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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