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Keywords

discoverymotiondivorcecommon law
plaintiffdiscoverymotioncommon law

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Cross v. Cross, 112 A.D.2d 62, 491 N.Y.S.2d 353

Facts

Regina Cross and Christopher Cross lived together in New York from 1966 until March 1983, presenting themselves as husband and wife. Regina claimed a valid common law marriage recognized by five states, while Christopher had a prior marriage that lasted until 1979. The dispute arose when Regina sought a divorce and temporary relief, leading to a series of court motions and orders regarding maintenance, child support, and the declaration of marital status.

Regina alleged a valid common law marriage between the parties which she claims was recognized by five states.

Issue

Whether the Special Term erred in granting Regina's motion for pendente lite relief given her failure to show a reasonable probability of success in proving the existence of a common law marriage.

The main issue presented is whether Special Term erred in granting plaintiff's motion for pendente lite relief.

Rule

A putative wife must support her application for temporary relief with substantial proof of the existence of their marital relationship, demonstrating a reasonable probability of success in proving a valid marriage.

Domestic Relation Law 236, Par B, provides for awards of temporary maintenance in matrimonial actions seeking the declaration of the validity of a marriage.

Analysis

The court found that Regina's evidence of a common law marriage was insufficient, as she did not provide substantial proof, such as a declaration or written agreement, to support her claim. The court noted that Christopher's sworn statement regarding Regina's alleged subsisting marriage to another man further weakened her position. Therefore, the court concluded that Regina did not meet the burden required for an award of temporary maintenance.

Regina alleged in support of her application that she and Christopher lived together in New York from 1966 until March, 1983; held themselves out as husband and wife, and visited five states which recognize common law marriage.

Conclusion

The appellate court reversed the lower court's orders granting temporary maintenance and child support to Regina, denying her motion for pendente lite relief. Additionally, the court granted a protective order to stay discovery of financial data until the marital status was determined.

Reversed with directions.

Who won?

Christopher Cross prevailed in the case as the appellate court found that Regina did not provide sufficient evidence to support her claim of a common law marriage, which was necessary for her to receive temporary maintenance.

The appellate court held that: (1) putative wife was not entitled to award of temporary maintenance, and (2) protective order was to be granted staying discovery of financial data until determination of marital status was made.

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