N.Y. Domestic Relations Law § 141: Action to annul marriage on ground of incurable mental illness for five years; procedure; support

§ 141. Action to annul marriage on ground of incurable mental illness

for five years; procedure; support. 1. If the marriage be annulled on

the ground of the mental illness of a spouse, the court may include in

the judgment an order providing for his or her suitable support, care

and maintenance during life from the property or income of the other

spouse. The court shall specify the amount of such support, care and

maintenance and, before rendering judgment, may exact security for such

support, care and maintenance during life and shall order the filing and

recording of the instrument creating such security in the office of the

clerk of the county in which the action is brought and the filing of two

certified copies thereof with the office of mental health at its Albany

office. The provisions of the judgment relating to support, care and

maintenance of the spouse with a mental illness during his or her life

and to security therefor may be modified or amended at any time by the

court upon due notice to the other party and other interested parties as

the court may direct and in proper case the value of the suitable

support, care and maintenance to such spouse during the balance of his

or her life based upon appropriate mortality tables may be adjudged and

determined by the court in which the estate of a deceased spouse is

being administered and the same may be recovered on behalf of the spouse

with a mental illness from the estate of the deceased spouse. If the

spouse with a mental illness is maintained in an institution or

otherwise under the jurisdiction of the office of mental health, the

suitable support, care and maintenance as required in the judgment,

unless otherwise directed by the court, shall be the charge established

by the commissioner of mental health and such charge may be recovered in

the manner provided by law. Such amount shall continue to be so required

for the support of the spouse with a mental illness in the event of his

or her removal from the custody of the office of mental health unless

thereafter otherwise directed by the court. Any security exacted for the

suitable support, care and maintenance during life of the spouse with a

mental illness shall be available to that spouse or any person on his or

her behalf or to any person or agency providing support, care and

maintenance for such spouse in the event that the required payments for

such support, care and maintenance have not been made and upon

application to the court the other spouse shall be ordered and directed

to provide additional or further security.

2. Judgment annulling a marriage on such ground shall not be rendered

until, in addition to any other proofs in the case, a thorough

examination of the alleged party with a mental illness shall have been

made by three physicians who are recognized authorities on mental

disease, to be appointed by the court, all of whom shall have agreed

that such party has an incurable mental illness and shall have so

reported to the court. In such action, the testimony of a physician

attached to a state hospital in the department of mental hygiene as to

information which he acquired in attending a patient in a professional

capacity at such hospital, shall be taken before a referee appointed by

a judge of the court in which such action is pending if the court in its

discretion shall determine that the distance such physician must travel

to attend the trial would be a great inconvenience to him or the

hospital, or that other sufficient reason exists for the appointment of

a referee for such purpose; provided, however, that any judge of such

court at any time in his discretion, notwithstanding such deposition,

may order that a subpoena issue for the attendance and examination of

such physician upon the trial of the action. In such case a copy of the

order shall be served together with the subpoena.

3. Except as provided in paragraph five of this section, when the

person alleged to have an incurable mental illness is confined in a

state hospital for persons with a mental illness of this state, one, and

one only, of the physicians so appointed shall be a member of the

resident medical staff of such hospital designated by the director

thereof. If the alleged incurably person with a mental illness is not

confined in a state hospital for persons with a mental illness of this

state, one of the examining physicians named in pursuance of this

section shall be the director of a state hospital for persons with a

mental illness if the alleged person with a mental illness is within

this state, or the superintendent or comparable officer of a state

hospital for persons with a mental illness of the state or country where

the alleged person with a mental illness is present if the alleged

person with a mental illness is outside of this state. The report of

such superintendent or comparable officer of a state hospital for

persons with a mental illness of such other state or country shall not

be received in evidence or considered by the court unless he shall be a

well educated physician with at least five years of training and

experience in the care and treatment of persons suffering from mental

disorders.

4. When the plaintiff has been permitted to bring such action or

prosecute the same as a poor person and the alleged incurably defendant

with a mental illness is present within this state, the court shall

appoint three physicians who are examining physicians, as defined by

section 1.05 of the mental hygiene law, in the employment of the

department of mental hygiene. If the alleged person with a mental

illness be outside of this state, the court may, upon proof thereof,

appoint three examining physicians who are qualified under the laws or

regulations of the foreign state or country where the alleged person

with a mental illness is present and who have qualifications comparable

to those specified in section 1.05 of the mental hygiene law of the

state, provided, however, that one of such examining physicians shall be

the superintendent or comparable officer of a state hospital for persons

with a mental illness of such foreign state or country with

qualifications as specified in paragraph four. Such examiners shall make

the examination of the alleged party with a mental illness present in

this state and file with the court a verified report of their findings

and conclusions without costs to such plaintiff when the plaintiff is a

poor person. Examination of an alleged party with a mental illness

present outside of this state shall be made at the expense of the

plaintiff. Such report shall be received in evidence upon the trial of

the action without the personal appearance or testimony of such

examiners. If the court shall deem it necessary that the testimony of

any such examiners be taken, the court may order the taking of such

testimony by deposition only. The examiners so appointed by the court

may be members of the resident medical staff of any state hospital,

whether or not the alleged person with a mental illness is being

confined there.