MARRIAGE 
Wednesday, September 16, 2009, 07:29 PM
Posted by Administrator
I've got two marriage stories that I believe it is safe (from the perspective of not disclosing client's secrets) to tell. Here goes:

ANNULMENT

Someone just emailed me about getting and annulment and it brought this story to mind. An annulment is the court's determination that the supposed husband and wife never were married to each other. To be married, here are the requirements:
1) Get a license from whatever jurisdiction you intend to get married in. Usually, you get the license from the county clerk. You don't have to be a resident there. You just need to apply and pay money.
2) Get a person who is qualified under the law of where you are to marry you: a priest, rabbi, notary, judge, clerk of court, ship captain (though I don't know where you'd get the license from).
3) Get together with your prospective spouse and the person qualified to marry you and then both of you express your present intention to marry each other ("I do" will do).
..........and you're married.

The issue of the fact of the marriage usually revolves around whether when you said "I do" you meant that you right then, at that moment, with (more or less) full mental capacity did...intend to marry...the other person...who, at the same exact moment in time intended to marry you. If you were mentally incapacitated......on drugs.......drunker than crap....you might not have meant "I do" and all you need is to get a court with jurisdiction over you and your spouse or your marriage to declare that you didn't have a present intention to marry and ...your marriage is annulled. ...and you never were married....at least not to that particular him/her.

So, the story:

Years ago, I had a client who told me that the only reason she married her husband was that he threatened to kill her children (from a previous marriage) if she didn't. Years after the "marriage" we sued for annulment. The judge bought her story. She had been unduly influenced...had been deprived of her free will by the threat......never meant the "I do". The court annulled the marriage...making a determination that she had never been married to this guy.

And, my other story: UN-NOT DIVORCED

A few years ago, some people came to see me and here was their story. She was a naturalized American citizen from, I think, Germany and he was a German citizen and they had married and she had applied for him to become a naturalized American and the Immigration people said "no". Their idea was that she was already married...to someone else..so her marriage to the German wasn't valid.

His immigration lawyer sent them to see me. It seemed that Immigration would have to accept that they were really married to each other if a state court judge determined that they were married (the opposite of an annulment.......and I'd never seen a judge declare people married, only divorced or annulled...still, I couldn't think of a reason it couldn't be done).

Immigration's idea was that she was still married to her first husband because, years before, while she was a resident of New York, she got a divorce in the Dominican Republic. New York was and is a tough state in which to get a divorce. My understanding is that you've got to prove adultery or desertion or abuse or you've got to be separated for a year......and the separation has got to be a "legal separation".....a separation that is recognized by the court. My understanding is that in the old days, when this woman got her divorce, you needed both the adultery/desertion/etc. AND the year's separation. On the other hand, Mexico and the Dominican Republic would be happy to give you a divorce..just come with money.

But, the problem was that these other countries didn't really have jurisdiction over the marriage.........you didn't live there.......and they didn't have any right to exercise jurisdiction over your spouse......he didn't live there. And the "due process" rights we take for granted (notice and the opportunity to be heard) didn't apply in these foreign countries. The idea is that if your wife wants to divorce you in the Dominican Republic you should get notice of the hearing and the hearing should give you the right to be heard and present your case AND YOU SHOULDN'T HAVE THE HEARING THERE ANYWAY because you've got nothing to do with the Dominican Replubic, you've never been there, you've never lived there with your wife and what gives some judge there the right to adjudicate your case.

And the New York courts made it absolutely clear in the 70's that these foreign divorces weren't going to be valid in New York...that New York residents remained married until divorced by a New York court...at least until it became clear that a lot of these divorced New York couples had moved on and married other people and had kids. So, faced with the choice of determining that kids who thought their parents were married would be declared bastards and that innocent couples would be deemed bigamists and adulterers, the New York court ignored New York law and their own rulings and said these foreign divorces were, actually okay.

Here is what I did besides doing all this research on New York law:
I filed an action in family court for a declaratory judgment that the ex-German was, in fact married to the German. I sent a copy of our Petition to the ex-German's ex-husband in Switzerland (he had remarried and agreed that they were divorced and was happy to cooperate) and I asked him to prepare some papers submitting to the jurisdiction of the Florida court and agreeing that the Florida judge ought to decide that he was divorced from his ex-wife.

With my papers in hand, I walked into the family division courtroom of Judge Catherine Brunson and waited in the back. Don't tell anyone this but if you want to do something unusual, it pays to be last. Let everyone else go ahead of you. You don't need an audience. You don't need lawyer's raised eyebrows giving the Judge the impression that he/she is about to sign something they shouldn't sign. You don't need to chat about it later with the other lawyers who were looking on. Do your job, keep your head down and leave when you are done.

Here (and, as always with my stuff, I believe), it was all on the up and up but, still the rule applies, because it is the rule.

So, I sat there as lawyers got their clients divorced and lawyers argued procedural things in other clients divorces and, when everyone was gone, I got up and said, more or less "Judge, I need you to declare these people to be married." And I told her about the New York law and the ex-husband in Switzerland and showed her his papers and.......because there was no reason not to.........the Judge signed the papers declaring the Dominical Republic divorce valid and the marriage valid.

And, since the Full Faith and Credit Clause of the Constitution of these United States says that the ruling of courts of every state be recognized in every other state, the ex-German and the German were, in fact, now married in the eyes of every court in the land. And even Immigration couldn't ignore that.
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