CAN YOU GET A DIVORCE WHEN YOU ARE ALSO MARRIED TO SOMEONE ELSE?

Well, you can get it annulled but still there will be equitable distribution. It will be interesting to see how this case plays out.

ER v. JR, 2021 NY Slip Op 50993 - Nassau Co.  Supreme Court October 21, 2021:

"The Defendant moves by Notice of Motion for an Order dismissing the Plaintiff's cause of action in its entirety, based upon documentary evidence and the failure to state a cause of action.

The Plaintiff ER (the "Wife") and the Defendant JR (the "Husband") (the "Parties") were married in a religious ceremony in Westbury, New York on February 27, 2016. During the marriage, the Parties resided with the Husband's parents at their home in Levittown, New York. There are no children of the marriage, and none are expected.

The Wife alleges that the Husband became physically and emotionally abusive after her first pregnancy resulted in miscarriage. She moved out of the marital residence in November of 2019. On May 3, 2021, she filed the instant action for divorce on the grounds of irretrievable breakdown of the relationship (DRL §170[7]). The Wife's Verified Complaint states claims for maintenance and equitable distribution of marital property, among other things (NYSCEF Doc. 1).

The Husband now moves to dismiss the action on the grounds that the marriage is void. He asserts that on May 17, 2015, he married an individual named YV in San Salvador. He asserts further that the marriage between him and YV was never terminated by way of divorce or annulment, and that he has spoken with her as recently as January of 2021, indicating that she is not deceased. Therefore, he argues, insofar as he was previously married and remained married at the time of his marriage to the Wife, the marriage to the Wife is void.

As proof of the foregoing, the Husband submits: (i) his Affidavit, attesting to the facts alleged (NYSCEF Doc. 6); (ii) the Apostille Certificate of Marriage from San Salvador, along with a certified translation (NYSCEF Doc. 9); (iii) the Apostille Birth Certificate of YV amended after marriage, along with a certified translation (NYSCEF Doc. 10); and (iv) the Apostille Certificate of Marriage from the United States, along with a certified translation (NYSCEF Doc 11).

According to the Husband, the above proof establishes that he was already married at the time of his marriage to the Wife, and that the latter marriage is void. Therefore, he argues, the Wife does not have a valid cause of action for divorce, and dismissal is warranted pursuant to CPLR §3211(a)(7). Morever, he argues, the documentary proof submitted in support of the motion is sufficient to warrant dismissal of the instant divorce action pursuant to CPLR §3211(a)(1).

The Wife opposes the motion on the grounds of insufficient proof. She contends that the Husband has failed to prove that he did not divorce YV or annul the marriage between them, or that YV is still alive. In the alternative, the Wife argues that even if the Parties' marriage is deemed void, she still is entitled to pursue her claims for maintenance and equitable distribution. The Wife asserts that she deserves both. The Husband defrauded her, by holding himself out as a person eligible to marry. She relied upon that in entering the marriage. Moreover, the Parties lived as a married couple for three years. They accumulated assets and liabilities together. They filed joint tax returns. They held themselves out as Husband and Wife to family and friends. Accordingly, the Wife argues, whether or not the marriage between the Parties is valid, the action should not be dismissed.

Dismissal pursuant to CPLR §3211(a)(1) lies when "a defense is founded upon documentary evidence." To prevail on a CPLR §3211(a)(1) motion, the moving party must show that "the documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim." Fontanetta v Doe, 73 AD3d 78, 83 (2d Dept. 2010) (internal quotation omitted). The documentary evidence must utterly refute plaintiff's allegations. AG Capital Funding Partners, L.P. v State Street Bank and Trust Co., 5 NY3d 582, 591 (2005); Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 (2002).

On a motion to dismiss pursuant to CPLR §3211(a)(7), the court must give the pleadings a liberal construction, accept the facts as alleged in the complaint as true, and accord plaintiffs the benefit of every possible favorable inference. Chanko v American Broadcasting Cos. Inc., 27 NY3d 46 (2016); AG Capital Funding Partners, L.P. v State Street Bank and Trust Co., 5 NY3d 582, 591 (2005); Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 (2002). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus." EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 (2005). See also Vasomedical, Inc. v. Barron, 137 AD3d 778 [2d Dept. 2016]; Zellner v. Odyl, LLC, 117 AD3d 1040, 1041 [2d Dept. 2014]).

When the moving party submits evidentiary material in support of his or her motion, "the criterion then becomes whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one" Quiroz v Zottola, 96 AD3d 1035, 1037 (2d Dept. 2012) quoting Sokol v Leader, 74 AD3d 1180, 1181-1182 (2010). A motion to dismiss pursuant to CPLR §3211(a)(7) must be denied "unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it." Id.

The Court finds that the Husband is not entitled to dismissal of the action based upon the documentary proof (CPLR §3211[a][1]). The certified documents submitted as exhibits to the motion prove only that there was a prior marriage. To prove that the prior marriage remained in existence at the time of the marriage between the Parties, the Husband submits only his affidavit. It is well settled that affidavits are not documentary proof. See Fontanetta v Doe, 73 AD3d at 85. In the absence of proof that the prior marriage remained in existence at the time of the Parties' marriage, the Court finds that the documentary evidence does not resolve all factual issues as a matter of law, and conclusively dispose of the plaintiff's claim. Id., at 83.

Turning to the alternate basis for dismissal — i.e., failure to state a claim (CPLR §3211[a][7]), the Court is required to accept the facts alleged by the Wife as true and to accord the Wife the benefit of every favorable inference. Here, the Wife alleges that the Parties were married to each other on February 27, 2016. The Wife is entitled to an inference that the marriage was a valid one. Although the Husband presents compelling evidence of a prior marriage, the Husband's affidavit, standing alone, is insufficient to eliminate any issue of fact as to whether the prior marriage remained in existence at the time of the Parties' marriage. "[A]ffidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [the plaintiff] has no cause of action." Sokol v Leader, 74 AD3d at 1182. Moreover, on a motion to dismiss pursuant to CPLR §3211(a)(7), "the burden never shifts to the nonmoving party to rebut a defense asserted by the moving party." Id., at 1181. Thus, the Wife was not required to demonstrate, for example, that the prior marriage had terminated by the time of the Parties' marriage, in order to survive the Husband's motion to dismiss.

That is not to say that the Wife will ultimately be able to sustain or prevail on her cause of action for divorce. Rather, the Court merely finds that the evidence was not sufficient to dispose of the cause of action in the context of a motion to dismiss. The matter may be more conclusively resolved on a full evidentiary record in the context of an application for summary judgment or at trial.

In any event, the Court finds that dismissal is not warranted, whether or not the Parties' marriage is ultimately declared to be void. As stated by the Appellate Division, Second Department, in DeLyra v DeLyra, and affirmed by the Court of Appeals:

While a spouse need not seek a declaration nullifying a void marriage (see, Maiorana v. Salerno, 133 N.Y.S.2d 521; Ray v. Ray, 193 Misc. 131, 83 N.Y.S.2d 126), nevertheless, the Legislature has provided that the parties to such a marriage can have it declared void during their lifetimes (see, Domestic Relations Law § 140[a]). Further, the Legislature has envisioned circumstances where it might be appropriate to grant economic relief to a spouse who has participated in a ceremonial marriage and has lived in a "marital" relationship, despite the fact that the parties' marriage was void and a valid marital relationship never existed between the parties. The Domestic Relations Law specifically provides that in an action to declare the nullity of a void marriage, a spouse may seek certain economic relief, including: (1) sequestration of the defendant's property, both real and personal, and whether tangible or intangible, within the State (Domestic Relations Law § 233), (2) a determination of any question as to the title to property arising between the parties and a direction, between the parties, concerning the possession of property (Domestic Relations Law § 234), (3) alimony (Domestic Relations Law § 236[A]) or maintenance (Domestic Relations Law § 236[B][6]), (4) counsel fees and expenses to carry on the action (Domestic Relations Law § 237), (5) expenses in enforcement proceedings (Domestic Relations Law § 238), and (6) post-judgment security for payments by the defendant or sequestration of the defendant's property (Domestic Relations Law § 243). Indeed, as noted by some commentators, "the availability of economic relief may be a strong inducement for bringing a `matrimonial action' to have [the] nullity [of the marriage] declared during the lifetimes of both parties"(1 Foster, Freed & Brandes, Law and the Family New York § 3.16 at 83 [2d ed 1987]).

DeLyra v. DeLyra, 141 AD2d 75, 79 (2d Dept. 1988), aff'd, 74 NY2d 872 (1989). In the case at bar, even if the Parties' marriage is deemed void, the Wife nonetheless has a claim for economic relief."