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New York Matrimonial Trial Handbook

The New York Matrimonial Trial Handbook by Joel R. Brandes is available online in the print edition at the Bookbaby Bookstore and other bookstores. It is now available in Kindle ebook editions and epub ebook editions in our website bookstore. It is also available at Amazon Kindle, Barnes & Noble and Goodreads.

The New York Matrimonial Trial Handbook was reviewed in the New York Law Journal. Click here to read the review.

The New York Matrimonial Trial Handbook was also reviewed in Readers Favorite Book Reviews. Click here for that review.

The New York Matrimonial Trial Handbook was written for both the attorney who has never tried a matrimonial action and for the experienced litigator. It is a “how to” book for lawyers. This 836 page handbook focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a matrimonial action. It is intended to be an aid for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. The handbook deals extensively with the testimonial and documentary evidence necessary to meet the burden of proof. There are thousands of suggested questions for the examination of witnesses at trial to establish each cause of action and requests for ancillary relief, as well as for the cross-examination of difficult witnesses. Table of Contents

Monday, November 21, 2016

Net Worth Affidavit Form Revised Effective August 1, 2016



The Affidavit of Net Worth Form which is required to be served by both parties, pursuant to DRL §236 [B] [2]  and 22 NYCRR §202.16(b),  was revised effective August 1, 2016. The new form, which is gender neutral,  includes new categories of expenses and removes certain expense categories. The most significant change is that it requires that the value of assets and the amount of liabilities and debts shall be listed as of “date of commencement” of the action in addition to the “current amount.”

Other significant changes in the form include new sections under “Liabilities“ for “Credit Card Debt” and “Home Equity and Other Lines of Credit;” former Item VII, Support Requirements, was removed; and former item VIII  Counsel Fees was removed and replaced with the following:

         “VII. LEGAL & EXPERT FEES

Please state the amount you have paid to all lawyers and experts retained in connection with your marital dissolution, including name of professional, amounts and dates paid, and source of funds.  Attach retainer agreement for your present   
attorney.”

The parties are now required to indicate if the net worth statement is not the first one they have filed. The following language appears at the end of the form:

“This is the _______ Statement of Net Worth I have filed in this proceeding.”

        It appears that item 12.1 Contingent Interests (stock options, interests subject to life estates, prospective inheritances) contains a confusing typographical error.  It requires the affiant to list  "g. source of acquisition to acquire. ”  However, it is clear from the balance of the assets portion of the form  that this was meant to read “Source of funds to acquire”, a term used throughout the form. 

The Net Worth Affidavit form can be downloaded in pdf, word and fillable format from http://www.nycourts.gov/divorce/forms.shtml

Preliminary Conference Stipulation/Order Form Revised Effective August 1, 2016



The Preliminary Conference Stipulation/Order  form required to be served pursuant to 22 NYCRR §202.16(f) was revised effective August 1, 2016. It was re-formatted and contains new provisions related to the post-divorce maintenance guidelines and notice of the automatic orders. 

         DRL §236 [B] [6] [g], which is applicable in actions commenced on or after January 25, 2016 (Laws of 2015, Ch 269)  provides that where either or both parties are unrepresented, the court shall not enter a maintenance order or judgment unless the court informs the unrepresented party or parties of the post-divorce maintenance guideline obligation. Subdivision M. titled “NOTICE OF GUIDELINE MAINTENANCE” contains a notice intended to comply with DRL §236 [B] [6] [g],  in cases where there is an unrepresented party.   The Notice advises the parties that under the Maintenance Guidelines Law there is an obligation to award the guideline amount of maintenance on income up to $178,000 to be paid by the party with the higher income (the maintenance payor) to the party with the lower income (the maintenance payee) according to a formula, unless the parties agree otherwise or waive this right. 

          The new form contains a new Subdivision J titled AUTOMATIC STATUTORY RESTRAINTS ( DRL §236[B][2]), in which each party acknowledges that he or she has received a copy of the Automatic Statutory Restraints/Automatic Orders required by DRL §236[B][2], and that he or she understands that he or she is bound by those Restraints/Orders during the pendency of this action, unless terminated, modified, or amended by order of the Court upon motion of either party or upon written agreement between the parties duly executed and acknowledged.


          The other significant changes in the form are as follows:

         BACKGROUND INFORMATION, was moved to Item A, at the beginning of the form and the information formerly at the beginning of the  form was moved into item A.5.  That part of Item A  which requires the parties to identify and state the nature of any premarital, marital, separation and other agreements was modified to add “and/or Orders which affect the rights of either of the parties in this action.”  Like the former preliminary conference statement  it also contains a space to include  a date for either party to “challenge the agreement”. However, unlike the former form, the new form contains a  a waiver provision which specifies that if “No challenge is asserted by that date, it is waived unless good cause is shown.”  

        Subdivision B GROUNDS FOR DIVORCE (1-3) contains spaces for the parties to insert the dates the pleadings were served or will be served. Subdivision B (4) which is where the parties  indicate that the issue of grounds “is unresolved” was modified to remove “a jury is or is not required”.  In the new form Subdivision B (4) specifies that if “the issue of grounds is resolved, the parties agree that Plaintiff/Defendant will proceed on an uncontested basis to obtain a divorce on the grounds of DRL § 170(7) and the parties waive the right to serve a Notice to Discontinue pursuant to CPLR 3217(a) unless on consent of the parties.”

      That part of former Subdivision C, which stated that  “The issue of custody is resolved __ unresolved__”  was removed from the form, and the references to a “parenting plan” in  the event custody issues are resolved or unresolved were removed.

      The following was added to Subdivision C CUSTODY, as (3):

  ATTORNEY FOR CHILD(REN) or GUARDIAN AD LITEM:  Subject to judicial approval, the parties request that the Court appoint an Attorney for the parties’ minor child(ren) (“AFC”). The cost of the AFC’s services shall be paid as follows: _________________________________________________________ .

 FORENSIC:  Subject to judicial approval, the parties request that the Court appoint a neutral forensic expert to conduct a custody/parental access evaluation of the parties and their child(ren).  Subject to Judicial approval, the cost of the forensic evaluation shall be paid as follows:______________________________.

The following was added to Subdivision D FINANCIAL: “(4) Counsel Fees are  resolved  unresolved.” 
Subdivision G. (1) titled Preservation of Evidence  was modified to add the requirement that a party shall maintain not only all financial records in his or her possession but all financial records “under his or her control” through the date of the entry of a judgment of divorce.
Subdivision G (2) titled Document Production was also modified to remove the 45 day period to exchange records and require the exchange of checking account, brokerage account and savings account records for both “joint and individual accounts.”

          The following language was removed from Subdivision G:  “Any costs associated with the use of the authorization shall be paid by _____OR reserved for the Court once the amount is determined.
            No later than ________, the parties shall notify the Court of all items to be provided above that have not been provided.

        Spaces were added to Subdivision G (2) for the parties to list the dates for both parties to respond to notices of discovery and inspection, and interrogatories.

        Spaces that were in the former preliminary conference order for the parties to list the dates that party depositions and third party depositions were to be completed have been removed. 

        “Compliance with discovery demands shall be on a timely basis pursuant to the CPLR “ was removed from Subdivision G.

        Subdivision H, VALUATION/FINANCIAL was re-written but is substantially the same as in the former form.

        The checklist for assets requiring valuation  in former Item 1 was removed  as well as the sentence :” The date of valuation be ___________for items___________and shall be the date of commencement of this action for items_________________ .”

        The words “no later than_____” were removed from the following sentence in Item 1: ‘If a party requires fees to retain an expert and the parties cannot agree upon the source of the funds, an application for fees shall be made.”  

        The time limitations for the exchange of expert reports in Item 2, Experts to be Retained by a Party, where there is no date specified,  was modified to extend the time to exchange expert reports: “Absent any date specified, they are to be exchanged 60 days prior to trial or” 30 days after receipt of the report of the neutral expert, whichever is later.”

  Subdivision I, ” Confidentiality/Non-Disclosure Agreement “ which appeared in the former form, was removed.

          Finally, the following was added to subdivision N: “All discovery as set forth herein above is expected to be  completed prior to the compliance conference.”  

           The Preliminary Conference form can be downloaded in pdf, word and fillable format from http://www.nycourts.gov/divorce/forms.shtml


Saturday, November 19, 2016

Court of Appeals Holds Where Party Represented by Counsel Family Court Objections Must Be Served Upon Him.




    In Matter of Odunbaku v Odunbaku, 2016 NY Slip Op 07705 (2016) the Court of Appeals held that if a party is represented by counsel, the time requirements set out in Family Court Act § 439 (e) for objections to a support magistrate's final order, when the order is served by mail, do not begin to run until the order is mailed to counsel.

    The mother retained Staten Island Legal Services to represent her in her efforts to obtain child support from respondent father, with whom she had a son. Through counsel, who represented her throughout the proceedings she obtained a support order. Subsequently a different support magistrate granted the father's petition for downward modification and reduced the father's child support obligation. The order and findings, dated July 24, 2013, was mailed by the Clerk of Family Court directly to the father and to the mother, but not to the father's lawyer or the mother's lawyer. On September 3, 2013, 41 days after the orders were mailed, the mother, through counsel, filed objections. Family Court denied the bjections as untimely, relying on Family Court Act § 439 (e), which provides that "[s]pecific written objections to a final order of a support magistrate may be filed by either party with the court within thirty days after receipt of the order in court or by personal service, or, if the objecting party or parties did not receive the order in court or by personal service, thirty-five days after mailing of the order to such party or parties" (emphasis added). The Court ruled that "the mailing of a copy of the order and findings of fact to a party of the proceedings satisfied the requirements of § 439 (e) and [22 NYCRR] 205.36 (b)" and that "neither the Family Court Act nor [22 NYCRR 205.36 (b)] specifically requires that the Clerk of Court shall mail a copy of the Support Magistrate's order and decision to a party's attorney."

    The mother appealed relying on Matter of Bianca v Frank (43 NY2d 168 [1977]). The Appellate Division affirmed relying on 22 NYCRR 205.36  (b) which  provides that "[a]t the time of the entry of the order of support, the clerk of [Family Court] shall cause a copy of the findings of fact and order of support to be served either in person or by mail upon the parties to the proceeding or their attorneys."

     The Court of Appeals reversed holding that Matter of Bianca v Frank was dispositive. There, it held that once counsel has appeared in a matter a Statute of Limitations or time requirement cannot begin to run unless that counsel is served with the determination or the order or judgment sought to be reviewed". The Bianca Court recognized that this principle would not apply if a legislative enactment specifically excluded the necessity of serving counsel by stating the legislative "intention to depart from the standard practice . . . in unmistakable terms" . The Court noted that the  rationale of Bianca is straightforward. "[O]nce a party chooses to be represented by counsel in an action or proceeding, whether administrative or judicial, the attorney is deemed to act as his agent in all respects relevant to the proceeding. Thus any documents, particularly those purporting to have legal effect on the proceeding, should be served on the attorney the party has chosen to handle the matter on his behalf”

    The Court held that Bianca governed and the reference to the mailing of the order to a "party or parties" in Family Court Act § 439 (e) must be read to require that the order be mailed to the party's counsel, in order for the statutory time requirement to commence. While section 439 (e) uses the term "party," the statute does not convey in language that could not be mistaken that mailing to a represented party is dispositive for time requirement purposes and mailing to counsel is unnecessary, notwithstanding Bianca.

Wednesday, August 31, 2016

Court of Appeals Overrules Matter of Alison D. and re-defines meaning of "parent" for custody and visitation purposes

           In Matter of Brooke S.B., v Elizabeth A. C.C., two related cases, the Court of Appeals revisited  Matter of Alison D. v Virginia M. (77 NY2d 651 [1991]) which held that in an unmarried couple, a partner without a biological or adoptive relation to a child is not that child's "parent" for purposes of standing to seek custody or visitation under Domestic Relations Law § 70 (a), notwithstanding their "established relationship with the child".  The Court of Appeals agreed that the Petitioners in these cases, who similarly lacked any biological or adoptive connection to the children, should have standing to seek custody and visitation pursuant to Domestic Relations Law § 70 (a) in light of more recently delineated legal principles, which required it to conclude that that definition of "parent" established by it in Alison D. has become unworkable when applied to increasingly varied familial relationships. The Court, in an opinion by Judge Abdus-Salaam overruled Alison D. and held that where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law § 70.  

          The Court of Appeals pointed out that the petitioners had argued that its holding that Domestic Relations Law § 70 permits a non-biological, non-adoptive parent to achieve standing to petition for custody and visitation requires it to specify the limited circumstances in which such a person has standing as a "parent" under Domestic Relations Law § 70.  It observed that because of the fundamental rights to which biological and adoptive parents are entitled, any encroachment on the rights of such parents and, especially, any test to expand who is a parent, must be appropriately narrow.  It rejected the premise that it must now declare that one test would be appropriate for all situations, or that the competing tests proffered by Petitioners and amici were the only options that should be considered.  It noted that the Petitioners had alleged in both cases before it that the parties entered into a pre-conception agreement to conceive and raise a child as co-parents.  It held that these allegations, if proven by clear and convincing evidence, were sufficient to establish standing.  Because it decided these cases based on the facts presented to it, it was premature for the Court to consider adopting a test for situations in which a couple did not enter into a pre-conception agreement. The Court specified that it did not decide whether, in a case where a biological or adoptive parent consented to the creation of a parent-like relationship between his or her partner and child after conception, the partner can establish standing to seek visitation and custody. Inasmuch as the conception test applied here, it did not opine on the proper test, if any, to be applied in situations in which a couple has not entered into a pre-conception agreement.  It merely concluded that, where a petitioner proves by clear and convincing evidence that he or she has agreed with the biological parent of the child to conceive and raise the child as co-parents, the petitioner has presented sufficient evidence to achieve standing to seek custody and visitation of the child.  Whether a partner without such an agreement can establish standing and if so, what factors a petitioner must establish to achieve standing based on equitable estoppel was a matter left for another day, upon a different record. The Court stressed that its decision addressed only the ability of a person to establish standing as a parent to petition for custody or visitation; the ultimate determination of whether those rights shall be granted rests in the sound discretion of the court, which will determine the best interests of the child.   The Court of Appeals agreed that the Petitioners in these cases, who similarly lacked any biological or adoptive connection to the children, should have standing to seek custody and visitation pursuant to Domestic Relations Law § 70 (a) in light of more recently delineated legal principles, which required it to conclude that that definition of "parent" established by it in Alison D. has become unworkable when applied to increasingly varied familial relationships. The Court, in an opinion by Judge Abdus-Salaam overruled Alison D. and held that where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law § 70.  


          The Court of Appeals pointed out that the petitioners had argued that its holding that Domestic Relations Law § 70 permits a non-biological, non-adoptive parent to achieve standing to petition for custody and visitation requires it to specify the limited circumstances in which such a person has standing as a "parent" under Domestic Relations Law § 70.  It observed that because of the fundamental rights to which biological and adoptive parents are entitled, any encroachment on the rights of such parents and, especially, any test to expand who is a parent, must be appropriately narrow.  It rejected the premise that it must now declare that one test would be appropriate for all situations, or that the competing tests proffered by Petitioners and amici were the only options that should be considered.  It noted that the Petitioners had alleged in both cases before it that the parties entered into a pre-conception agreement to conceive and raise a child as co-parents.  It held that these allegations, if proven by clear and convincing evidence, were sufficient to establish standing.  Because it decided these cases based on the facts presented to it, it was premature for the Court to consider adopting a test for situations in which a couple did not enter into a pre-conception agreement. The Court specified that it did not decide whether, in a case where a biological or adoptive parent consented to the creation of a parent-like relationship between his or her partner and child after conception, the partner can establish standing to seek visitation and custody. Inasmuch as the conception test applied here, it did not opine on the proper test, if any, to be applied in situations in which a couple has not entered into a pre-conception agreement.  It merely concluded that, where a petitioner proves by clear and convincing evidence that he or she has agreed with the biological parent of the child to conceive and raise the child as co-parents, the petitioner has presented sufficient evidence to achieve standing to seek custody and visitation of the child.  Whether a partner without such an agreement can establish standing and if so, what factors a petitioner must establish to achieve standing based on equitable estoppel was a matter left for another day, upon a different record. The Court stressed that its decision addressed only the ability of a person to establish standing as a parent to petition for custody or visitation; the ultimate determination of whether those rights shall be granted rests in the sound discretion of the court, which will determine the best interests of the child.  

Tuesday, June 21, 2016

The Court of Appeals has amended its Rules of Practice, effective June 22, 2016.

Principal briefs filed on normal course appeals, certified questions and review of the determinations of the State Commission on Judicial Conduct are subject to a 14,000 word limit. Requests to exceed the limit may be made by letter. Rule 500.1 1 submissions (the Alternative Procedure for Selected Appeals), reply briefs, amicus curiae briefs and briefs in response to amicus curiae briefs are subject to a 7,000 word limit. The amended Rules provide corresponding page limits for briefs that are handwritten or prepared on a typewriter. The new word and page limits apply to all appeals for which the preliminary appeal statement is filed on or after the June 22 effective date.

Tuesday, June 14, 2016

Court of Appeals Holds Consecutive Commitments are Authorized by Family Court Act § 454(3)



In Matter of Columbia County Support Collection Unit, v. Risley, 2016 WL 3147588 (2016) the Court of Appeals held that Family Court, in revoking two prior suspended orders of commitment, was authorized to order consecutive six-month sentences for each to run consecutively with a third six-month sentence imposed for a current violation. The Court, in an opinion by Judge Garcia, observed that Family Court is empowered “to use any or all enforcement powers in every proceeding brought for violation of a court order” of support (Family Ct Act § 454[1] ). Such powers include the authority to sentence willfully non-compliant parents to jail “for a term not to exceed six months [,]” but also to suspend such orders of commitment when appropriate (see Family Ct Act §§ 454[3][a], 455[1] ). The Appellate Division rejected the contention that consecutive commitments were not authorized by Family Court Act § 454(3) and concluded that “[g]iven the father’s failure to contest the amounts due and his willful refusal to voluntarily pay them despite repeated opportunities afforded to him over more than three years, we find no abuse of discretion in the determination to run the sentences consecutively” (122 AD3d 1097, 1098 [3d Dept 2014] ). The Court of Appeals agreed with the Appellate Division and affirmed its order.

Sunday, June 12, 2016

Court of Appeals Rejects "adequate relevant information standard" applied by the Courts in Custody Cases


In S.L. v J.R., ___NY3d ___, 2016 NY Slip Op 04442 (2016) the Court of Appeals, in an opinion by Judge Garcia, reversed an order of the Appellate Division, which affirmed Supreme Court's decision in a custody case not to conduct an evidentiary hearing based on its determination that the court possessed "adequate relevant information to enable it to make an informed and provident determination as to the child's best interest." The Court rejected the “undefined and imprecise” adequate relevant information" standard applied by the courts below which tolerates an unacceptably-high risk of yielding custody determinations that do not conform to the best interest of a child nor adequately protect a parent whose fundamental right, the right to control the upbringing of a child, hangs in the balance. The Court observed that in rendering a final custody award without a hearing, Supreme Court appeared to rely on, among other things, hearsay statements and the conclusion of a court-appointed forensic evaluator whose opinions and credibility were untested by either party. It pointed out that a decision regarding child custody should be based on admissible evidence, and there was no indication that a "best interest" determination was ever made based on anything more reliable than mere "information." Moreover, while Supreme Court purported to rely on allegations that were "not controverted," the affidavit filed by Mother plainly called into question or sought to explain the circumstances surrounding many of the alleged "incidents of disturbing behavior." The Court of Appeals held that these circumstances do not fit within the narrow exception to the general right to a hearing. It reaffirmed the principle that, as a general matter, custody determinations should be rendered only after a full and plenary hearing. It declined, to fashion a "one size fits all" rule mandating a hearing in every custody case statewide. However, where, as here, facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a custody hearing is required. Significantly, the Court held that “ a court opting to forego a plenary hearing must take care to clearly articulate which factors were, or were not, material to its determination, and the evidence supporting its decision.” Under the circumstances of this case, a plenary hearing was necessary.

Monday, May 23, 2016

New 2016 Child Support Standards Chart Released



The 2016 poverty income guideline amount for a single person as reported by the United States Department of Health and Human Services is $11,880 and the 2016 self-support reserve is $16,038. The income cap is currently $143,000 on the combined parental income. Where the total income of both parents exceeds the combined parental income amount of $143,000 the law permits, but does not require, the use of the child support percentages in calculating the child support obligation on the income above $143,000. Click on link to download chart:https://www.childsupport.ny.gov/dcse/pdfs/CSSA.pdf

New Support Forms Updated March 1, 2016 For Maintenance and Child Support Applications Available on New York Courts Website

Click on LInk to download Form
Temporary Maintenance Worksheet (for divorces started on or after 10/25/15)
Temporary Maintenance Worksheet (for divorces started before 10/25/15)

Court of Appeals Holds That Consent to Record Conversation of Child with Another Person Includes Vicarious Consent, on Behalf of a Minor Child



In People v Badalamenti, 2016 WL 1306683 (2016) the Court of Appeals held that the definition of consent, in the context of “mechanical overhearing of a conversation” pursuant to Penal Law § 250.00(2), includes vicarious consent, on behalf of a minor child. It established a “narrowly tailored” test for vicarious consent that requires a court to determine (1) that a parent or guardian had a good faith belief that the recording of a conversation to which the child was a party was necessary to serve the best interests of the child and (2) that there was an objectively reasonable basis for this belief. The Court cautioned that its holding should not be interpreted as a vehicle to attempt to avoid criminal liability for the crime of eavesdropping when a parent acts in bad faith and lacks an objectively reasonable belief that a recording is necessary in order to serve the best interests of his or her minor child. Penal Law § 250.05 and CPLR 4506 cannot be so easily circumvented. The procedural vehicles of pretrial hearings must be used to determine the admissibility of any recordings and will result in the suppression of any parent’s recording that a court determines did not meet the narrowly tailored and objective test. In making this admissibility determination, a court should consider the relevant factors, which include, but are not limited to, the parent’s motive or purpose for making the recording, the necessity of the recording to serve the child’s best interests, and the child’s age, maturity, and ability to formulate well-reasoned judgments of his or her own regarding best interests.

Second Circuit Holds that Intimate Partner Violence Is a Relevant Factor in Determining if Fees and Expenses are "Clearly Inappropriate"


In Souratgar v Fair, 2016 WL 1168733 (2d Cir., 2016) the Second Circuit reversed a judgment ordering Respondent Lee Jen Fair to pay to the prevailing petitioner-appellee, Abdollah Naghash Souratgar, $283,066.62 in expenses under the International Child Abduction Remedies Act, which directs district courts to issue such an order “unless the respondent establishes that such order would be clearly inappropriate.” 22 U.S.C. § 9007(b)(3).  It held that the determination requires district courts to weigh relevant equitable factors, including intimate partner violence. Having reviewed all relevant equitable factors, it concluded that, because the respondent showed that the petitioner engaged in multiple, unilateral acts of intimate partner violence against her and that her removal of the child from the habitual country was related to that violence, and because there were no countervailing factors in the record in favor of the petitioner, such an award would be “clearly inappropriate.”


Court of Appeals Construes "Extended Disruption of Custody", in Domestic Relations Law § 72 (2), in Favor of Grandparents finding they have Standing to Seek Custody



In Suarez v Williams, --- N.E.3d ----, 2015 WL 8788195 (N.Y.), 2015 N.Y. Slip Op. 09231, the Court of Appeals, in an opinion by Judge Leslie Stein, held that grandparents may demonstrate  standing to seek custody, pursuant to Domestic Relations Law § 72 (2) and the Court’s decision in Matter of Bennett v Jeffreys (40 NY2d 543 [1976])  based on extraordinary circumstances where the child has lived with the grandparents for a prolonged period of time, even if the child had contact with, and spent time with, a parent while the child lived with the grandparents. In addition, a parent need not relinquish all care and control of the child. Even if the parent exercises some control over the child, for example during visitation, a parent may still, as a general matter, have voluntarily relinquished care and control of the child to the grandparent to the extent that the grandparent is, in essence, acting as a parent with primary physical custody.

Laws of 2015 Affecting the Practice of Matrimonial Law


Laws of 2015, Chapter 572 amended CPLR 2103 effective January 1, 2016.

CPLR 2103(b)(2) was amended to provide that where a period of time prescribed by law is measured from the service of a paper and service is made by mail outside of the state of New York, but within the geographic boundries of the United States, six days shall be added to the prescribed period. The definition of mailing in CPLR 2103(f)(1) was amended to authorize mailing in the United States, rather than the state of New York.

The purpose of the amendment was so that the rule for mailing service would correspond with that for overnight delivery service in CPLR 2103(b)(6). The Sponsors memorandum in support of the legislation also noted a decision by the Appellate Division, First Department, holding the service by mail made outside the State was insufficient (M. Entertainment, Inc. v. Leydier, 62 A.D.3d 627 (reversed on other grounds, 13 N.Y.3d 827). The amendment authorizes service by mail outside the state, but within the geographical boundries of the United States.

Laws of 2015, Chapter 567 (effective June 18, 2016)


Domestic Relations Law§ 240, subdivision 1 (a) was amended and subdivision (c-1) was added to Family Court Act § 651 (c-1). The purpose of the legislation was to underscore that custody standards apply in cases where custody and visitation petitions brought under these sections are heard jointly with child protective dispositional or permanency hearings in Family Court under Article 10 or 10-A of the Family Court Act.

The following provision was inserted into Domestic Relations Law§ 240 subdivision 1 (a):

Where a proceeding filed pursuant to article ten or ten-A of the family court act is pending at the same time as a proceeding brought in the supreme court involving the custody of, or right to visitation with, any child of a marriage, the court presiding over the proceeding under article ten or ten-A of the family court act may jointly hear the dispositional hearing on the petition under article ten or the permanency hearing under article ten-A of the family court act and, upon referral from the supreme court, the hearing to resolve the matter of custody or visitation in the proceeding pending in the supreme court; provided however, the court must determine custody or visitation in accordance with the terms of this section.

The following provision was added to Family Court Act §651:

(c–1) Where a proceeding filed pursuant to article ten or ten-A of this act is pending at the same time as a proceeding brought in the family court pursuant to this article, the court presiding over the proceeding under article ten or ten-A of this act may jointly hear the hearing on the custody and visitation petition under this article and the dispositional hearing on the petition under article ten or the permanency hearing under article ten-A of this act; provided, however, the court must determine the custody and visitation petition in accordance with the terms of this article.

 
Laws of 2015, Ch 447

Laws of 2015, Ch 447 amended Domestic Relations Law §237 (a) effective November 20, 2015, and applicable to all actions whenever commenced, to provide that an unrepresented litigant shall not be required to file an  affidavit  detailing  fee  arrangements  when making  an  application  for  an  award  of  counsel  fees and expenses. However, as a condition precedent to not being required to file such affidavit the unrepresented litigant must have submitted an affidavit that he or she  is  unable to  afford  counsel  with supporting proof, including a statement of net worth, and, if available, W-2 statements  and  income  tax  returns  for himself  or herself.  
According to the New York Assembly Memorandum in Support of the Legislation the purpose of the amendment was “to make clear that indigent pro se litigants may make an application for an award of fees necessary to obtain counsel without the formal requirement of an affidavit detailing fee arrangements with counsel, provided proof has been submitted of an inability to afford counsel.”



See Laws of 2015, Ch 269, which provides that section three of the act, which amended Domestic Relations Law 235[B][5-a] dealing with Temporary Maintenance Awards, “ shall take effect on the thirtieth day after it shall have become a law and shall apply to matrimonial actions commenced on or after such effective date.” The other sections of the Act are effective January 23, 2016.

Laws of 2015, Ch 387, approved October 26, 2015, effective January 24, 2016.

          The statutory provisions for child support have been amended to reflect the fact that spousal maintenance is money no longer available as income to the payor, but constitutes income to the payee,  so long as the order or agreement for such maintenance lasts.

           Domestic Relations Law § 240(1-b)(5)(iii) and Family Court Act § 413(1)(b)(5)(iii) were amended to add a new subclause (I) to each that requires that alimony or spousal maintenance actually paid to a spouse who is a party to the action must be added to the recipient spouse's income, provided that the order contains an automatic adjustment to take effect upon the termination of the maintenance award. According to the New York Assembly Memorandum in Support of Legislation this addition would be based upon an amount already paid, e.g., an amount reported on the recipient spouse's last income tax return, and would not simply be an estimate of future payments.

         Domestic Relations Law § 240(1-b)(5)(vii)(C) and Family Court Act § 413(1)(b)(5)(vii)(C) were amended to clarify that, where spousal maintenance payments are deducted from the payor's income, the order must contain a specific provision adjusting the child support amount automatically upon the termination of the spousal maintenance award. According to the New York Assembly Memorandum in Support of Legislation this relieves the custodial parent of the burden of moving for a modification of the child support order upon the termination of maintenance but leaves open the possibility for either or both parties to seek a modification of the automatic adjustment if, at the point where maintenance terminates, the income of either of the parties has changed in an amount that would qualify for modification under Family Court Act § 451(3)(b)(ii) or Domestic Relations Law § 236B(9)(b)(2)(ii), e.g., in excess of 15% or a lapse of three years or more. The specific adjustment in the amount of child support is without prejudice to either party's right to seek a modification in accordance with Family Court Act § 451(3) or Domestic Relations Law § 236B(9)(b)(2) with the proviso that in a subsequent action for modification, the inclusion of the specific adjustment shall not by itself constitute a "substantial change of circumstances."

          Laws of 2015, Ch 347, § 1 amended Social Services Law § 111-i to align the timing of the adjustment of the Combined Parental Income Adjustment with the adjustment of the poverty income guidelines amount for a single person and the self-support reserve.

Laws of 2015, Ch 369

Laws of 2015, Ch 369, § 2 repealed Article 5-B of the Family Court Act and enacted the 2008 version of the Uniform Interstate Family Support Act (UIFSA) as a new Article 5-B of the Family Court Act. Chapter 369 was signed into law on September 25, 2015. Section 1 is effective on December 24, 2015. New Article 5-B to the Family Court Act applies to any action or proceeding filed or order issued on or before the effective date of new Article 5-B, consistent with new section 580-903 of the Family Court Act which shall be effective on January 1, 2016.

Laws of 2015, Ch 269

Laws of 2015, Ch 269 amended Domestic Relations Law §236 [B][1][a], Domestic Relations Law §236 [B][5][d][7], Domestic Relations Law §236 [B][6], Domestic Relations Law § 248, Domestic Relations Law §236 [B][9][1], Family Court Act § 412, effective January 23, 2016, and amended Domestic Relations Law § 236 [B][5-a], effective October 25, 2015.


 Summary of the Amendments

          The amendments eliminated “enhanced earning capacity as a marital asset” for purposes of equitable distribution (Domestic Relations Law §236 [B] [5] [d] [7]) but did not eliminate as a factor the direct or indirect contributions to the development during the marriage of the enhanced earning capacity of the other spouse. They adopted mandatory guidelines with formulas for the calculation of maintenance and spousal support awards, (Domestic Relations Law §236 [B] [6] and Family Court Act § 412), added actual or partial retirement as a ground for modification of post-divorce maintenance where it results in a substantial diminution of income. (Domestic Relations Law §236 [B] [9] [1]) and made Domestic Relations Law § 248 gender neutral.

Income Cap Lowered

          The amendments lowered the income cap for the formula portion of temporary maintenance awards, (Domestic Relations Law § 236 [B] [5-a]) from the current $543,000 to $175,000 of the payor's income.
            An income cap of $175,000 cap applies to post-divorce maintenance awards and spousal support awards.

Temporary Maintenance

           There is a new formula for determining temporary maintenance.
In determining temporary maintenance, the court can allocate the responsibility for payment of specific family expenses between the parties.
            The temporary maintenance award must terminate no later than the issuance of a judgment of divorce or the death of either party. This amendment is intended to clarify that the Supreme Court has the power to limit the duration of temporary maintenance.

          New Formulas for Calculating Temporary Maintenance, Post-Divorce Maintenance and Spousal Support

There are now mandatory formulas for the calculation of maintenance and spousal support awards.
There are two formulas to be used in calculating maintenance and spousal support: one where child support will be paid and where the temporary maintenance payor, post-divorce maintenance payor or spousal support payor is also the non-custodial parent for child support purposes; and one where child support will not be paid, or where it will be paid but the temporary maintenance payor, post-divorce maintenance payor or spousal support payor is the custodial parent for child support purposes.
            Those formulas are as follows:
           a. With child support where the temporary maintenance payor, post-divorce maintenance payor or spousal support payor is also the non-custodial parent for child support purposes: (i) subtract 25% of the maintenance payee's income from 20% of the maintenance payor's income; (ii) multiply the sum of the maintenance payor's income and the maintenance payee's income by 40% and subtract the maintenance payee's income from the result; (iii) the lower of the two amounts will be the guideline amount of maintenance;
b. Without child support, or with child support but where the temporary maintenance payor, post-divorce maintenance payor or spousal support payor is the custodial parent for child support purposes:  (i) subtract 20% of the maintenance payee's income from 30% of the maintenance payor's income; (ii) multiply the sum of the maintenance payor's income and the maintenance payee's income by 40% and subtract the maintenance payee's income from the result; (iii) the lower of the two amounts will be the guideline amount of maintenance.

 Post-Divorce Maintenance Guidelines

          The definition of income for post-divorce maintenance includes income from income-producing property that is being equitably distributed.
Factors the court may consider in post-divorce maintenance now include termination of child support, and income or imputed income on assets being equitably distributed.  
           There is an “advisory” durational formula for determining the duration of post-divorce maintenance awards. However, nothing prevents the court from awarding non-durational, post-divorce maintenance in an appropriate case. In determining the duration of maintenance, the court is required to consider anticipated retirement assets, benefits and retirement eligibility age.
 Modification of Post-Divorce Maintenance
            Actual or partial retirement is a ground for modification of post-divorce maintenance assuming it results in a substantial diminution of income.
  Spousal Support Guidelines for Family Court
            Spousal support guidelines are established for Family Court using the same two formulas set forth for maintenance guidelines, as follows: one where child support will be paid and where the spousal support payor is also the non-custodial parent for child support purposes; and one where child support will not be paid, or where child support will be paid but the spousal support payor is the custodial parent for child support purposes. The $175,000 income cap applies.
The court may adjust the guideline amount of spousal support up to the income cap where it finds that the guideline amount of spousal support is unjust or inappropriate after consideration of one or more factors, which shall be set forth in the court's written or on the record decision.
Where there is income over the cap, additional spousal support may be awarded after consideration of one or more factors, which shall be set forth in the court's written or on the record decision.
           A new factor for the court to consider in spousal support awards as well as maintenance awards is termination of a child support award.
          The Family Court may modify an order of spousal support upon a showing of a substantial change in circumstances. Unless so modified, spousal support orders set pursuant to the guidelines shall continue until the earliest to occur of a written or oral stipulation/agreement on the record, issuance of a judgment of divorce or other order in a matrimonial proceeding, or the death of either party. This is not intended to change current law with respect to Family Court's ability to terminate spousal support. (See NY Legis. Memo 237 (2015)).

Effective Date


           The amendments become effective January 25, 2015 and apply to all matrimonial and Family Court actions for spousal support commenced on or after such effective date, including the provisions regarding post-divorce maintenance and spousal support awards. However, the provisions regarding temporary maintenance take effect October 25, 2015.

Court of Appeals Holds That There Is No Exception to Physician Patient Privilege for Abuse Admitted to Psychiatrist Even If a Patient Is Cognizant of Psychiatrist's Reporting Obligations under Child Protection Statutes



In People v. David Rivera, No. 20, NYLJ 1202725546913, at *1 (Ct. of App., Decided May 5, 2015) defendant, while seeking treatment from a psychiatrist, admitted to sexually abusing an 11year old relative. The psychiatrist notified the Administration for Children's Services (ACS) of defendant's admission. Following an in camera review of the records, Supreme Court held that the admissions defendant made to his psychiatrist were privileged because they were made in the course of diagnosis and treatment of his condition. However, the court, while refusing to allow "the full extent of defendant's admissions" to be used, held that, because the psychiatrist had disclosed the reported abuse to ACS, the fact that defendant had admitted to the abuse was admissible .The Court of Appeals held that the trial court's ruling ran afoul of the physician patient privilege (see CPLR 4504 [a]). It rejected the People’s claim that, because defendant's admission related to the sexual abuse of a child, it was not privileged since defendant had no reason to believe that it would remain confidential. The Court of Appeals held that regardless of whether a physician is required or permitted by law to report instances of abuse or threatened future harm to authorities, which may involve the disclosure of confidential information, it does not follow that such disclosure necessarily constitutes an abrogation of the evidentiary privilege a criminal defendant enjoys under CPLR 4504 (a).