ARTICLE 13: Provisions Applicable to More Than One Type of Matrimonial Action
(provided by Divorce Source, Inc.)
Published 6.5.98
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Sec. 230. Required residence of parties. An action to annul
a marriage, or to declare the nullity of a void marriage, or for
divorce or separation may be maintained only when:
1. The parties were married in the state and either party is
a resident thereof when the action is commenced and has been a
resident for a continuous period of one year immediately
preceding, or
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2. The parties have resided in this state as husband and
wife and either party is a resident thereof when the action is
commenced and has been a resident for a continuous period of one
year immediately preceding, or
3. The cause occurred in the state and either party has been
a resident thereof for a continuous period of at least one year
immediately preceding the commencement of the action, or
4. The cause occurred in the state and both parties are
residents thereof at the time of the commencement of the action,
or
5. Either party has been a resident of the state for a
continuous period of at least two years immediately preceding the
commencement of the action.
Sec. 231. Residence of married persons. If a married person
dwells within the state when he or she commences an action
against his or her spouse for divorce, annulment or separation,
such person is deemed a resident thereof, although his or her
spouse resides elsewhere.
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Sec. 232. Notice of nature of matrimonial action; proof of
service.
a. In an action to annul a marriage or for divorce or
for separation, if the complaint is not personally served with
the summons, the summons shall have legibly written or printed
upon the face thereof: "Action to annul a marriage", "Action to
declare the nullity of a void marriage", "Action for a divorce",
or "Action for a separation", as the case may be, and shall
specify the nature of any ancillary relief demanded. A judgment
shall not be rendered in favor of the plaintiff upon the
defendant`s default in appearing or pleading, unless either (1)
the summons and a copy of the complaint were personally delivered
to the defendant; or (2) the copy of the summons (a) personally
delivered to the defendant, or (b) served on the defendant
pursuant to an order directing the method of service of the
summons in accordance with the provisions of section three
hundred eight or three hundred fifteen of the civil practice law
and rules, shall contain such notice.
b. An affidavit or certificate proving service shall state
affirmatively in the body thereof that the required notice was
written or printed on the face of the copy of the summons
delivered to the defendant and what knowledge the affiant or
officer who executed the certificate had that he was the
defendant named and how he acquired such knowledge. The court
may require the affiant or officer who executed the affidavit or
certificate to appear in court and be examined in respect
thereto.
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Sec. 233. Sequestration of defendant`s property in action
for divorce, separation or annulment where defendant cannot be
personally served. Where in an action for divorce, separation,
annulment or declaration of nullity of a void marriage it appears
to the court that the defendant is not within the state, or
cannot be found therein, or is concealing himself or herself
therein, so that process cannot be personally served upon the
defendant, the court may at any time and from time to time make
any order or orders without notice directing the sequestration of
his or her property, both real and personal and whether tangible
or intangible, within the state, and may appoint a receiver
thereof, or by injunction or otherwise take the same into its
possession and control. The property thus sequestered and the
income therefrom may be applied in whole or in part and from time
to time, under the direction of the court and as justice may
require, to the payment of such sum or sums as the court may deem
it proper to award, by order or judgment as the case may be, and
during the pendency of the action or at the termination thereof,
for the education or maintenance of any of the children of a
marriage, or for the support of a spouse, or for his or her
expenses in bringing and carrying on said action and the
proceedings incidental thereto or connected therewith; and if the
rents and profits of the real estate, together with the other
property so sequestered, be insufficient to pay the sums of money
required, the court, upon such terms and conditions as it may
prescribe, may direct the mortgage or sale of sufficient of said
real estate to pay such sums. The court may appoint the
plaintiff spouse receiver or sequestrator in such cases. The
court may authorize such spouse to use and occupy, free of any
liability for rent or use and occupation or otherwise, any house
or other suitable property of the defendant spouse as a dwelling
for himself or herself with or without the children of the
marriage, and may likewise turn over to the plaintiff spouse for
the use of such spouse with or without the children of the
marriage any chattel or chattels of the defendant spouse. The
relief herein provided for is in addition to any and every other
remedy to which a spouse may be entitled under the law.
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Sec. 234. Title to or occupancy and possession of property. In any
action for divorce, for a separation, for an annulment or to declare the
nullity of a void marriage, the court may (1) determine any question as to
the title to property arising between the parties, and (2) make such
direction, between the parties, concerning the possession of property, as
in the court`s discretion justice requires having regard to the
circumstances of the case and of the respective parties. Such direction
may be made in the final judgment, or by one or more orders from time to
time before or subsequent to final judgment, or by both such order or
orders and final judgment. Where the title to real property is affected, a
copy of such judgment, order or decree, duly certified by the clerk of the
court wherein said judgement was rendered, shall be recorded in the office
of the recording officer of the county in which such property is situated,
as provided by section two hundred ninety-seven-b of the real property law.
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Sec. 235. Information as to details of matrimonial actions or
proceedings.
1. An officer of the court with whom the proceedings in a
matrimonial action or a written agreement of separation or an action or
proceeding for custody, visitation or maintenance of a child are filed, or
before whom the testimony is taken, or his clerk, either before or after
the termination of the suit, shall not permit a copy of any of the
pleadings, affidavits, findings of fact, conclusions of law, judgment of
dissolution, written agreement of separation or memorandum thereof, or
testimony, or any examination or perusal thereof, to be taken by any other
person than a party, or the attorney or counsel of a party, except by order
of the court.
2. If the evidence on the trial of such an action or proceeding be such
that public interest requires that the examination of the witnesses should
not be public, the court or referee may exclude all persons from the room
except the parties to the action and their counsel, and in such case may
order the evidence, when filed with the clerk, sealed up, to be exhibited
only to the parties to the action or proceeding or someone interested, on
order of the court.
3. Upon the application of any person to the county clerk or other
officer in charge of public records within a county for evidence of the
disposition, judgment or order with respect to a matrimonial action, the
clerk or other such officer shall issue a "certificate of disposition",
duly certifying the nature and effect of such disposition, judgment or
order and shall in no manner evidence the subject matter of the pleadings,
testimony, findings of fact, conclusions of law or judgment of dissolution
derived in any such action.
4. Any county, city, town or village clerk or other municipal official
issuing marriage licenses shall be required to accept, as evidence of
dissolution of marriage, such "certificate of disposition" in lieu of a
complete copy of the findings of fact, conclusions of law and judgment of
dissolution.
5. The limitations of subdivisions one, two and three of this section in
relation to confidentiality shall cease to apply one hundred years after
date of filing, and such records shall thereupon be public records
available to public inspection.
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