New York Domestic Relations Law Fall 2020

A guide to Family Law In New York

  • Joy Rosenthal (CUNY School of Law)

Welcome DRL Students at CUNY School of Law!

This is our main text for our class, and will be a resource you use all semester.

Remember - this is an overview course - we are looking at many aspects of New York family law, and, as such, we are thinking broadly (rather than going deeply into any one area).  

As we progress through the semester, think about how the various aspects of family law interact with one another, and how the law evolves to stay up to date with changes of societal norms.  How might a particular law have a disparate impact on people in one socio-economic group or another?  The LGBT+ community? BiPOC? Unmarried folks?  etc. 

The course (and therefore, this casebook), is designed to give you a sense of the scope of family law, an introduction to its basic concepts, and familiarity with how each of its aspects work together.

There will be opportunities for reflection and reaction throughout the class - I look forward to hearing your thoughts!

Joy Rosenthal

August 2020

 

3 Class 3 - Different Processes, Different Courts - September 8 3 Class 3 - Different Processes, Different Courts - September 8

3.1 Process Options (Handout for Clients) 3.1 Process Options (Handout for Clients)

for Getting Divorced, by Joy S Rosenthal

 

 

 

 

 

 

 

Process Options

There is a theory from psychotherapy that families are systems. Each person is connected to the others in many different ways – and we each have different roles to play and different expectations of the others.  We act in predictable patterns of behavior, which allows us to rely on the others. By dividing responsibilities and being predictable, the family unit can get more accomplished than if each member was acting alone.

When couples split up, they must go through a family system reorganization. They must redefine their roles and establish new boundaries and expectations – both of themselves and of each other.  The simplest routines have to be re-thought, and new routines have to be established.  One household becomes two, and the relationship goes from being very intimate to something more like a business partnership. This can be a bumpy road.  

Divorce is really the process of reorganizing the family system.  

How do you begin to do this?  There are a number of decisions to make and problems to solve.  

One of the first questions to ask after deciding to split up, then, is who will make these decisions and how will you approach this? Mediation and collaborative process allow you to engage in difficult conversations around these issues to clarify your expectations of each other.   

What do you need to decide?

Some of the most immediate decisions might be:

  • When and how will you tell your family and friends about the separation?
  • When and how will you tell your children about the separation?
  • Who will move out?  When?  

 

The actual divorce settlement agreement will need to address a few general areas:

  1. How will you divide up property that you own together? This includes homes, retirement plans, bank and brokerage accounts, physical items, businesses, etc.  A key part of this is determining which property is separate and which is joint, or marital.
  2. Will one person pay spousal support to the other?  How will each partner support themselves in the future?  Does one person need help to transition into being fully self-supportive? If so, how much help for how long?

 

If you have children, there are two other areas that need to be addressed:

 

  1. The parenting plan – How will you make decisions about the children?  Where will the children spend their time?  How will they spend holidays?  School vacations? Summers?

 

  1. Child support – How will you each support the children financially? How will “add-on” expenses, such childcare, activities and health costs, be divided?

 

What process will you use to make these decisions?

How you make these decisions – whether you and your ex talk together, whether you ask lawyers to negotiate for you, or you ask a judge to decide – may have a huge impact on your experience of the divorce and your continuing relationship with your ex.   

The goal in mediation and collaborative process is for the partners to work together to develop a plan that will meet the most fundamental needs of each partner and their children.  The approach in both mediation and collaborative law is non-adversarial. You speak for yourself during negotiations and deal directly with your spouse. Both approaches allow you and your partner to devise your own agreement based upon your unique situation, without having it be imposed by the court. Remember, the judge may know what the "norms" are, but s/he does not know you, your spouse or your children. You are the experts on your own situation. 

Divorce Mediation

You and your ex meet with a trained divorce mediator who acts as a neutral guide to assist you in identifying and working through the issues that will go into a divorce settlement agreement.  The mediator can share legal information about relevant family law, although they cannot provide legal advice.  This will take a series of meetings, which usually are 1½ to 2 hours in length.  The mediator may recommend input from a neutral financial professional or child specialist. Once the decisions are made, the mediator will write up a proposed settlement agreement, which we recommend that you go over with a mediation-friendly reviewing attorney. The final settlement agreement can then be filed in court, together with a suite of forms the court requires to get legally divorced (sometimes referred to as “uncontested divorce papers”). 

Best if:

•   you have no problem being totally transparent about your financial situation

•   you trust that your ex is being transparent about their financial situation

•   each partner can stand up for him/herself and speak frankly

•   there is a relative balance of power in the relationship

•   you both want to maintain a good working relationship (i.e. if you have children)

•   you want the terms of their divorce to be private

•   you both are both willing and able to give the process the time and attention it requires

 

Advantages: 

•   relatively inexpensive

•   the partners control the timing, tone and pace of the meetings 

•   the tone of the process is likely to be more cooperative and non-adversarial

•   designed to help generate creative solutions

•   it is geared toward self-determination


Disadvantages:

•   not appropriate if 

o   you don’t both agree to mediate

o   it is too difficult for you and your ex to sit in the room together

o   one partner is hiding assets

o   one partner controls the other, or if there is domestic violence

o   either partner cannot make clear decisions due to mental or physical illness, or addiction

•       the mediator cannot give legal advice

•   the mediator cannot advocate for either partner

 


Collaborative Practice (aka Collaborative Law, Collaborative Divorce)

You and your ex each have specially trained collaborative attorneys and you negotiate directly but with your collaborative attorneys in the room, through a series of 4-way meetings.  The lawyers’ role is to hold the ‘mediative consciousness’ of the meetings, to coach the parties on negotiation, and, when necessary, to advocate on their client’s behalf.  The collaborative attorneys may recommend input from a neutral financial professional or child specialist. The key here is that if the process falls through, each partner must get a different attorney to represent them in court. In other words, the parties agree from the beginning that they will not go to court or threaten to go to court in this process. 

Best if:

•   you have no problem being totally transparent about your financial situation

•   you trust that your ex is being transparent about his or her financial situation

•   you both want to maintain a good working relationship (i.e. if you have children)

 

Advantages: 

•   attorneys and parties work together in the four-way meetings

•   you both control the timing and tone of the meetings

•   it is geared toward self-determination

•   may provide for more flexible or creative outcomes 

•   attorney's presence helps to make up for power imbalances

•   designed to help generate creative solutions

•   the process is non-adversarial, so you and your ex can concentrate on what is best for the children

•   still relatively inexpensive compared to litigation


Disadvantages:

•   Both parties must agree to use special collaborative attorneys

•   May not be appropriate if

o   It is too emotionally difficult for you and your ex to work together

o   one partner is hiding assets

o   one partner controls the other, or if there is domestic violence

o   either partner cannot make clear decisions due to mental or physical illness, or addiction

•   More expensive than mediation

•   Each side has to start over with a new attorney if the process falls through

Contested divorce

This is the most "traditional" form of divorce, where each side has an attorney whose job is to zealously advocate for their client. This means that your ex’s attorney may see their role as helping your ex get the best deal possible, often by exposing your weaknesses, in a win/lose manner. This can be divisive to the family system, and can severely polarize ex-partners. 

Most divorces don't actually go to trial, but they may go through extensive discovery processes. This can actually be one of the longest, most expensive, and most emotionally painful parts of the process.   The lawyers often negotiate directly with each other, often with less input from the clients. 

A contested divorce may be necessary if you think that your partner is being dishonest about her or his assets and income. It may also be necessary or preferable if there is an imbalance of power, or if there is any threat of physical violence. 

Best for:

• couples where there is an imbalance of power

• couples that have big disagreements over the dividing of assets

• where one person appears to be hiding assets 

Advantages: 

• may be necessary if one partner is secretive or dishonest

• may be necessary if there is really a question about the fitness of one parent

• you will have your attorney guide you at each step


Disadvantages:

• Expensive - may cost tens of thousands of dollars

• may be the most contentious - and therefore the most stressful on the partners and on the children

• may drag on for months or even years

• much of the assets partners are fighting over will end up in the attorneys' pockets

 

Mediation

Collaborative Process

Contested

Parties meet directly

Parties meet directly

Lawyers confer

3-way discussions

4-way discussions

Discussions between lawyers

Clients control tone & timing

Clients control tone & timing

Lawyers control tone 

Financial info shared on honor system

Financial info shared on honor system

Requires sworn statements of net worth

Clients make decisions

Clients make decisions

Lawyers make recommendations for settlement or judge makes decisions

Clients consult with attys during or at end of process

Clients consult with attys during process

Clients consult with attys during process

Cooperative

Cooperative

May be adversarial

Least expensive

Less expensive

Most expensive

The process you use will have a big impact on your experience of divorce.  It’s a good idea to take the time to figure out which process will be the best fit for your situation.

If you have questions, or for more information, please feel free to give us a call.  We look forward to working with you!

 

For more information, there are several good Web sites:

 

fdmcgny.org – This is the website for the Family and Divorce Mediation Council of Greater New York, a consortium of NYC divorce mediators

 

nysmediate.org - This is the website for the NY State Council on Divorce Mediation, a consortium of NYS divorce mediators

 

www.collaborativepractice.com – This is the website for the International Academy of Collaborative Professionals

 

divorcenet.com - general information about divorce, published by Nolo Press.

 

divorcehq.com - general information, but a little more commercial

 

And, of course, our website:

www.joyrosenthal.com - 

 

3.2 Description of the Difference Between Family Court and Supreme Court 3.2 Description of the Difference Between Family Court and Supreme Court

Excerpt from An Argument for Joint Custody as an Option for All Family Court Mediation Program Participants by Joy S. Rosenthal, 11 N.Y. City L. Rev. 127

I. The New York City Family Courts
A. Overview
 
As part of the Unified Court System, each county in New York State has its own family court.5 New York City (“NYC”) is made up of five counties (or boroughs). While some programs and administrative decisions affect the New York City Family Court System as a whole, each courthouse retains its own culture.
Family Courts have jurisdiction over cases involving child support, custody, visitation, abuse or neglect, foster care, terminations of parental rights, family offense (orders of protection), parent-teen (Persons in Need of Supervision, or PINS) and juvenile delinquency.6 Divorce, separation and annulments of marriages are heard in New York State Supreme Court, which is also a trial level court.7 Thus, parents who are unmarried must litigate disputes regarding their children in Family Court, while married parents must litigate divorces (and disputes regarding their children) in Supreme Court.
Family Court and Supreme Court are on the same judicial level. Cases decided in either Court can be appealed to the Appellate *131 Division.8 However, there is a huge discrepancy between the two courts. Family Court is a poor person's court.9 Most Supreme Court litigants tend to be middle class and a higher percentage of them are white, whereas Family Court litigants are overwhelmingly people of color.10 Nearly all litigants in Supreme Court have private attorneys, while in Family Court most litigants appear pro se or with court appointed attorneys.11 Family Courts are terribly under-funded, thus Family Court judges hear many more cases than do Supreme Court judges.12 Although filings have increased steadily,13 the number of Family Court judges in New York City (47) has not changed since 1991.14
Because the Family Court does not have jurisdiction over matrimonial matters in New York State, parties who come to Family Court for custody and visitation disputes are, by definition, unmarried.15 Some are former spouses seeking to modify a prior child  *132 custody order, which may have been created in Supreme Court when they divorced. Most, however, had never been married, or at least not to each other. Occasionally, a custody case might involve a grandmother and a parent, or be between same-sex couples, but most often the litigants are a man and a woman who are the legal parents of the child. I have mediated cases where both parents were in their teens and still lived with their mothers. I have mediated other cases where one party was still married to someone else, yet had children with the other party. In some cases, the parents were divorced and had worked out an arrangement, but needed a modification of the divorce order to adjust child support arrangements.16 In my experience, parents in the Court Mediation Program have been diverse in educational background, income level, age, race and ethnicity.
The conditions in Family Court are horrendous.17 I have always felt that working there was to be on the front lines of crisis with residents of New York's poorest communities. This is reflected in the physical overcrowding, how litigants are treated, and in the low expectations of professionals toward its litigants.18
It is well documented that most people who appear in New  *133 York City's Family Courts are poor people of color.19 According to the New York State Unified Court System's Office of the Deputy Chief Administrative Judge for Justice Initiatives (DCAJ-JI), 84% of self-represented litigants in New York Family and Housing Courts are people of color, and 83% reported a household income of under $30,000 and 57% reported household income of under $20,000.20 Statistics of racial disparities are well documented for the foster care system, and the racial make-up of other types of cases heard in Family Court, including custody and visitation cases, seems similar. A study done in 1998 showed that:
In New York City, African American children were more than twice as likely as white children to be taken away from their parents following a confirmed report of abuse or neglect . . . one of every 22 African-American [sic] children citywide was in foster care, compared with one of every 59 Latino children - and only one of 385 white children . . . one of every 10 children in Central Harlem was in foster care . . . one of every four African American foster children remained in foster care for five years or more. Only one in ten white children remained as long.21
Professor Martin Guggenheim, under whom I worked at the New York University School of Law's Family Defense Clinic, has described it this way:
One cannot address the subject of children in foster care in the United States, and especially in New York City, without staring at a shocking truth of a system that a veritable Martian couldn't help but recognize to be apartheid. In fact, my most memorable story about the practice of law in the United States was told to me by Bob Schwartz, who is the head of the juvenile law center in Philadelphia. He had made a trip to South Africa during the apartheid era, and the trip was reciprocated with a person from South Africa coming to Philadelphia to visit the juvenile court there. And, after spending a day he turned to Bob and said,  *134 “[w]here's the white juvenile court?”22
Assemblyman Roger Green, addressing the New York State Assembly, proposed that the over-representation of African-American children in foster care was due to biases that occur at the point caseworkers first begin to investigate, and that racism and class bias continue to influence perceptions, expectations, and service delivery as children wend their ways through the child welfare system.23

 

Joy S. Rosenthal, Esq., An Argument for Joint Custody As an Option for All Family Court Mediation Program Participants, 11 N.Y. City L. Rev. 127, 130–34 (2007)

3.3 Mediation & Collaborative Law 3.3 Mediation & Collaborative Law

3.3.1 Mediation Timeline 3.3.1 Mediation Timeline

 

 

 

 

 

 

Mediation Process

 

1.     STAGE ONE: Mediation meetings – mediator is neutral 

a.     Usually 4-8 meetings, each 1 ½ - 2 hours, spread out over time. 

b.     Plan topics to be discussed, gather information needed to make informed decisions, explore options, make decisions together. 

c.     May use financial neutrals, child specialists, divorce coaches, consulting attorneys. 

 

 

2.     STAGE TWO:  Drafting of Separation Agreement – neutral attorney-mediator 

a.     Usually takes several weeks for first draft.

b.     Drafting attorney drafts a formal, written agreement based on the understandings reached in mediation (Stage One).

c.     Clients review and make comments/changes.

d.     May take several drafts before every detail is agreed upon.

e.     Clients take agreement to reviewing attorneys, who go over it in detail and provide each client with independent review and legal advice.

 

3.     STAGE THREE:  Divorce papers/Court filing – mediator or one of the reviewing attorneys

a.     We prepare the papers necessary for filing the divorce in New York State courts, incorporating terms agreed upon in mediation, consistent with agreement.

b.     Signing.

c.     Court will usually take 3-6 months to process.

d.     We send court-certified copy of judgment of divorce to both parties.

 

3.3.2. Description of Divorce Mediation Process

from Nolo.com

Description of Divorce Mediation Process

3.3.3. Introduction to Collaborative Practice

International Academy of Collaborative Professionals

Introduction to Collaborative Practice

3.3.4 Lawyer as third-party neutral (excerpt) 3.3.4 Lawyer as third-party neutral (excerpt)

NYS Bar Association - Ethics Opinion 1178

New York State Bar Association

Committee on Professional Ethics

Opinion 1178 (12/13/2019)
Modifies NY State 678 (1996)
Topic:  Lawyer as third-party neutral
Digest:  A lawyer-mediator engaged in providing third-party neutral services is subject to Rule 2.4 but not the Rules that govern the representation of clients.  As such, the lawyer-mediator is generally free to conduct the mediation in the way the lawyer thinks best, and to charge whatever fee may be appropriate, provided always that the lawyer fully discloses to the parties that the lawyer is acting as a disinterested mediator and not as counsel to any party, including the consequences of that difference.  In the event of an agreement, the lawyer-mediator may memorialize the parties’ understanding in a document and may appear as counsel for one party (but not both) in filing a divorce action if the other party gives informed consent confirmed in writing.

3.4 Contested, Uncontested Divorce 3.4 Contested, Uncontested Divorce

DRL §§ 211, 232, 236-B (4)

3.4.1. Scene from "Intolerable Cruelty"

Scene from "Intolerable Cruelty"

3.4.2 Selected Statutes Governing Divorce Proceedings 3.4.2 Selected Statutes Governing Divorce Proceedings

DRL § 211. Pleadings, proof and motions
A matrimonial action shall be commenced by the filing of a summons with the notice designated in [§ 232} of this chapter, or a summons and verified complaint as provided in [§ 304] of the [CPLR].
 
A final judgment shall be entered by default for want of appearance or pleading, or by consent, only upon competent oral proof or upon written proof that may be considered on a motion for summary judgment. Where a complaint or counterclaim in an action for divorce or separation charges adultery, the answer or reply thereto may be made without verifying it, except that an answer containing a counterclaim must be verified as to that counterclaim. All other pleadings in a matrimonial action shall be verified.
 
DRL § 232. Notice of nature of matrimonial action; proof of service

a. In an action to annul a marriage or for divorce or for separation, if the complaint is not personally served with the summons, the summons shall have legibly written or printed upon the face thereof: “Action to annul a marriage”, “Action to declare the nullity of a void marriage”, “Action for a divorce”, or “Action for a separation”, as the case may be, and shall specify the nature of any ancillary relief demanded.
 
A judgment shall not be rendered in favor of the plaintiff upon the defendant's default in appearing or pleading, unless either
 
(1) the summons and a copy of the complaint were personally delivered to the defendant; or
(2) the copy of the summons
(a) personally delivered to the defendant, or
(b) served on the defendant pursuant to an order directing the method of service of the summons in accordance with the provisions of [§ 308] or [§ 315] of the [CPLR], shall contain such notice.
b. An affidavit...proving service shall state affirmatively in the body thereof that the required notice was written or printed on the face of the copy of the summons delivered to the defendant and what knowledge the affiant ... had that he was the defendant named and how he acquired such knowledge. The court may require the affiant ... to appear in court and be examined in respect thereto.
 
DRL § 236-B
 
4. Compulsory financial disclosure.
a. In all matrimonial actions and proceedings in which alimony, maintenance or support is in issue, there shall be compulsory disclosure by both parties of their respective financial states. ...A sworn statement of net worth shall be provided ...
 
As used in this part, the term “net worth” shall mean the amount by which total assets including income exceed total liabilities including fixed financial obligations. It shall include all income and assets of whatsoever kind and nature and wherever situated and shall include a list of all assets transferred in any manner during the preceding three years, or the length of the marriage, whichever is shorter; provided, however that transfers in the routine course of business which resulted in an exchange of assets of substantially equivalent value need not be specifically disclosed where such assets are otherwise identified in the statement of net worth. All such sworn statements of net worth shall be accompanied by a current and representative paycheck stub and the most recently filed state and federal income tax returns including a copy of the W-2(s) wage and tax statement(s) submitted with the returns.
 
In addition, both parties shall provide information relating to any and all group health plans available to them for the provision of care or other medical benefits by insurance or otherwise for the benefit of the child or children for whom support is sought,... Noncompliance shall be punishable by any or all of the penalties prescribed in section thirty-one hundred twenty-six of the civil practice law and rules, in examination before or during trial.

N.Y. Dom. Rel. Law § 236 (McKinney)
 
CPLR § 308. Personal service upon a natural person

Personal service upon a natural person shall be made by any of the following methods:
1. by delivering the summons within the state to the person to be served; or
2. by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing; proof of service shall identify such person of suitable age and discretion and state the date, time and place of service, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law; or
3. by delivering the summons within the state to the agent for service of the person to be served as designated under rule 318, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law;
4. where service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such affixing and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such affixing or mailing, whichever is effected later; service shall be complete ten days after such filing, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law;
5. in such manner as the court, upon motion without notice, directs, if service is impracticable under paragraphs one, two and four of this section.
6. For purposes of this section, “actual place of business” shall include any location that the defendant, through regular solicitation or advertisement, has held out as its place of business.
 
DRL § 236-B(4)
4. Compulsory financial disclosure. a. In all matrimonial actions and proceedings in which alimony, maintenance or support is in issue, there shall be compulsory disclosure by both parties of their respective financial states. No showing of special circumstances shall be required before such disclosure is ordered. A sworn statement of net worth shall be provided upon receipt of a notice in writing demanding the same, within twenty days after the receipt thereof. In the event said statement is not demanded, it shall be filed with the clerk of the court by each party, within ten days after joinder of issue, in the court in which the proceeding is pending. As used in this part, the term “net worth” shall mean the amount by which total assets including income exceed total liabilities including fixed financial obligations. It shall include all income and assets of whatsoever kind and nature and wherever situated and shall include a list of all assets transferred in any manner during the preceding three years, or the length of the marriage, whichever is shorter; provided, however that transfers in the routine course of business which resulted in an exchange of assets of substantially equivalent value need not be specifically disclosed where such assets are otherwise identified in the statement of net worth. All such sworn statements of net worth shall be accompanied by a current and representative paycheck stub and the most recently filed state and federal income tax returns including a copy of the W-2(s) wage and tax statement(s) submitted with the returns. In addition, both parties shall provide information relating to any and all group health plans available to them for the provision of care or other medical benefits by insurance or otherwise for the benefit of the child or children for whom support is sought, including all such information as may be required to be included in a qualified medical child support order as defined in section six hundred nine of the employee retirement income security act of 1974 (29 USC 1169) including, but not limited to: (i) the name and last known mailing address of each party and of each dependent to be covered by the order; (ii) the identification and a description of each group health plan available for the benefit or coverage of the disclosing party and the child or children for whom support is sought; (iii) a detailed description of the type of coverage available from each group health plan for the potential benefit of each such dependent; (iv) the identification of the plan administrator for each such group health plan and the address of such administrator; (v) the identification numbers for each such group health plan; and (vi) such other information as may be required by the court. Noncompliance shall be punishable by any or all of the penalties prescribed in section thirty-one hundred twenty-six of the civil practice law and rules, in examination before or during trial.
 

 

3.4.3 22 NYCRR 202.16 re Contested Matrimonial Actions 3.4.3 22 NYCRR 202.16 re Contested Matrimonial Actions

Section 202.16. Matrimonial actions; calendar control of financial disclosure in actions and proceedings involving alimony, maintenance, child support and equitable distribution; motions for alimony, counsel fees pendente lite, and child support; special rules
 
(a) Applicability. This section shall be applicable to all contested actions and proceedings in the Supreme Court in which statements of net worth are required by section 236 of the Domestic Relations Law to be filed and in which a judicial determination may be made with respect to alimony, counsel fees, pendente lite, maintenance, custody and visitation, child support, or the equitable distribution of property, including those referred to Family Court by the Supreme Court pursuant to section 464 of the Family Court Act.
(b) Form of statements of net worth. Sworn statements of net worth, except as provided in subdivision (k) of this section, exchanged and filed with the court pursuant to section 236 of the Domestic Relations Law, shall be in substantial compliance with the Statement of Net Worth form contained in Chapter III, Subchapter A of Subtitle D (Forms) of this Title.
(c) Retainer agreements.
(1) A signed copy of the attorney's retainer agreement with the client shall accompany the statement of net worth filed with the court, and the court shall examine the agreement to assure that it conforms to Appellate Division attorney conduct and disciplinary rules. Where substitution of counsel occurs after the filing with the court of the net worth statement, a signed copy of the attorney's retainer agreement shall be filed with the court within 10 days of its execution.
(2) An attorney seeking to obtain an interest in any property of his or her client to secure payment of the attorney's fee shall make application to the court for approval of said interest on notice to the client and to his or her adversary. The application may be granted only after the court reviews the finances of the parties and an application for attorney's fees.
(d) Request for judicial intervention. A request for judicial intervention shall be filed with the court by the plaintiff no later than 45 days from the date of service of the summons and complaint or summons with notice upon the defendant, unless both parties file a notice of no necessity with the court, in which event the request for judicial intervention may be filed no later than 120 days from the date of service of the summons and complaint or summons with notice upon the defendant. Notwithstanding section 202.6(a) of this Part, the court shall accept a request for judicial intervention that is not accompanied by other papers to be filed in court.
(e) Certification. Every paper served on another party or filed or submitted to the court in a matrimonial action shall be signed as provided in section 130-1.1a of this Title.
(f) Preliminary conference.
(1) In all actions or proceedings to which this section of the rules is applicable, a preliminary conference shall be ordered by the court to be held within 45 days after the action has been assigned. Such order shall set the time and date for the conference and shall specify the papers that shall be exchanged between the parties. These papers must be exchanged no later than 10 days prior to the preliminary conference, unless the court directs otherwise. These papers shall include:
(i) statements of net worth which also shall be filed with the court no later than 10 days prior to the preliminary conference;
(ii) all paycheck stubs for the current calendar year and the last paycheck stub for the immediately preceding calendar year;
(iii) all filed State and Federal income tax returns for the previous three years, including both personal returns and returns filed on behalf of any partnership or closely held corporation of which the party is a partner or shareholder;
(iv) all W-2 wage and tax statements, 1099 forms, and K-1 forms for any year in the past three years in which the party did not file State and Federal income tax returns;
(v) all statements of accounts received during the past three years from each financial institution in which the party has maintained any account in which cash or securities are held;
(vi) the statements immediately preceding and following the date of commencement of the matrimonial action pertaining to:
(a) any policy of life insurance having a cash or dividend surrender value; and
(b) any deferred compensation plan of any type or nature in which the party has an interest including, but not limited to, individual retirement accounts, pensions, profit-sharing plans, Keogh plans, 401(k) plans and other retirement plans.
Both parties personally must be present in court at the time of the conference, and the judge personally shall address the parties at some time during the conference.
(2) The matters to be considered at the conference may include, among other things:
(i) applications for pendente lite relief, including interim counsel fees;
(ii) compliance with the requirement of compulsory financial disclosure, including the exchange and filing of a supplemental statement of net worth indicating material changes in any previously exchanged and filed statement of net worth;
(iii) simplification and limitation of issues;
(iv) the establishment of a timetable for the completion of all disclosure proceedings, provided that all such procedures must be completed and the note of issue filed within six months from the commencement of the conference, unless otherwise shortened or extended by the court depending upon the circumstances of the case;
(v) the completion of a preliminary conference order substantially in the form contained in Appendix G (see subdivision [m] of this section) to these rules, with attachments; and
(vi) any other matters which the court shall deem appropriate.
(3) At the close of the conference, the court shall direct the parties to stipulate, in writing or on the record, as to all resolved issues, which the court then shall “so order,” and as to all issues with respect to fault, custody and finance that remain unresolved. Any issues with respect to fault, custody and finance that are not specifically described in writing or on the record at that time may not be raised in the action unless good cause is shown. The court shall fix a schedule for discovery as to all unresolved issues and, in a noncomplex case, shall schedule a date for trial not later than six months from the date of the conference. The court may appoint an attorney for the infant children, or may direct the parties to file with the court, within 30 days of the conference, a list of suitable attorneys for children for selection by the court. The court also may direct that a list of expert witnesses be filed with the court within 30 days of the conference from which the court may select a neutral expert to assist the court. The court shall schedule a compliance conference unless the court dispenses with the conference based upon a stipulation of compliance filed by the parties. Unless the court excuses their presence, the parties personally must be present in court at the time of the compliance conference. If the parties are present in court, the judge personally shall address them at some time during the conference.
(g) Expert witnesses.
(1) Responses to demands for expert information pursuant to CPLR section 3101(d) shall be served within 20 days following service of such demands.
(2) Each expert witness whom a party expects to call at the trial shall file with the court a written report, which shall be exchanged and filed with the court no later than 60 days before the date set for trial, and reply reports, if any, shall be exchanged and filed no later than 30 days before such date. Failure to file with the court a report in conformance with these requirements may, in the court's discretion, preclude the use of the expert. Except for good cause shown, the reports exchanged between the parties shall be the only reports admissable at trial. Late retention of experts and consequent late submission of reports shall be permitted only upon a showing of good cause as authorized by CPLR 3101(d)(1)(i). In the discretion of the court, written reports may be used to substitute for direct testimony at the trial, but the reports shall be submitted by the expert under oath, and the expert shall be present and available for cross-examination. In the discretion of the court, in a proper case, parties may be bound by the expert's report in their direct case.
(h) Statement of proposed disposition.
(1) Each party shall exchange a statement setting forth the following:
(i) the assets claimed to be marital property;
(ii) the assets claimed to be separate property;
(iii) an allocation of debts or liabilities to specific marital or separate assets, where appropriate;
(iv) the amount requested for maintenance, indicating and elaborating upon the statutory factors forming the basis for the maintenance request;
(v) the proposal for equitable distribution, where appropriate, indicating and elaborating upon the statutory factors forming the basis for the proposed distribution;
(vi) the proposal for a distributive award, if requested, including a showing of the need for a distributive award;
(vii) the proposed plan for child support, indicating and elaborating upon the statutory factors upon which the proposal is based; and
(viii) the proposed plan for custody and visitation of any children involved in the proceeding, setting forth the reasons therefor.
(2) A copy of any written agreement entered into by the parties relating to financial arrangements or custody or visitation shall be annexed to the statement referred to in paragraph (1) of this subdivision.
(3) The statement referred to in paragraph (1) of this subdivision, with proof of service upon the other party, shall, with the note of issue, be filed with the court. The other party, if he or she has not already done so, shall file with the court a statement complying with paragraph (1) of this subdivision within 20 days of such service.
(i) Filing of note of issue. No action or proceeding to which this section is applicable shall be deemed ready for trial unless there is compliance with this section by the party filing the note of issue and certificate of readiness.
(j) Referral to Family Court. In all actions or proceedings to which this section is applicable referred to the Family Court by the Supreme Court pursuant to section 464 of the Family Court Act, all statements, including supplemental statements, exchanged and filed by the parties pursuant to this section shall be transmitted to the Family Court with the order of referral.
(k) Motions for alimony, maintenance, counsel fees pendente lite and child support (other than under section 237[c] or 238 of the Domestic Relations Law). Unless, on application made to the court, the requirements of this subdivision be waived for good cause shown, or unless otherwise expressly provided by any provision of the CPLR or other statute, the following requirements shall govern motions for alimony, maintenance, counsel fees (other than a motion made pursuant to section 237[c] or 238 of the Domestic Relations Law for counsel fees for services rendered by an attorney to secure the enforcement of a previously granted order or decree) or child support or any modification of an award thereof:
(1) Such motion shall be made before or at the preliminary conference, if practicable.
(2) No motion shall be heard unless the moving papers include a statement of net worth in the official form prescribed by subdivision (b) of this section.
(3) No motion for counsel fees and expenses shall be heard unless the moving papers also include the affidavit of the movant's attorney stating the moneys, if any, received on account of such attorney's fee from the movant or any other person on behalf of the movant, the hourly amount charged by the attorney, the amounts paid, or to be paid, to counsel and any experts, and any additional costs, disbursements or expenses, and the moneys such attorney has been promised by, or the agreement made with, the movant or other persons on behalf of the movant, concerning or in payment of the fee. Fees and expenses of experts shall include appraisal, accounting, actuarial, investigative and other fees and expenses to enable a spouse to carry on or defend a matrimonial action or proceeding in the Supreme Court.
(4) The party opposing any motion shall be deemed to have admitted, for the purpose of the motion but not otherwise, such facts set forth in the moving party's statement of net worth as are not controverted in:
(i) a statement of net worth, in the official form prescribed by this section, completed and sworn to by the opposing party, and made a part of the answering papers; or
(ii) other sworn statements or affidavits with respect to any fact which is not feasible to controvert in the opposing party's statement of net worth.
(5) The failure to comply with the provisions of this subdivision shall be good cause, in the discretion of the judge presiding, either:
(i) to draw an inference favorable to the adverse party with respect to any disputed fact or issue affected by such failure; or
(ii) to deny the motion without prejudice to renewal upon compliance with the provisions of this section.
(6) The notice of motion submitted with any motion for or related to interim maintenance or child support shall contain a notation indicating the nature of the motion. Any such motion shall be determined within 30 days after the motion is submitted for decision.
(7) Upon any application for an award of counsel fees or fees and expenses of experts made prior to the conclusion of the trial of the action, the court shall set forth in specific detail, in writing or on the record, the factors it considered and the reasons for its decision.
(l) Hearings or trials pertaining to temporary or permanent custody or visitation shall proceed from day to day conclusion. With respect to other issues before the court, to the extent feasible, trial should proceed from day to day to conclusion.
(m) Omission or Redaction of Confidential Personal Information from Matrimonial Decisions.
(1) Except as otherwise provided by rule or law or court order, and whether or not a sealing order is or has been sought, prior to submitting any decision, order, judgment, or combined decision and order of judgment in a matrimonial action for publication, the court shall redact the following confidential personal information:
(i) the taxpayer identification number of an individual or an entity, including a social security number, an employer identification number, and an individual taxpayer identification number, except the last four digits thereof;
(ii) the actual home address of the parties to the matrimonial action and their children;
(iii) the full name of an individual known to be a minor under the age of 18 years of age, except the minor's initials or the first name of the minor with the first initial of the minor's last name: provided that nothing herein shall prevent the court from granting a request to use only the minor's initials or only the word “Anonymous;”
(iv) the date of an individual's birth (including the date of birth of minor children), except the year of birth;
(v) the full name of either party where there are allegations of domestic violence, neglect, abuse, juvenile delinquency or mental health issues, except the party's initials or the first name of the party with the first initial of the party's last name; provided that nothing herein shall prevent the court from granting a request to use only the party's initials or only the word “Anonymous;” and
(vi) a financial account number, including a credit and/or debit card number, a bank account number, an investment account number, and/or an insurance account number (including a health insurance account number), except the last four digits or letters thereof.
(2) Nothing herein shall require parties to omit or redact personal confidential information as described herein or section 202.5(e) of this Part in papers submitted to the court for filing.
(3) Nothing herein shall prevent the court from omitting or redacting more personal confidential information than is required by this rule, either upon the request of a party or sua sponte.

 

N.Y. Comp. Codes R. & Regs. tit. 22, § 202.16

3.4.4 Automatic Orders (Handout for Clients) 3.4.4 Automatic Orders (Handout for Clients)

 

 

 

 

 

 

Automatic Orders

 

The mediation/collaborative process rests on a foundation of trust, particularly in regard to the financial wellbeing of the family.  In a litigated divorce, both parties would have to abide by the “Automatic Orders” which take effect as soon as the divorce action is filed.  The text of those orders is below.  In order to maintain the integrity of our work together, we ask that you abide by the following, even though in most mediation or collaborative cases, the divorce action will not be filed until the settlement agreement has been reached: 

 

  1. Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney's fee in connection with this action; and
  2. Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of any tax deferred funds, stocks or other assets held in any individual retirement accounts, 401k accounts, profit sharing plans, Keogh accounts, or any other pension or retirement account, and the parties shall further refrain from applying for or requesting the payment of retirement benefits or annuity payments of any kind, without the consent of the other party in writing, or upon further order of the court; except that any party who is already in pay status may continue to receive such payments thereunder; and
  3. Neither party shall incur unreasonable debts hereafter, including, but not limited to, further borrowing against any credit line secured by the family residence, further encumbrancing any assets, or unreasonably using credit cards or cash advances against credit cards, except in the usual course of business or for customary or usual housing expenses, or for reasonable attorney's fees in connection with this action; and
  4. Neither party shall cause the other party or the children of the marriage to be removed from any existing medical, hospital and dental insurance coverage, and each party shall maintain the existing medical, hospital and dental insurance coverage in full force and effect; and
  5. Neither party shall change the beneficiaries of any existing life insurance policies, and each party shall maintain the existing life insurance, automobile insurance, homeowners and renters insurance policies in full force and effect.

 

New York Domestic Relations Law § 236 B(2) 

3.4.5. Uncontested Divorce Forms - Instructions

Uncontested Divorce Forms - Instructions

3.4.6. Uncontested Divorce Forms (the actual forms)

Uncontested Divorce Forms (the actual forms)

3.4.7. Contested Divorce Timeline

from NYS Courts website ww2.nyscourts.gov

Contested Divorce Timeline

3.4.8. Contested Divorce Flowchart

from NY Courts website ww2.nycourts.gov

Contested Divorce Flowchart

3.4.9. Summons With Notice (form)

Summons With Notice (form)