137 Misc. 2d 859 | N.Y. Sup. Ct. | 1987
OPINION OF THE COURT
Plaintiff herein moves for a pretrial order determining the respective rights of the parties to separate and marital property following an ex parte foreign divorce (Domestic Relations Law § 236 [B] [5].
The parties herein were married on August 8, 1948. There are three emancipated issue of the marriage. The husband joined the Nassau County Police Department on May 6, 1949 and retired on August 14, 1970 selecting one of several pension options available to him. Defendant, on February 6, 1984, relocated to Florida and on February 25, 1985 instituted a
REAL PROPERTY
In the case of a tenancy by the entirety, the death of one of the spouses causes the interest of the surviving spouse to become absolute (Knight v Knight, 25 NY2d 957 [1969], affg opn below 31 AD2d 267 [2d Dept 1969]; Matter of Lyon, 233 NY 208 [1922]; Zorntlein v Bram, 100 NY 12 [1885]; Bertles v Nunan, 92 NY 152 [1883]; 9A Rohan, NY Civ Prac fl 6-2.1 [7] [f] [in]). However, when tenants by the entirety are divorced, their tenancy is ipso facto converted into a tenancy in common (Kahn v Kahn, 43 NY2d 203 [1977]; Kover v Kover, 29 NY2d 408 [1972]; Stelz v Shreck, 128 NY 263 [1891]; 9A Rohan, NY Civ Prac [j 6-2.1 [7] [h] [i]). It is clear that all survivorship rights are necessarily extinguished (Hendel v Hendel, 44 AD2d 532 [1st Dept 1974]). However, an exception exists when the parties were divorced by an ex parte foreign divorce decree.
Prior to Williams v North Carolina (325 US 226 [1945]), New York refused to give effect to foreign divorce decrees either as to marital status or property rights (Vanderbilt v Vanderbilt, 1 NY2d 342 [1956], affd 354 US 416). After the Williams case (supra) such decrees were accorded full faith and credit, but only insofar as the marital status had been adjudicated. Thus, the concept of divisible divorces was born, and it was held that foreign ex parte decrees did not affect economic incidents arising out of the marital relationship (Vanderbilt v Vanderbilt, supra; see, Estin v Estin, 334 US 541
The court further holds that the above rule with respect to the effect of an ex parte divorce on New York real property has not been changed by the New York Equitable Distribution Law (Domestic Relations Law § 236). While it is true that the definition of marital property has been construed to embrace property held as tenants by the entirety (Kobylack v Kobylack, 96 AD2d 831 [2d Dept 1983], revd and remitted 62 NY2d 399 [1984], on remand 111 AD2d 221 [2d Dept 1985]; Jacoby v Jacoby, NYLJ, May 10, 1982, at 18, col 2 [Sup Ct, Queens County, Rodell, J.]), and while certain commentators have opined that subdivision (2) of part (B) of the Equitable Distribution Law (which in part provides that a matrimonial action
Nor did plaintiff prejudice herself by not appearing in the Florida action and contesting jurisdiction (see, e.g., Simons v Miami Beach First Natl. Bank, 381 US 81 [1965], reh denied 381 US 956 [1965] [loss of inchoate dower rights in husband’s Florida estate]; Rosenstiel v Rosenstiel, 368 F Supp 51 [SD NY 1973], affd 503 F2d 1397 [2d Cir 1974] [termination of intestate distribution rights pursuant to EPTL 5-1.2 (a) (1)]), since, by virtue of her being a tenant by the entirety with her deceased husband, upon his death, she succeeds by operation of law to sole title of the subject real property.
PERSONAL PROPERTY
Had defendant not died during the pendency of the New York proceedings, the court would have agreed with commentators Foster, Freed and Brandes that the ex parte Florida divorce decree would have triggered plaintiff’s rights to institute a proceeding for equitable distribution following foreign divorce (3 Foster, Freed & Brandes, Law and the Family New York § 611, at 269). Here, however, given the death of defendant, the right to equitable distribution of marital property abated at the death of one of the parties to the proceeding (Matter of Schwartz, 133 Misc 2d 1064 [Sur Ct, Nassau County 1986]). Accordingly, with regard to any claims she may have as to personal property, she is relegated to claims against the decedent’s estate.