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St. Regis Mohawk Tribe Code

[1999]

SAINT REGIS MOHAWK TRIBAL MARRIAGE ACT OF 1995

 

BE IT ENACTED BY THE SAINT REGIS MOHAWK TRIBAL COUNCIL:


SECTION 1. TITLE AND CODIFICATION

This act shall be known as the Saint Regis Mohawk Tribal Marriage Act of 1995 and codified as Title Chapter of the Saint Regis Mohawk Code Annotated.


SECTION 2. PURPOSE

The purpose of this tribal council act is to enact tribal requirements for the making and dissolution of marriages on the Saint Regis Mohawk Reservation.


SECTION 3. DEFINITIONS

There are no words or phrases that require statutory definition as part of this enactment.


SECTION 4. MARRIAGES

A. Marriages valid by the laws of the country, state, county, or place where contracted shall be recognized by the Saint Regis Mohawk Tribe.

B. A person shall be joined in marriage when a license has been obtained for that purpose. The Fee for obtaining a marriage Licenses shall be $25.00 and payable to the Clerk of the Court. Marriage ceremonies may be performed through the Long House, by ordained clergymen, ministers, judges or other qualified individuals.

C. Persons under the age of eighteen (18) shall not marry without the consent of a parent or guardian having custody of the person.


SECTION 5. FILING FEES

Any person applying for dissolution of marriage or legal separation shall deposit with the Clerk of Court of the Saint Regis Mohawk Tribal Court fifty dollars ($50) at the time of filing the petition. If the defendant files cross complaint, the Court may require the defendant to pay the Tribal Court a fee of similar amount.


SECTION 6. PLEADINGS, CONTENTS, DEFENSE. JOINER OF PARTIES

A. A proceeding far dissolution or legal separation shall be entitled, "In Re the Marriage of ________________ and ________________ A custody support proceeding shall be entitled "In Re the (Custody) (Support) of ________________."

B. The initial pleading in all proceedings under this chapter shall be denominated a Petition. A responsive pleading shall be denominated a response.

C. The verified Petition in a proceeding for dissolution of marriage or legal separation shall allege that the marriage is irretrievably broken and shall state:

1. The name; age, occupation and address of each party and his length of domicile in this community.

2. The date of the marriage and the place at which it was performed.

3. The names, ages and addresses of all living children, natural or adopted, common to the parties and whether the wife is pregnant.

4. The information as to any agreements between the parties as support, custody,  and visitation of the children and maintenance of a spouse.

5. The relief sought.

D. Either or both parties to the marriage may initiate the proceedings under this Act.

E. The only defense to a Petition far the dissolution of a marriage or legal separation shall be that the marriage is not irretrievably broken.

F. The Court may join additional parties necessary for the exercise of its authority.


SECTION 7. DECREE OF LEGAL SEPARATION, FINDINGS NECESSARY

The Court shall enter a Decree of legal separation if it finds or provides for each of the following:

A. That one of the parties was domiciled in on the Saint Regis Mohawk Reservation at the time of the commencement of action.

B. The marriage is irretrievably broken.

C. The other party does not object to a decree of legal separation. If the other party objects to a decree of legal separation, the Court that directs that the pleadings be amended to attain a dissolution of the marriage, should one of the parties meet the required domicile for dissolution of marriage.

D. Within the Court jurisdiction, the Court has considered, approved or made provisions for:

1. child custody;

2. the support of any natural or adopted child common to the parties of the marriage entitled to support;

3. the maintenance of either spouse and;

4. the disposition of the property and debts.


SECTION 8. DISSOLUTION OF MARRIAGE, FINDINGS NECESSARY

The Court shall enter a Decree of dissolution of marriage if it finds each of the following:

A. That one of the parties, at the time of commencement of action, was domiciled on the Reservation of the Saint Regis Mohawk Reservation for ninety (90) days.

B. The marriage is irretrievably broken.

C. Within the Court jurisdiction, the Court has considered, approved, and made provisions for [missing text].


Section 9: TEMPORARY ORDER

A. In a court proceeding for dissolution of marriage, or legal separation; or maintenance or support following dissolution of marriage by a Court which lacked personal jurisdiction over the absent spouse, either party may move for temporary maintenance or temporary support of a natural or adopted child, common to the parties entitled to support. The motion shall be accompanied by an affidavit stating the facts for the motion and the amounts requested.

B. As part of a motion for temporary maintenance or support or by independent motion accompanied by affidavit, either party may request the Court to issue a preliminary injunction for relief such as:

1. Restraining any person from transferring, encumbering, concealing or disposing of any property except in the usual course of business or for the necessities of life, and, if so restrained, requiring him to notify the moving party of any proposed extraordinary expenditures made after the order

2. Enjoining a party from molesting, endangering, or disturbing the peace of the other party or any child.

3. Excluding a party from the family home or from the home of the other party upon a showing that a physical or emotional harm may otherwise result.

4. Enjoining a party from removing a child from the jurisdiction of the court.

5. Providing other injunctive relief proper in the circumstances.

C. The Court may issue a temporary restraining order without requiring notice to the other party only if it finds on the basis of moving affidavit or other evidence that irreparable injury will result to the moving party if no order is issued until the time, for responding has elapsed. No money shall be required unless the Court deems it appropriate.

D. On the basis of the proceeding and, in conformity with Sections 91 and 12, the Court may issue a preliminary injunction and an order for temporary maintenance or support in amounts and terms deemed just and proper in the circumstances.

E. A temporary order or preliminary injunction:

1. Does not prejudice the right of the parties or any child which are to be adjudicated at the hearings in the proceedings.

2. May be revoked or modified before a final decree on showing by affidavit of the facts necessary for revocation or modification of a final decree.

3. Terminates when the final decree is entered or when the Petition for Dissolution of Marriage or Legal Separation is dismissed.


SECTION 10. EFFECT OF SEPARATION AGREEMENT

A. To promote amicable settlement of disputes between parties to a marriage from their separation or the dissolution of their marriage, the parties may enter into a written separation agreement containing provisions for disposition of any property owned by either of them, maintenance of either of them, and support, custody and visitation of their children.

B. In a proceeding for dissolution of marriage or for legal separation, the terms of the separation agreement, except those providing for the support, custody and visitation of the -children, are binding upon the Court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the Court, that the agreement is unfair. If the Court finds the separation agreement unfair as to the disposition of property or maintenance, the Court may request the parties to submit a revised separation agreement or may make orders for the disposition of property or maintenance:

C. If the Court finds that the separation agreement is not unfair as to the disposition of property and maintenance, and that it is reasonable as to support, custody and visitations of the children, the separation agreement shall be set forth or incorporated by reference in the Decree of Dissolution of Marriage or Legal Separation and the parties shall be ordered to perform the terms. If the separation agreement provides that its terms shall not be set forth in the decree, the decree shall identify the separation agreement as incorporated by reference and state that the Court has found the terms as to property disposition and maintenance not unfair and the terms as to support, custody and visiting of the children reasonable.

D. Terms of the agreement set forth or incorporated by reference in the decree of divorce shaft be enforceable by all remedies available for enforcement of a judgment, including contempt.


SECTION 11. DISPOSITION OF PROPERTY

In a proceeding for dissolution of marriage, or for legal separation, or in a proceeding for disposition of property following dissolution of marriage by a Court which previously lacked personal jurisdiction over the absent spouse, or previously lacked jurisdiction to dispose of the property, the Court shall assign to each spouse his or her sole and separate property. The Court shall divide the community, joint tenancy and other property held in common equitably, though not necessarily in kind, without regard to marital misconduct. For the purpose of this Section only, property acquired by either spouse outside the community shall be deemed to be individual property.

Nothing in this section shall prevent the Court from considering excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common.


SECTION 12. MAINTENANCE. COMPUTATION FACTORS

A. In a proceeding for dissolution of marriage or legal separation, or a proceeding for maintenance following dissolution of marriage by a Court which lacked personal jurisdiction over the absent spouse, the Court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance:

1. Lacks sufficient property, including property apportioned to him or her to  provide for his or her reasonable needs; and

2. Is unable to support himself or herself through appropriate employment or is the custodian of a child whose age or condition is such that the custodian should not be required to seek employment outside the home.

B. The maintenance order shall be in such amounts and far such period of time as the Court deems just, without regard to marital misconduct, and after considering all relevant factors, including:

1. The financial resources of the party seeking maintenance, including marital  property, apportioned to him or her and his or her ability to meet his or her  needs independently.

2. The time necessary to acquire sufficient education or training or enable the  party seeking maintenance to find appropriate employment;

3. The standard of living established during the marriage.

4. The duration of the marriage.

5. The age and the physical condition of the spouse seeking maintenance.

6. The ability of the spouse from whom maintenance is sought to meet his or her  needs while meeting those of the spouse seeking maintenance.

7. Excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common.


SECTION 13. DECREE, RESTORATION OF MAIDEN NAME

A. A Decree of Dissolution of Marriage or of Legal Separation is final when entered, subject to the right of appeal. An appeal from the Decree of Dissolution that does not challenge the finding that the marriage is irretrievably broken does not delay the finality of the decree provision which dissolves the marriage beyond the time for appealing from that provision, and either of the parties may remarry pending appeal. An order directing payment of money for support or maintenance of spouse or the minor child or children, shall not be suspended or execution stayed pending that appeal.

B. The Court shall upon hearing within six (6) months after the entry of a Decree of Legal Separation, convert the decree to a Decree of Dissolution of Marriage.

C. The Court shall, upon motion of either party after expiration of six (6) months from the entry of a Decree of Legal Separation, convert the decree to a Decree of Dissolution of Marriage.

D. Upon request by a wife whose marriage is dissolved or declared invalid, the Court shall order her maiden name or former name restored.


SECTION 14. MARRIAGE ACT ADMINISTRATION

The Judicial Branch of the Saint Regis Mohawk Tribe is empowered to issue reasonable rules and procedures to administer the provision of this act. All rules and procedures issued shall be of public record.


SECTION 15. PROVISIONS AS CUMULATIVE

The provisions of this act shall be cumulative to existing law.


SECTION 16. REPEAL PROVISIONS AND CONFORMING AMENDMENTS

No provisions of law are expressly repealed by this enactment.

No current or previous provisions of law are conformed by enactment.


SECTION 17. SEVERABILITY

The provisions of this act are severable and if any part or provision shall be held void by any court of competent jurisdiction, the decision of the court so holding shall not affect or impair any of the remaining parts or provisions of this act.

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