§ 141 — Action to annul marriage on ground of incurable mental illness for five years; procedure; support

New York § 141

• Jurisdiction: New York
• Law DOM: Domestic Relations
• Art. 9: Action to Annul a Marriage or Declare It Void

Text

§ 141. Action to annul marriage on ground of incurable mental illness\nfor five years; procedure; support. 1. If the marriage be annulled on\nthe ground of the mental illness of a spouse, the court may include in\nthe judgment an order providing for his or her suitable support, care\nand maintenance during life from the property or income of the other\nspouse. The court shall specify the amount of such support, care and\nmaintenance and, before rendering judgment, may exact security for such\nsupport, care and maintenance during life and shall order the filing and\nrecording of the instrument creating such security in the office of the\nclerk of the county in which the action is brought and the filing of two\ncertified copies thereof with the office of mental health at its Albany\noffice. The provisions of the judgment relating to support, care and\nmaintenance of the spouse with a mental illness during his or her life\nand to security therefor may be modified or amended at any time by the\ncourt upon due notice to the other party and other interested parties as\nthe court may direct and in proper case the value of the suitable\nsupport, care and maintenance to such spouse during the balance of his\nor her life based upon appropriate mortality tables may be adjudged and\ndetermined by the court in which the estate of a deceased spouse is\nbeing administered and the same may be recovered on behalf of the spouse\nwith a mental illness from the estate of the deceased spouse. If the\nspouse with a mental illness is maintained in an institution or\notherwise under the jurisdiction of the office of mental health, the\nsuitable support, care and maintenance as required in the judgment,\nunless otherwise directed by the court, shall be the charge established\nby the commissioner of mental health and such charge may be recovered in\nthe manner provided by law. Such amount shall continue to be so required\nfor the support of the spouse with a mental illness in the event of his\nor her removal from the custody of the office of mental health unless\nthereafter otherwise directed by the court. Any security exacted for the\nsuitable support, care and maintenance during life of the spouse with a\nmental illness shall be available to that spouse or any person on his or\nher behalf or to any person or agency providing support, care and\nmaintenance for such spouse in the event that the required payments for\nsuch support, care and maintenance have not been made and upon\napplication to the court the other spouse shall be ordered and directed\nto provide additional or further security.\n 2. Judgment annulling a marriage on such ground shall not be rendered\nuntil, in addition to any other proofs in the case, a thorough\nexamination of the alleged party with a mental illness shall have been\nmade by three physicians who are recognized authorities on mental\ndisease, to be appointed by the court, all of whom shall have agreed\nthat such party has an incurable mental illness and shall have so\nreported to the court. In such action, the testimony of a physician\nattached to a state hospital in the department of mental hygiene as to\ninformation which he acquired in attending a patient in a professional\ncapacity at such hospital, shall be taken before a referee appointed by\na judge of the court in which such action is pending if the court in its\ndiscretion shall determine that the distance such physician must travel\nto attend the trial would be a great inconvenience to him or the\nhospital, or that other sufficient reason exists for the appointment of\na referee for such purpose; provided, however, that any judge of such\ncourt at any time in his discretion, notwithstanding such deposition,\nmay order that a subpoena issue for the attendance and examination of\nsuch physician upon the trial of the action. In such case a copy of the\norder shall be served together with the subpoena.\n 3. Except as provided in paragraph five of this section, when the\nperson alleged to have an incurable mental illness is confined in a\nstate hospital for persons with a mental illness of this state, one, and\none only, of the physicians so appointed shall be a member of the\nresident medical staff of such hospital designated by the director\nthereof. If the alleged incurably person with a mental illness is not\nconfined in a state hospital for persons with a mental illness of this\nstate, one of the examining physicians named in pursuance of this\nsection shall be the director of a state hospital for persons with a\nmental illness if the alleged person with a mental illness is within\nthis state, or the superintendent or comparable officer of a state\nhospital for persons with a mental illness of the state or country where\nthe alleged person with a mental illness is present if the alleged\nperson with a mental illness is outside of this state. The report of\nsuch superintendent or comparable officer of a state hospital for\npersons with a mental illness of such other state or country shall not\nbe received in evidence or considered by the court unless he shall be a\nwell educated physician with at least five years of training and\nexperience in the care and treatment of persons suffering from mental\ndisorders.\n 4. When the plaintiff has been permitted to bring such action or\nprosecute the same as a poor person and the alleged incurably defendant\nwith a mental illness is present within this state, the court shall\nappoint three physicians who are examining physicians, as defined by\nsection 1.05 of the mental hygiene law, in the employment of the\ndepartment of mental hygiene. If the alleged person with a mental\nillness be outside of this state, the court may, upon proof thereof,\nappoint three examining physicians who are qualified under the laws or\nregulations of the foreign state or country where the alleged person\nwith a mental illness is present and who have qualifications comparable\nto those specified in section 1.05 of the mental hygiene law of the\nstate, provided, however, that one of such examining physicians shall be\nthe superintendent or comparable officer of a state hospital for persons\nwith a mental illness of such foreign state or country with\nqualifications as specified in paragraph four. Such examiners shall make\nthe examination of the alleged party with a mental illness present in\nthis state and file with the court a verified report of their findings\nand conclusions without costs to such plaintiff when the plaintiff is a\npoor person. Examination of an alleged party with a mental illness\npresent outside of this state shall be made at the expense of the\nplaintiff. Such report shall be received in evidence upon the trial of\nthe action without the personal appearance or testimony of such\nexaminers. If the court shall deem it necessary that the testimony of\nany such examiners be taken, the court may order the taking of such\ntestimony by deposition only. The examiners so appointed by the court\nmay be members of the resident medical staff of any state hospital,\nwhether or not the alleged person with a mental illness is being\nconfined there.\n