’s insistence on fault based divorce ends up promoting a disregard for the truth by fostering and encouraging the embellishment of a spouse’s wrong doing as to grounds …”

The court found that there should a presumption of legitimacy of the child being a child of the marriage because it was in the child’s best interests. The court further stated that it is presumed that Mr. Davis was Ethan’s father by virtue of the fact that he had been married to Ethan’s mother when the child was born. The court stated it was in the child’s best interests that his father’s name appear on his birth certificate and that the father should be able to establish a father-son relationship.

If New York had a true no-fault divorce law with a ground such as “irreconcilable differences” or “incompatibility,” individuals would not be motivated to submit false affidavits in divorce lawsuits for the sole purpose of ending their marriage. Although, New York State in many respects is a very forward thinking state, this is not true when it comes to New York’s divorce laws. The court stated that the “view of marriage is more reflective of the time of the Empire of Queen Victoria than it is of the second decade of the 21st Century”. The failure of New York’s legal system to adopt a divorce law that reflects 21st Century sensibilities willl continue to impugn the integrity of the legal system in the State of New York.

The Law Office of Elliot S. Schlissel has been providing legal services to individuals with marital problems for more than 30 years. Should you have an issue involving your marriage, feel free to call us at 1-800-344-6431 or email us anytime.

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Father’s Rights Attorneys

November 30, 2009

There is a growing feeling among fathers who deal with the Family Courts and the Supreme Courts in the State of New York on matrimonial and family law matters that they are being treated unfairly. The law in the State of New York says that fathers and mothers have equal rights to custody. There is no presumption that mothers should receive custody and fathers should pay child support. However, many fathers who have dealt with the legal system come away with a sour taste in their mouth due to bias in favor of the mother.

Father’s rights attorneys are matrimonial and family law attorneys with extensive experience in protecting the rights of fathers involved with custody, support and visitation matters. If you feel you are being treated unfairly, contact the father’s rights attorneys at the Law Office of Elliot S. Schlissel. We can help you!

-Elliot S. Schlissel, Esq.

800-344-6431

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Nassau County is one of the richest counties in the United States. The Family Court in Nassau County is located at 1200 Old Country Road, Westbury, New York 11590. The judges, court officers, administrators, clerks, attorneys and litigants are all presented with difficult situations.

The courthouse is totally inadequate to serve as a location for the Family Court of Nassau County. The building is old, dilapidated and too small. The air conditioning does not cool the hallways.

There is no adequate waiting room. Lawyers and their clients are often forced to wait in crowded hallways. God knows what would happen in this overcrowded building should there be a fire. During the past fifteen (15) years, Suffolk County, Kings County and Queens County have built beautiful new court facilities. Unfortunately, Nassau County has not had the foresight to provide its residents with a decent, adequate, modern facility. This is an embarrassment! The building structure is not worthy of the litigants, judges, clerks, court officers and the community it serves.

-Elliot S. Schlissel, Esq.

800-344-6431

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britney spears jason alexander marriage annulment annulledIn an effort to bring in blog traffic discuss the laws relating to having a marriage annulled in New York, it is worthwhile to bring up Britney Spears’ petition to annul her marriage signed just hours after her Las Vegas marriage. The couple tied the knot in a Las Vegas chapel Saturday morning, January 3, 2004 at 5 AM. She signed a petition to have the marriage annulled that same day, it was filed Monday morning, and a judge granted the annulment on Tuesday, January 6th. The marriage lasted about 55 hours. Las Vegas Review Journal.

The manager of Nevada Divorce and Paralegal Services said that an annulment makes it “like [the marriage] never happened in the first place.” This is not the case in New York. Here, under NY Domestic Relations Law § 7, the marriage is only void “from the time its nullity is declared by  a  court  of  competent  jurisdiction,” meaning that the marriage was legally valid from the time it began until the court declares it null and void.

A judge may annul a marriage, even where the parties have children (see §§ 7 & 24), when either one of the parties meets any one of the following criteria:

  1. If a party is under age 18, then the judge may annul the marriage at his/her discretion, taking into account all of the facts and circumstances.
  2. If either party is mentally incapable of consenting to a marriage because he or she is unable to understand the consequences and significance of a marriage.
  3. If either party is physically and permanently incapable of entering into a marriage (i.e. having sexual relations). Sterility does not count.
  4. The marriage occurred through force, duress, or fraud. Fraud may be shown where one party conceals or misrepresents some fact so material to the essence of the marriage that the other party would not have entered the marriage had it known about that fact.
  5. One party has been mentally ill for five years or more before the marriage.

Britney Spears declared that the basis for her application for annulment was NRS 125.330, which allows annulment “for want of understanding.” This statute is worded very similar to New York’s, which allows annulment when “either of the parties to a marriage for want of understanding shall be incapable of assenting thereto.” New York’s law is almost the same allowing annulment when a party is “incapable of consenting to a marriage for want of understanding.” But Britney Spears said she  was “incapable” of agreeing to the marriage because she and her new husband “did not know each others likes and dislikes, each others desires to have or not have children, and each others desires as to State of residency.”

I don’t think this would work in New York. Incapacity does not mean that one simply doesn’t yet know certain information about the person she is marrying. It means she is actually incapable, due to “mental illness or retardation,”  of knowing what marriage really is, its significance and its consequences. Levine v. Dumbra, 604 N.Y.S.2d 207, 208 (2nd Dept. 1993). While some might claim, tongue in cheek,  that Ms. Spears does suffer from some mental defect, it is doubtful that a court would find that she suffers from any actual mental illness that deprives her of the capacity to understand what marriage is. She may not have known her new husband’s favorite color, but this hardly rises to the level of incapacity to understand the nature of marriage itself.

 If you need assistance with any matrimonial or family law matter, whether it be divorce, separation, child custody, annulment, adoption, or anything else, our office has over 30 years experience in these areas. So please contact our office by e-mail or call 800-344-6431 for help.

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In addition to his wide-ranging experience in most major areas of law in general, and his extensive experience in Matrimonial and Family law  in particular, Mr. Schlissel has a particular expertise representing fathers in child custody matters.

Feel free to browse his Father’s Rights website for more information about that, or contact the office directly.

muslim-weddingProf. Howard M. Friedman, at the Religion Clause blog, has posted another very interesting case relating to New York Domestic Relations Law.

He reported on the case of Matter of Farraj, decided by the Surrogate’s Court in Kings County last week. In that case, Rabaa M. Hanash, the decedent Daoud Farraj’s wife, petitioned the court for an accounting of her husband’s estate. An adult child of the decedent, Saed Farraj, claimed that Rabaa had no standing to compel the accounting because she was not legally married to the decedent.

He claimed that this was the case because the couple did not obtain a marriage licence and were married in a Muslim ceremony in New Jersey, though they actually lived in New York. And according to New Jersey law (N.J. Stat. § 37:1-10) a marriage is absolutely void  if a the couple fails to obtain a marriage license before the ceremony. He argued, therefore, that Daoud and Rabaa’s marriage was void and that consequently, Rabaa was not a spouse with standing to petition to compel an accounting in her husband’s estate.

The Surrogate held that the validity of the marriage in question is governed by New York law,  and not New Jersey law, because the parties maintained their domicile in New York. Under New York law, marriages performed in religious ceremonies are recognized as valid even if no marriage license is obtained. The marriage between Radaa and Daoud was therefore valid under the governing New York law, so the court held that Radaa had standing to petition for an accounting in her husband’s estate proceeding.

I would like to consider the a slight variation on these facts though, to show that even though New Jersey law invalidates marriage ceremonies performed without a license, a New Jersey court would still validate the marriage in this case.

Normally, a New Jersey court would only have jurisdiction over an estate proceeding in the above-mentioned facts, if the parties’ primary domicile was in NJ. And if they had jurisdiction, they would have invalidated the marriage because the marriage ceremony took place without a license. But let’s say the couple had a vacation home in New Jersey and therefore had to do an ancillary probate proceeding in New Jersey to dispose of the home. In such a case, their domicile would still be in New York, but a New Jersey probate court would still have jurisdiction in the ancillary probate proceeding for the NJ vacation home.

Under those facts, if someone challenged the wife’s standing, a New Jersey court ought to agree that the couple’s marriage was valid under New York law (where the couple were domiciled) and therefore that the wife has standing as a widow of the decedent. It should further consider the couple’s marriage to be valid under New Jersey law, pursuant to the Constitution’s Full Faith and Credit clause (Article IV, Section 1), which obligates states to recognize  the “public acts, records, and judicial rulings” of other states. 

Because the couple was domiciled in New York, even a NJ court would hold that the marriage was valid under New York law, and by extension, under New Jersey law as well pursuant to the “full faith and credit” clause.

The New Jersey Supreme Court held in Heur v. Heur, 704 A 2d 913, 916 (1998), that “full faith and credit need not be accorded a judgment of another jurisdiction when the court issuing the judgment lacked the jurisdictional prerequisite of domicile.” Under our facts, the couple would have met the jurisdictional prerequisite of domicile in New York, and therefore a New Jersey court considering an ancillary probate proceeding  would apply New York law to determine the validity of Radaa and Daoud’s marriage. (Is it relevant that despite the couple’s domicile in New York, no New York court every officially ruled on the validity of their marriage?)

Thus, I think that were a New Jersey court to have jurisdiction over an ancilary probate proceeding under the facts, as suggested above, it would also recognize the validity of the Muslim ceremony, even without the marriage license, to give the decedent’s wife standing to petition for an accounting.

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