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New York Matrimonial Trial Handbook

The New York Matrimonial Trial Handbook by Joel R. Brandes is available in Bookstores and online in the print edition at the Bookbaby Bookstore, Amazon Barnes & Noble, Goodreads and other online book sellers. It is also available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore. The New York Matrimonial Trial Handbook is divided into five parts: (1) Preliminary Matters Prior to the Commencement of Trial, Conduct of Trial and Rules of Evidence Particularly Applicable in Matrimonial Matters; (2); Establishing Grounds for Divorce, Separation and Annulment and Defenses; (3) Obtaining Maintenance, Child Support, Exclusive Occupancy and Counsel Fees; (4) Property Distribution and Evidence of Value; and (5) Trial of a Custody Case. There are thousands of suggested questions for the examination and cross-examination of witnesses dealing with very aspect of the matrimonial trial. Click on this link for more information about the contents of the book and on this link for the complete table of contents.

The New York Matrimonial Trial Handbook was reviewed by Bernard Dworkin, Esq., in the New York Law Journal on December 21, 2017. His review is reprinted on our website at http://www.nysdivorce.com with the permission of the New York Law Journal.

Joel R. Brandes, is the author of Law and The Family New York, 2d (9 volumes) (Thomson Reuters), and Law and the Family New York Forms (5 volumes) (Thomson Reuters). Law and The Family New York, 2d (9 volumes) (Thomson Reuters), is both a treatise and a procedural guide. The text analyzes every aspect of New York Family Law. Law and the Family New York Forms, 2d (New York Practice Library, 5 Volumes) provides practitioner-tested forms for New York divorce and family law matters.

Wednesday, March 04, 2009

Standard of Proof in Family Offense Proceeding When Court Commits an Individual to a Jail Term Is Proof Beyond a Reasonable Doubt

In Matter of Rubackin v Rubackin, --- N.Y.S.2d ----, 2009 WL 486027 (N.Y.A.D. 2 Dept.) the Appellate Division, Second Department concluded that the standard of proof which must be met when the court commits an individual to a jail term is proof beyond a reasonable doubt that he or she willfully failed to obey a lawful order of the court. That same high standard is not applicable if one or more of the other available remedies under Family Court Act 846-a is utilized and a jail term is not imposed. The failure to obey a lawful order of a court is a species of contempt. A contempt of court ultimately may constitute a criminal contempt, a civil contempt, or both a criminal and a civil contempt. A period of incarceration may be imposed upon a finding of either a criminal or civil contempt. It noted that in Dalessio v. Kressler (6 AD3d 57), the distinction between civil and criminal contempt was discussed: "Civil contempt (see Judiciary Law 753) 'has as its aim the vindication of a private party to litigation' and includes as its elements knowledge of the order and prejudice to the rights of a party to the litigation [citations omitted] ... The purpose of criminal contempt (see Judiciary Law 750) is to vindicate the authority of the court [citations omitted]. No showing of prejudice to the
rights of a party to the litigation is needed 'since the right of the private parties to the litigation is not the controlling factor' [citations omitted]. An essential element of criminal contempt is willful disobedience (see Judiciary Law s 750[3] )" (Dalessio v. Kressler, 6 AD3d at 65-66). It noted that its holding changed the standard of proof previously found to be applicable under Family Court Act 846-a by it and by other departments of the Appellate Division. The Second Department held that when an individual is incarcerated as a punitive remedy for violating an order of protection issued under Family Court Act article 8, the imprisonment is for a definite term and the proceeding is one involving criminal contempt. The standard of proof that must be met to establish that the individual willfully violated the court's order is beyond a reasonable doubt. That higher standard, as opposed to the clear and convincing standard, is the requisite standard. The prior decisions of the Court, in cases where the respondent had been committed to a term in jail pursuant to Family Court Act 846-a, holding that the standard of proof is one of the lesser standards, should no longer be followed. A commitment to jail for a term not to exceed six months is only one of the five alternative, or cumulative, remedies the Family Court may impose pursuant to Family Court Act 846-a when it is satisfied that a party has willfully failed to obey the court's order or orders. When an order committing a respondent to a jail term is issued, either alone or in combination with another remedy, the commitment is punitive, to punish the individual for his or her disobedience, and the standard of proof is beyond a reasonable doubt. As a petition alleging that a respondent has failed to obey a lawful order of the court may result in a finding of criminal contempt, civil contempt, or both criminal and civil contempt, the parties should be informed of the potential findings and the applicable standards of proof.