New York Family Law Blog
A man and a woman married in New York and a daughter was born. The wife claims that they moved to Israel in 1987, with the intention of living there permanently. Although they purchased an apartment in Israel, the husband claims that he had no intention of permanently relocating there and had applied for permanent residency in that country only to obtain government benefits for his wife and daughter. It appears that the husband returned to New York in 1987 and has lived here ever since. A New York Family Lawyer said he is an Israeli citizen and their daughter who is a citizen of both the United States and Israel, have remained in Israel and continue to reside there.
In September of 1989, during religious divorce proceedings initiated by the husband, the Rabbinical Court of Israel, which has jurisdiction over matrimonial matters, awarded the child custody of the daughter to the wife and prohibited removal of the child from Israel without the permission of the Rabbinical Court. On December 12, 1989, the Rabbinical Court ordered the husband to pay his wife a guarantee for alimony and child support payments. A New York Custody Lawyer said the husband did not follow through with the religious divorce at that time.
The husband obtained a default judgment in court, awarding him a judgment of divorce upon the ground of abandonment. The divorce decree awarded joint child custody of the daughter and directed the husband to continue paying monthly child support. The parties were also ordered to sell the apartment in Israel and to split the proceeds, when either the daughter reaches emancipation or the wife remarries. It appears from the Judgment of Divorce that the court was not made aware of the prior proceedings in Israel.
In March of 1993, the husband reinstated religious divorce proceedings in Israel and the same year, the Rabbinical Court ruled that the parties were to obtain a religious divorce and ordered counseling for the daughter to renew her relationship with her father. The Rabbinical Court ordered the parties to negotiate a divorce and reduced the monthly spousal and child support. In 1994, the Rabbinical Court issued several orders concerning the daughter’s visitation with her father in New York. On August 4, 1994, the Rabbinical Court reduced the husband’s monthly alimony and child support, as a result of the wife’s failure to comply with the Rabbinical Court’s visitation orders. A Nassau County Family Lawyer said the appellate Rabbinical Court upheld the lower Rabbinical Court’s support and visitation determinations. Both parties were represented by counsel on each occasion before the Rabbinical Court.
There are two forms of jurisdiction involved in matrimonial cases–in rem over the marital status and in personam over the individual spouse. The court may exercise in rem jurisdiction over the marital status, provided one of the applicable provisions of the residency requirements is satisfied. Once notice is properly served upon the accused, the court may enter a binding judgment of divorce, separation, or annulment, but it may not enter a judgment adjudicating the economic, child custody, and child support rights of the parties. In personam jurisdiction must be acquired over the person in accordance to the Civil Practice Law and Rules or by consent in order to determine the issues.
The husband has met the residency requirements contained in the Domestic Relations Law and its notice of requirements. The wife did not appear and a default judgment for divorce was entered. Although the wife alleges she was never served, she does not challenge the court’s in rem jurisdiction and accepts the judgment of divorce.
The wife, however, said a Queens Family Lawyer, does challenge the court’s in personam jurisdiction to adjudicate the equitable distribution, child support, and child custody provisions incorporated in the divorce decree. If service has not been properly served, the court is without jurisdiction and a default judgment must be unconditionally vacated.
The wife was served in accordance to Civil Practice Law and Rules and under the said law, service outside the State of New York must be made in the same manner as service within the State. The treaty, which supersedes state statutes pursuant to the supremacy clause of the United States Constitution, requires service upon parties in a signatory nation to be made through a Central Authority designated by the signatory nation. The only exception to the rule that is applicable to the instant matter states that provided the State of designation does not object, the present Convention shall not interfere with the freedom to send judicial documents, by postal channels, directly to persons abroad, the freedom of judicial officers, officials, or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials, or other competent persons of the State of destination and the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials, or other competent persons of the State of designation.
Israel objected and signed the treaty with the reservation that the State of Israel, in its quality as State of destination will effect the service of judicial documents only though the Directorate of the Courts, and only where an application for such service emanates from a judicial authority or from the diplomatic or consular representation of a Contracting State.
The husband sent the summons and complaint to the son-in-law of the wife’s brother in Israel, to personally serve the wife. He did not make service through the Directorate of the Courts, as required by Israel in the treaty. Therefore, service was improper.
The husband did not send the summons and complaint directly to the wife by registered mail as he had done with the Judgment of Divorce and Notice of Entry. Instead, he sent it to a third party for service upon the wife. However, even if the husband did send the process directly to the husband by registered mail, the word send does not encompass legal service. It is evident by the fact that the word service is used in every section of the treaty that prescribes methods of service.
In any event, the husband did not comply with any of the Convention requirements insofar as they pertain to Israel, sufficient to confer personal jurisdiction over the wife. The default judgment against the wife, regarding equitable distribution, child custody, child support and visitation, must be vacated for lack of in personam jurisdiction.
The husband’s request for recognition of the Rabbinical Court’s support orders is denied on the ground that there is no application pending in the court to enforce judgments. Furthermore, the wife’s request for a hearing on equitable distribution is denied. The court declines to exercise jurisdiction over the issue, which should more appropriately be addressed in the matrimonial proceedings currently before the Rabbinical Court of Israel. The parties, however, are not precluded from seeking to enforce or modify the Rabbinical Court’s equitable distribution decision in the court if interests in the State of New York are affected. Nor are they precluded from seeking equitable distribution in the court if the Rabbinical Court does not address the distribution of property. Finally, although the husband claims that religious divorce proceedings are pending in Israel and that the wife has stalled the proceedings to prolong spousal support under religious law, the husband is directed to follow through with the Get to remove the barriers to the husband’s remarriage, as required by the Domestic Relation’s Law.
Even if husband and wife separate, their individual obligation to their children does not end with the marriage. The Queens Divorce Attorneys can help you succeed in your divorce lawsuit. In seeking support, be sure to be represented by a Queens Child Support Lawyer. If you want your children to be on your care, be sure to hire a Queens Child Custody Attorney from Stephen Bilkis and Associates.