SPALTER v. SPALTER (2024)

Order, Supreme Court, New York County (Michael L. Katz, J.), entered June 23, 2023, which denied defendant's CPLR 3211 and Domestic Relations Law § 10 motion to dismiss this divorce action and granted plaintiff's cross-motion declaring the parties’ marriage valid, unanimously affirmed, without costs.

The parties took part in a religious wedding ceremony officiated by a rabbi under a chuppah, with 29 guests and featuring traditional Jewish rites and blessings.  They signed a ketubah [Jewish wedding contract] in the presence of two witnesses, a separate document that stated they were entering into a “marriage that is binding under Jewish law” but not “legally recognized” under New York law and an arbitration agreement referring to them as “husband-to-be” and “wife-to-be,” in which they authorized the Beth Din to preside over marital disputes.  However, they never obtained a civil marriage license, and according to defendant, held themselves out as single, lived separate lives and only entered into the religious marriage to facilitate their children's acceptance into day schools and the family into synagogues.  At the time of the ceremony the parties had two children together, and now have four, three of which are children with special needs.

The motion court properly determined that the parties’ marriage is valid (see Domestic Relations Law §§ 10, 12, 25), as defendant failed to overcome New York's “strong presumption favoring the validity of ․ marriage” (Matter of McDonald, 276 A.D.2d 631, 632, 716 N.Y.S.2d 312 [2d Dept. 2000];  see also Fisher v. Fisher, 250 N.Y. 313, 316–317, 165 N.E. 460 [1929]).  This strong presumption of the validity of marriage is even greater where, as here, the legitimacy of children is concerned (see Amsellem v. Amsellem, 189 Misc.2d 27, 29, 730 N.Y.S.2d 212 [Sup. Ct., Nassau County 2001], citing Hynes v. McDermott, 91 N.Y. 451 [1883]).

Domestic Relations Law § 12, provides, as relevant, that “[n]o particular form or ceremony is required when a marriage is solemnized as herein provided by a clergyman” if the parties “solemnly declare” in the “presence” of a clergyman and at least one other witness that “they take each other as spouses.”  Although Domestic Relations Law § 13 requires all persons intending to be married in New York to obtain a marriage license, § 25 provides that “[n]othing in [Domestic Relations Law article 3] shall be construed to render void by reason of a failure to procure a marriage license any marriage solemnized between persons of full age” (see e.g. Jayaram v. Jayaram, 205 A.D.3d 612, 612–613, 169 N.Y.S.3d 609 [1st Dept. 2022];  see also Mackoff v. Bleumke–Mackoff, 222 A.D.3d 67, 200 N.Y.S.3d 396, 2023 N.Y. Slip Op. 05721, *3 [2d Dept. 2023];  Yusupov v. Baraev, 197 A.D.3d 538, 539, 152 N.Y.S.3d 497 [2d Dept. 2021];  Matter of Whitney, 2007 WL 7730374 [Sur. Ct., N.Y. County 2007];  Persad v. Balram, 187 Misc.2d 711, 716, 724 N.Y.S.2d 560 [Sup. Ct., Queens County 2001]).  As the parties’ marriage was solemnized by a rabbi with witnesses in a traditional Jewish ceremony, their failure to obtain a marriage license does not invalidate the marriage (cf.  Devorah H. v. Steven S., 49 Misc.3d 630, 12 N.Y.S.3d 858 [Sup. Ct., N.Y. County 2015]).

That the parties may not have intended to have their marriage legally recognized under New York law is not dispositive because “while marriage is a contract between two consenting individuals, it is a special status governed by laws and the State and not determined by those entering the contract” (S.F. v. J.S., 80 Misc.3d 1218[A], 2023 N.Y. Slip Op. 51033[U], *4, 2023 WL 6382637 [Sup. Ct., N.Y. County 2023];  see also Alan D. Scheinkman, Prac Commentaries, McKinney's Cons Laws of NY, Domestic Relations Law § 10 [“marriage is more than a mere contract;  once the contract of marriage is executed, a relationship is created between the parties which is regulated by law”]).

Although Domestic Relations Law § 10 clearly requires that both parties consent to the marriage, that requirement was met here.  The record shows that, while the parties signed a document that stated that their marriage was not “legally recognized” under New York law, the parties consented to the marriage, especially in light of their acknowledgment in that same document that they were “entering into a marriage that is binding under Jewish law.”

Even though defendant claims that plaintiff has listed herself as unmarried in her tax returns, this does not prevent her from arguing that the parties were married.  The proposition that “a party to litigation may not take a position contrary to a position taken in an income tax return” (Mahoney–Buntzman v. Buntzman, 12 N.Y.3d 415, 422, 881 N.Y.S.2d 369, 909 N.E.2d 62 [2009]), does not apply to the question of marital status, which is a mixed question of law and fact (see S.F. v. J.S., 80 Misc.3d 1218[A], *9;  Matter of Truong Dinh Tran, 2014 N.Y. Slip Op. 31338[U], 2014 WL 2216162 [Sur. Ct., N.Y. County 2014], affd 126 A.D.3d 544, 2 N.Y.S.3d 901 [1st Dept. 2015];  see also Persad v. Balram, 187 Misc.2d at 717, 724 N.Y.S.2d 560).

We have considered defendant's remaining arguments and find them unavailing.