DeLyra v. DeLyra

74 N.Y.2d 872 (1989)

Barbara DeLyra, Respondent, v. Raymund DeLyra, Appellant.

Court of Appeals of the State of New York.

Argued September 8, 1989.

Decided October 19, 1989.

Joseph C. Leshen and Philip F. Alba for appellant.

Gary F. Westfal for respondent.

Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.

*873MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

The parties were married on October 14, 1977, and lived together as husband and wife for seven years. In 1984, plaintiff brought this matrimonial action seeking a divorce. Defendant counterclaimed for a declaration that the marriage was void ab initio because at the time of the wedding (see generally, Domestic Relations Law arts 2, 3) in 1977, plaintiff was still married to her former husband (see, Domestic Relations Law § 140 [a]). Supreme Court declared the parties' marriage void, finding certain defects with respect to plaintiff's Dominican Republic divorce decree which rendered the decree ineffective to terminate the prior marriage. After declaring the nullity of the parties' marriage, Supreme Court ordered that the parties' marital property be equitably distributed pursuant to Domestic Relations Law § 236 (B) (5). The Appellate Division affirmed.

Domestic Relations Law § 236 (B) (5) (a) provides that a court shall make an equitable distribution of marital property in an action "wherein all or part of the relief granted is * * * the * * * declaration of the nullity of a marriage". The Appellate Division properly concluded that under the facts of this case, where the parties' void marriage has been declared a nullity, their marital property is subject to equitable distribution. Accordingly, the certified question is answered in the affirmative.

Order affirmed, with costs, and the certified question answered in the affirmative in a memorandum.