Hearing Needed to Prove Divorce Obtained in Ghana
The court declined to accord full faith and credit to a 'customary divorce' obtained in Ghana, where the parties had married, as there were several issues in dispute concerning the conduct of the divorce proceedings in Ghana, and their legality. T.T. v. K.A., (Sup. Ct., Nassau Cty. 6/18/08) (Falanga, J.).
The parties were married in a 'customary marriage' in Ghana. Defendant husband alleged the 'customary marriage' was 'customarily dissolved.' He alleged the Circuit Court in Ghana confirmed that the 'customary marriage' was dissolved in 1994 and the 'customary divorce' was recognized under the laws of Ghana. Plaintiff argued the Ghana divorce was not entitled to full faith and credit as she had no notice of the commencement of an action for divorce. Defendant argued New York must accord full faith and credit to the divorce as it was obtained in full compliance with Ghana's laws.
The court noted that the order was obtained ex parte by defendant's uncle and plaintiff's father, and the order did not divorce the parties, but only confirmed that they were divorced 'customarily.' In addition, issues remained under contention at this point, including whether plaintiff had knowledge of or had consented to or participated in the 'customary divorce.' Thus, comity did not require recognition of the Ghana divorce, because issues surrounding whether the couple had in fact been divorced could not be determined without a hearing.
Bankruptcy Filing Does Not Stay Execution of QDRO
Because a woman's interest in her ex-husband's retirement fund vested immediately upon judgment of divorce, her allotted portion of the retirement fund could not be included as property of the ex-husband's bankrupt estate, and the bankruptcy filing did not stay the court's execution of the QDRO. Zettwoch v. Zettwoch, (Family Ct., Orange Cty. 6/30/08) (Giacomo, J.).
The plaintiff ex-wife submitted a qualified domestic relations order (QDRO) for the division of defendant ex-husband's ERISA-qualified retirement plan. The defendant had, however, recently filed for bankruptcy and argued the bankruptcy filing automatically stayed the signing of the QDRO. The court noted that while the automatic bankruptcy stay applied to most actions, it did not apply to the collection of a domestic support obligation from property that was not the property of the estate. The question, therefore, was whether the QDRO fell under this exception.
The court found that, under ERISA, a spouse does not have any legal right to the property until a QDRO is filed. However, the fact that a QDRO was not yet filed does not negate the fact that the plaintiff had an equitable interest in the retirement fund. The court concluded that plaintiff's interest in defendant's retirement fund immediately vested in her upon the issuance of the divorce judgment and could not be included as property of the estate in the defendant's bankruptcy case. Thus, the bankruptcy filing did not stay the court's execution of the QDRO.
Divorcing Husband Can Not Change Venue of Estate Administration
With regard to venue for administration of decedent's estate, her husband ' estranged from his wife at the time of her death ' was unable to overcome the decedent's apparent intention to be treated as a resident of the new county to which she had moved. Will of Mary Susan Wayne, 348597 (Surrogate's Court, Nassau Cty. 6/3/08).
The decedent, Mary Wayne, was estranged from her husband and was living with her brother in Nassau County at the time of her death. Her husband, who lived in Niagara County, had filed for divorce prior to her death. In anticipation of the divorce, the couple had sold their home in Niagara County. Also, before she died, the decedent made out a will indicating that she was a resident of Nassau County and that she wanted to disinherit her husband.
Upon the decedent's death, her husband moved to transfer venue of the administration of her estate to Niagara County. Decedent's brother, the preliminary executor, opposed such a move, pointing out that the decedent had signaled her intention to change her county of residence by changing her driver's license and the billing address on her charge card to his address. The court found the brother/preliminary executor had met his burden of showing by clear and convincing evidence that the decedent changed her domicile from Niagara to Nassau County. It noted she no longer had a principal and permanent place of residence in Niagara after she and her husband separated and their home was sold, and she did not obtain another residence in Niagara County. Thus, the venue transfer motion was denied.
Court Erred in Ordering Pendente Lite Property Sale
Supreme Court, Otsego County, overstepped its authority when it ordered the sale of a couple's real property pendente lite. Buddle v. Buddle, — N.Y.S.2d —-, 2008 WL 2609254 (3d Dept. 7/3/08) (Peters, J.P., Spain, Carpinello, Lahtinen and Malone Jr., JJ.).
The parties were married in 1980, they were separated in 2001, and plaintiff commenced this action for a divorce in 2006. Once the divorce was filed for, the defendant began repeatedly to threaten to sell the Otsego County property the wife had moved to, which they owned together. In August 2007, the plaintiff moved by order to show cause for, inter alia, an order granting her the exclusive use and possession of the Otsego County property. After a hearing, however, Supreme Court ordered that the property be sold at fair market value. Plaintiff appealed.
Quoting Jancu v. Jancu, 241 AD2d 316, 317 (1997), the Appellate Division, Third Department, found it was well settled that, unless the parties consent, 'absent the termination of the marital relationship by judgment of divorce, amendment, separation or declaration of nullity, courts do not have the authority to direct, pendente lite, the sale of property owned by the parties as tenants by the entirety.' Here, the record was unclear as to the precise manner in which the property was held by the parties, although it was undisputed that they were married in 1980, acquired the property in 1988 and that both parties' names were on the title. The court concluded that because the acquisition of real property by married persons creates a tenancy by the entirety unless otherwise specified (see EPTL 6-2.2(b); Kahn v. Kahn, 43 NY2d 203, at 206-207), and there was no indication that the parties acquired the property in any other manner, the Supreme Court did not have the authority to order the pendente lite sale of the property.
Hearing Needed to Prove Divorce Obtained in Ghana
The court declined to accord full faith and credit to a 'customary divorce' obtained in Ghana, where the parties had married, as there were several issues in dispute concerning the conduct of the divorce proceedings in Ghana, and their legality. T.T. v. K.A., (Sup. Ct., Nassau Cty. 6/18/08) (Falanga, J.).
The parties were married in a 'customary marriage' in Ghana. Defendant husband alleged the 'customary marriage' was 'customarily dissolved.' He alleged the Circuit Court in Ghana confirmed that the 'customary marriage' was dissolved in 1994 and the 'customary divorce' was recognized under the laws of Ghana. Plaintiff argued the Ghana divorce was not entitled to full faith and credit as she had no notice of the commencement of an action for divorce. Defendant argued New York must accord full faith and credit to the divorce as it was obtained in full compliance with Ghana's laws.
The court noted that the order was obtained ex parte by defendant's uncle and plaintiff's father, and the order did not divorce the parties, but only confirmed that they were divorced 'customarily.' In addition, issues remained under contention at this point, including whether plaintiff had knowledge of or had consented to or participated in the 'customary divorce.' Thus, comity did not require recognition of the Ghana divorce, because issues surrounding whether the couple had in fact been divorced could not be determined without a hearing.
Bankruptcy Filing Does Not Stay Execution of QDRO
Because a woman's interest in her ex-husband's retirement fund vested immediately upon judgment of divorce, her allotted portion of the retirement fund could not be included as property of the ex-husband's bankrupt estate, and the bankruptcy filing did not stay the court's execution of the QDRO. Zettwoch v. Zettwoch, (Family Ct., Orange Cty. 6/30/08) (Giacomo, J.).
The plaintiff ex-wife submitted a qualified domestic relations order (QDRO) for the division of defendant ex-husband's ERISA-qualified retirement plan. The defendant had, however, recently filed for bankruptcy and argued the bankruptcy filing automatically stayed the signing of the QDRO. The court noted that while the automatic bankruptcy stay applied to most actions, it did not apply to the collection of a domestic support obligation from property that was not the property of the estate. The question, therefore, was whether the QDRO fell under this exception.
The court found that, under ERISA, a spouse does not have any legal right to the property until a QDRO is filed. However, the fact that a QDRO was not yet filed does not negate the fact that the plaintiff had an equitable interest in the retirement fund. The court concluded that plaintiff's interest in defendant's retirement fund immediately vested in her upon the issuance of the divorce judgment and could not be included as property of the estate in the defendant's bankruptcy case. Thus, the bankruptcy filing did not stay the court's execution of the QDRO.
Divorcing Husband Can Not Change Venue of Estate Administration
With regard to venue for administration of decedent's estate, her husband ' estranged from his wife at the time of her death ' was unable to overcome the decedent's apparent intention to be treated as a resident of the new county to which she had moved. Will of Mary Susan Wayne, 348597 (Surrogate's Court, Nassau Cty. 6/3/08).
The decedent, Mary Wayne, was estranged from her husband and was living with her brother in Nassau County at the time of her death. Her husband, who lived in Niagara County, had filed for divorce prior to her death. In anticipation of the divorce, the couple had sold their home in Niagara County. Also, before she died, the decedent made out a will indicating that she was a resident of Nassau County and that she wanted to disinherit her husband.
Upon the decedent's death, her husband moved to transfer venue of the administration of her estate to Niagara County. Decedent's brother, the preliminary executor, opposed such a move, pointing out that the decedent had signaled her intention to change her county of residence by changing her driver's license and the billing address on her charge card to his address. The court found the brother/preliminary executor had met his burden of showing by clear and convincing evidence that the decedent changed her domicile from Niagara to Nassau County. It noted she no longer had a principal and permanent place of residence in Niagara after she and her husband separated and their home was sold, and she did not obtain another residence in Niagara County. Thus, the venue transfer motion was denied.
Court Erred in Ordering Pendente Lite Property Sale
Supreme Court, Otsego County, overstepped its authority when it ordered the sale of a couple's real property pendente lite. Buddle v. Buddle, — N.Y.S.2d —-, 2008 WL 2609254 (3d Dept. 7/3/08) (Peters, J.P., Spain, Carpinello, Lahtinen and Malone Jr., JJ.).
The parties were married in 1980, they were separated in 2001, and plaintiff commenced this action for a divorce in 2006. Once the divorce was filed for, the defendant began repeatedly to threaten to sell the Otsego County property the wife had moved to, which they owned together. In August 2007, the plaintiff moved by order to show cause for, inter alia, an order granting her the exclusive use and possession of the Otsego County property. After a hearing, however, Supreme Court ordered that the property be sold at fair market value. Plaintiff appealed.
Quoting Jancu v. Jancu , 241 AD2d 316, 317 (1997), the Appellate Division, Third Department, found it was well settled that, unless the parties consent, 'absent the termination of the marital relationship by judgment of divorce, amendment, separation or declaration of nullity, courts do not have the authority to direct, pendente lite , the sale of property owned by the parties as tenants by the entirety.' Here, the record was unclear as to the precise manner in which the property was held by the parties, although it was undisputed that they were married in 1980, acquired the property in 1988 and that both parties' names were on the title. The court concluded that because the acquisition of real property by married persons creates a tenancy by the entirety unless otherwise specified (see EPTL 6-2.2(b); Kahn v. Kahn , 43 NY2d 203, at 206-207), and there was no indication that the parties acquired the property in any other manner, the Supreme Court did not have the authority to order the pendente lite sale of the property.
