Divorce Decree

A New York Appeals Court upheld a ruling in favor of Philip Smith, President of the Shubert Organization, awarding him a divorce from his wife on the basis of cruel and inhuman treatment.  The court, specifically, referred to Tricia Smith’s very public YouTube video regarding her separation, as a determining factor for the divorce. 

Public Humiliation– Cruel and Inhuman Treatment

The Court of Appeals specifically referenced Tricia Smith’s use of YouTube videos, to embarrass her husband as grounds for cruel and inhuman treatment.   As most know, New York is a unique state, in that we don’t recognize no-fault divorces.  In New York, one must allege a specific reason for divorce. During her YouTube video, Mrs. Smith referenced her lack of a intimate life with her husband.  Lack of a sex life constitutes constructive abandonment in an action for divorce in New York. 

Public Forum, Private Issue

What’s painfully clear is that people should be very careful about their use of the Internet and especially social marketing.  It makes sense that people would rely on public forums to vent relationship frustrations, however, there has to be a limit as to what to say and what not to say.  After all, Facebook, Twitter, LinkedIn, etc. are public forums and, therefore, searchable and admissible in any court of law.  Word to the wise, if things get tough, pick up a phone and call someone you trust, don’t trust your deepest emotions to the Internet.

What may seem like a simple, uncontested divorce may get a little tricky when the Defendant has moved to a foreign location.  However, if your spouse is presently residing outside of the State of New York, it is your responsibility to ensure that he or she is personally served with the divorce summons and complaint.

Recently. I struggled with this issue as I was trying to serve  a Defendant in another country and my client had very little information about his spouse’s whereabouts.  I discovered the following ways to serve a divorce summons and complaint in a foreign country:

Personal Service By a Family Member

A great way to serve someone in another country is to ask a family member or friend who might visit country where the Defendant resides to personally serve the Defendant.  The person who serves the complaint must complete a notarized affidavit of service as proof of service of the divorce summons and complaint.

Foreign Consulate

Many jurisdictions require you to send a divorce summons and complaint to the Consulate in the foreign country.  The Consulate will then serve the Defendant.  The Defendant might then be summoned and served at the Consulate in the foreign country.  The Defendant will complete the Affidavit of Defendant, which will be returned to you.  You should submit the Affidavit of Defendant to the Court, handling the divorce proceedings.

Alternative Service of Process

Alternative methods of service of process might include the mail or a newspaper publication.  Please note:  There are certain countries which do not allow Service of process by mail.  Please confirm your method of service with an attorney, prior to effectuating service of the summons and complaint.

If the Court grants permission of service by mail, the International mail package should be accompanied by a return receipt form.  The return receipt will be signed by the person who accepts the divorce complaint in the foreign location.  The return receipt will be returned to you as proof that service was effectuated.  The receipt will eventually be presented to the court.

Conclusion

The requirements for service of a divorce summons and complaint in foreign jurisdictions vary by country.  It is most prudent to consult with an experienced attorney who can help you decide the most appropriate method of service for your particular situation.

In conjunction with the amendments to the New York Power of Attorney, effective as of September 1st 2009, previously discussed in detail here, the New York State government enacted a mechanism for a principal to grant an agent the power to transfer gifts to a beneficiary. The New Power of Attorney controls the handling of the principal’s general affairs, while the Statutory Major Gifts Rider (SMGR) will govern the agent’s ability to gift the principal’s assets during the principal’s lifetime. The provisions governing the SMGR are set forth in NY G.O.L. §5-1514.     

Summary of the SMGR Provisions

The SMGR requires a principal to execute a separate addendum to the New York Power or Attorney, permitting an agent to transfer major gifts to spouses, children, distant descendants or gifts to other beneficiaries.  In addition to the power to make gifts, the SMGR may also empower an agent to change or create rights of survivorship or add a beneficiary designation.  Lastly, the principal is also able to give the agent the power to grant a gift to himself/herself. 

Divorce and the SMGR

If two people divorce, the marriage is annulled, dissolved or otherwise invalidated, the agent loses the ability to make a gift to a former spouse under the SMGR.  However, if the principal decides to remarry a former spouse, the agent will be re-empowered to make a major gift to the spouse.

Conclusion

The SMGR must be signed, notarized and witnessed by two disinterested people (those that do not stand to benefit from a principal’s gift).  The principal must execute the SMGR and the New Power of Attorney simultaneously.   The method of execution for a SMGR is similar to that of executing a will.  Should you require any further information about the new Power of Attorney or the Statutory Major Gifts Rider, please contact us.