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When Plaintiff Moved, Court Said She Gave Up Marital Property


This case is being heard in the Supreme Court of the State of New York, Special Term, located in Nassau County. The plaintiff in the case is Theresa Huber and the defendant in the case is Adolph Huber. Both the defendant and the plaintiff have moved for summary judgment.

Case Background

A New York Family Lawyer said the parties were married in the state of New York in 1946. In 1959, the plaintiff wife moved to Florida and established a residence there. On the 11th of May, 1960, the plaintiff wife was granted an absolute divorce in the state of Florida. The premises of the couple during their marriage was sought to be partitioned.

The decree of divorce made in the state of Florida is presumed to be valid. However, the complaint and moving papers from the case were not served to the defendant during the Florida proceeding. A New York Criminal Lawyer said the rules stated in the case of De France versus Oestrike do not apply in this case because the defendant was aware of the proceeding that took place in the state of Florida and the facts of the case in regard to the domicile appear to be known to him.

The defendant does not deny that the decree made in the state of Florida is valid. However, he states that he did not appear in court in Florida and was not served any documentation in regard to the Florida case. An affidavit from the defendant’s lawyer states that the divorce in Florida was obtained without the service or process to the defendant, but this is based on hearsay and is insufficient evidence to raise an issue in this matter. The jurisdiction of the Florida court in this case is not being argued.

Court Discussion

Jurisdiction in this case does come into play when determining why the motion made by the plaintiff must be denied and the motion made by the defendant must be granted. A Nassau County Family Lawyer said the partition cannot be made in its entirety as the plaintiff is asking. The reason is that when the plaintiff was granted the divorce in the state of Florida, the marriage was dissolved and her claim on the subject parcel was terminated by this decree.

When the plaintiff chose to move her residency to Florida, it is essentially determined that she gave up her rights to the marital property in this matter. She no longer resided in the residence and therefore has no valid claim to partition the property in question.

If the divorce was granted in New York, there would be no difference in the case should one of the parties choose to leave the property. In cases of divorce, when one party is granted a divorce in such a way that the other party is unaware of the proceeding and is not represented during the case, there can be no judgment granting a partition of the property to the individual that sought the divorce after the matter.

Court Decision

The court is ruling in favor of the defendant. A Queens Family Lawyer said the complaint that is made by the plaintiff against the defendant is dismissed through a short order form.

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