New York Family Law Blog
This is an action for separation being heard in the Special and Trial Term of the Supreme Court in New York County. Rue Magowan is the plaintiff wife seeking the separation. Edward S. Magowan is the defendant of the case. A New York Family Lawyer said the plaintiff wife states that the defendant was cruel to her during the marriage and that he has abandon her and failed to support her. The defendant has made a counterclaim against the plaintiff stating that the plaintiff’s previous divorce was not valid which means that their marriage was never valid.
Case Background
The divorce in question in this case was granted in the state of Alabama in the Circuit Court of Montgomery County. The divorce was granted on the third of March in 1955. The defendant and plaintiff were married in 1957 on the 21st of May. Their marriage took place in Hot Springs Arkansas.
The defendant argues that the divorce decree from the court in Alabama is not valid because the plaintiff was not a resident of the state of Alabama when she started the action for the divorce and for this reason the Alabama court did not have jurisdiction in the case.
A New York Custody Lawyer said the plaintiff disputes this argument made by the defendant and states that the decree made in Alabama is valid and the marriage between the two parties is legal. She states that she had been a resident of the state of New York prior to going to Alabama, she went to Alabama at the time to establish a residency and not just to obtain the divorce. She points to the fact that she opened a bank account while there, obtained a library card and investigated real estate in the area in the hopes to start a dance school.
One important note in this case is the fact that the plaintiff went to Alabama from New York State after her and her earlier husband had worked out a financial settlement in a separation action that was pending in the courts in New York. When she arrived in Alabama she found a lawyer and commenced a divorce proceeding. Her previous husband was not a resident of Alabama at the time of the divorce hearing.
Court Discussion and Decision
The plaintiff maintains her argument that the divorce obtained in Alabama was rendered during a proceeding where both parties appeared and while the jurisdictional issue came into question, the decree is conclusive and must be recognized by the state of New York. However, a Nassau County Family Lawyer said the court finds that this claim is false. The divorce was not obtained with the full consent of both parties.
A Nassau County Custody Lawyer said it is found that at the time the plaintiff married the defendant her marriage to her former husband was still in effect. For this reason, her marriage to the defendant is found to be void and her action for separation must fail. The judgment is in favor of the defendant.
The counterclaim made by the defendant is granted and the marriage is nullified.
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