Second Department Holds That Party Seeking Counsel Fees must Demonstrate, Prima Facie, Attorney Substantially Complied with 22 NYCRR 1400.2 and 1400.3

 In Piza v Baez-Piza, --- N.Y.S.3d ----, 2016 WL 7224738, 2016 N.Y. Slip Op. 08384 (2d Dept.,2016) following a trial, the defendant sought additional attorney’s fees, and, the Supreme Court, inter alia, awarded the defendant the sum of $7,500 in attorney’s fees for legal services provided following the earlier award of $3,500 in attorney’s fees. The Appellate Division held that Supreme Court erred in awarding the defendant total attorney’s fees in excess of the $7,500 retainer that she paid to her attorney, as she did not demonstrate, prima facie, that her attorney substantially complied with 22 NYCRR 1400.2 and 1400.3 (see Vitale v. Vitale, 112 AD3d 614, 615). It modified the judgment to provide that the additional award of attorney’s fees for legal services provided following the prior award of $3,500 be limited to the sum of $4,000 (see Mulcahy v. Mulcahy, 285 A.D.2d 587, 588–589).

Appellate Division Considers Factor [6] “the existence and duration of a pre-marital joint household in awarding Maintenance

 In Kaprov v Stalinsky, --- N.Y.S.3d ----, 2016 WL 7380951, 2016 N.Y. Slip Op. 08509 (2d Dept., 2016) the husband argued, inter alia,  that as the Supreme Court had already ordered him to pay, pursuant to a pendente lite order, $3,000 per month in temporary maintenance retroactive to November 12, 2010, the date on which the wife filed her complaint seeking a divorce, the Court, in awarding maintenance for seven years from the date of judgment this effectively granted the wife an 11–year maintenance award, which is excessive in duration given that the marriage lasted only 12 years and the parties had no children together. The Appellate Division rejected this argument observing that a  party’s maintenance obligation is retroactive to the date the application for maintenance was first made (see Domestic Relations Law § 236[B][6][a] ). However, the party is also entitled to a credit for any amount of temporary maintenance ... already paid” (Huffman v. Huffman, 84 AD3d 875, 876). In arguing that the maintenance award was out of proportion to the duration of the marriage, the husband failed to recognize that, pursuant to the version of Domestic Relations Law § 236(B)(6)(a) in effect at the time of the commencement of this action, one of the factors a court should take into account in deciding the amount and duration of a maintenance award is “the existence and duration of a pre-marital joint household” (Domestic Relations Law § 236[B][6][a][6] ). The wife testified that the couple lived together from 1984 to 2010, approximately 26 years. Thus, an 11–year award of maintenance was not out of proportion with the duration of the joint household. The maintenance award was appropriate for the wife to become self-supporting given the factors involved, including the duration of the pre-marital joint household, as well as the wife’s age, absence from the workforce, reduced earning capacity, and limited education (see Domestic Relations Law § 236[B][6][a] ).

2017 Child Support Standards Chart Released

The 2017 combined parental income amount (“statutory cap”) is $143,000. The 2017 self-support reserve is $16,281 and the poverty income guidelines amount for a single person is $12,060.
See https://www.childsupport.ny.gov/child_support_standards.html
The child support standards chart, released March 17, 2017 is available at https://www.childsupport.ny.gov/dcse/pdfs/CSSA.pdf

Since January 31, 2016 the income cap of the maintenance payor for temporary and final (post-divorce) maintenance increased from $175,000 to $178,000 per year. By Administrative Order A/O 12/16, Revised Instructions and Forms for Use in Matrimonial Actions in Supreme Court were adopted effective January 31, 2016. The revised forms reflect the increase in the annual income cap of the maintenance payor for temporary and final (post-divorce) maintenance from $175,000 to $178,000 per year based on CPI increases as required by the 2015 Maintenance Guidelines Law (L. 2015, ch. 269), and clarify instructions regarding use of the UD-Packet forms. See http://www.nycourts.gov/divorce/legislationandcourtrules.shtml (last accessed April 1, 2017)

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