When preparing or the trial of any action, several questions must be posed and answered by counsel in order to define the burden of proof that has to be met in order to be successful. The two most important questions are what do I have to prove and how will I prove it?
Sub parts of this questions are:
What are my goals? i.e. ,Divorce, maintenance, child support, etc.)
What do I have to prove in order to attain these goals?
What are the elements of the cause(s) of action that I have to prove in order to make out a prima facie case for a divorce on the grounds of ______?
What do I have to prove in order to obtain an award of maintenance (child support, custody, exclusive occupancy, counsel fees, equitable distribution insurance)for my client?
How do I establish the necessity for an award of ____________?
What is the substantive law applicable to this claim?
What rules of practice or rules of evidence are applicable to this claim?
What testimonial evidence will I offer to establish this claim?
What documentary evidence will I offer to establish this claim?
Consideration should be given to these questions when preparing for trial, and during the trial.
Friday, November 03, 2006
What Should Be in a Marital Agreement - Checklist for Settlement of Divorce Case
"Opting-out" or "post-nuptial" agreements are agreements made between spouses during marriage when the prospect of divorce or dissolution is not a factor, or during a reconciliation after a separation.
"Separation" agreements, ‘stipulations of settlement”, and "property settlement agreements”, usually refer to agreements made before or during a separation of the spouses, or during litigation by spouses who are married and intend to live separate or dissolve their marriage. Each of these agreements governs the respective rights and obligations of spouses in the event of a dissolution. In this guide I refer to all of them as “marital agreements.”
Separation agreements differ from the other kinds of agreements because they are contracts between a husband and wife contemplating their living separate and apart. Two competent adults who have actually separated may enter into a valid separation agreement, placing financial responsibility according to their desires and means and a similar arrangement may be made between the parties where they have not yet actually separated, but in contemplation of the separation. The only effect of a separation or marital agreement is to modify the customary rights and duties of the spouses in the manner and extent provided in the agreement. A matrimonial agreement is to be interpreted just like any other agreement. The interpretation is measured by the understanding of the parties as expressed in the agreement. The rules applicable to separation agreements in general apply in construing and enforcing all matrimonial agreements. Where the terms of a marital agreement are clear, and only one reasonable interpretation can be given, that construction will be adopted.
The public policy of the state, as in most states, encourages those persons who are married or about to be married to "opt out" of the statutory system and to create their own provisions for support and property division upon the dissolution of a marriage.
An agreement made before or during the marriage is valid and enforceable in a matrimonial action if the agreement is in writing, voluntarily signed by the parties, and acknowledged. New York requires such agreements to be acknowledged or witnessed in the same form as necessary to entitle a deed to be recorded. These agreements may include a provision to make a testamentary provision or a waiver of any right to elect against the provisions of a will; provisions for the ownership, division or distribution of separate, or marital property; provisions for the amount and duration of maintenance or child support, and other terms and conditions related to the marriage relationship; and provisions for the custody, care, education and maintenance of any child of the parties.
New York state's public policy limits what may and may not be covered in these agreements, and should be given careful scrutiny before the drafting of any documents. In New York marriage is considered a relationship of the highest trust and confidence and agreements between spouses are subject to strict standards. Their terms must be fair and reasonable at the time of the making of the agreement. There are limitations upon what they can contain. To be enforceable and to "opt out" of the statutory system, the matrimonial agreement must not violate the declaration of public policy expressed in our statutes. For example, in New York parties are not free to waive their duty to provide support for the other if that party is about to become a public charge. The public policy of New York is to ensure that minor children receive adequate financial support from their parents. The terms of a settlement agreement must provide for the welfare of the children. An inadequate child support provision is usually voidable and cannot bind an appropriate court from remedying the inadequacy, nor can it bind a parent from seeking to remedy the inadequacy. New York prohibits parents from waiving child support or providing for arbitration of custody disputes. At most, parents may allocate custody rights and child support duties, so long as their terms are not detrimental to the welfare of the children.
Caution: New York law requires that child support agreements comply with the provisions of the Child Support Standards Act. While there is restricted freedom of the parties to contract regarding custody and child support, they have relative freedom to waive inheritance rights, to fix the amount and duration of maintenance, and to distribute property as they see fit, by an agreement.
Since well over 90 percent of matrimonial actions are settled before or during trial, the negotiation process is of critical importance. The process in and of itself pits the "haves" against the "have nots". The party who has the stronger bargaining leverage has a distinct advantage. The party who most wants a divorce starts negotiations with a distinct disadvantage. The party who has the ability to obtain a divorce has an advantage. The party who has the financial wherewithal to support litigation and to support him or herself has a distinct leg up. Statutes and court decisions during this critical period are significant insofar as they affect the probable outcome of the case by setting the boundaries for the bargaining. The matrimonial lawyer's estimate of what a court is likely to do under the facts of his or her case will go a long way in shaping the negotiations.
The coercive use of financial power as bargaining leverage, ordinarily by the husband, is matched to some extent by the wife-mother's dominion, generally speaking, over the children. During and after negotiations the custodial parent has the most to say about the quality and quantity of parent-child contacts with the other parent. The parent may sabotage that relationship. Oratory aside, the campaign to make joint or shared custody the norm, on the personal level, involves a struggle over bargaining leverage. For the past one hundred and fifty years in this country, a fit mother was awarded custody in nine out of ten cases and the father was relegated to "reasonable visitation." Today, we have the doctrine of the "more fit" parent. But times have changed and roles no longer are fixed and immutable. Over half of American wife-mothers are employed in the market place. Many husband-fathers are actively involved in child-rearing.
The wage discrimination against women in the market place still remains and employment opportunities for women are more limited, especially for those who have in the past concentrated on the difficult job of running the household and rearing children, and thus have lost meaningful career opportunities outside the home. Statistics show that following divorce the economic position of the former wife rapidly deteriorates while that of most former husbands substantially improves.
So the breadwinner and holder of the purse has and retains coercive bargaining leverage. That person in large measure, controls the bargaining process since it is that person who has the resources for continuing warfare in and out of court. The enemy may soon be exhausted and give in to despair.
The advantages or unfair bargaining leverage engendered by statutes or court decisions have a far greater impact than one would suppose. For one thing, such natural or unnatural advantages politicize the divorce process and distract us from the merits of the particular case or issue, and the rhetoric is heating up rather than cooling down as competing groups vie for more bargaining leverage and clout.
The protocol for the bargaining process calls for a willingness to be flexible and to make concessions where it matters least in order to obtain concessions that matter more. Parties are encouraged to reach an agreement and to settle between themselves. In this chapter I discuss the essential clauses that should be part of these agreements.
PREAMBLE
The preamble lists the date of the agreement, the names of the parties to the agreement and their addresses. A marital agreement should have a preamble, just like any other contract, reciting the names and addresses of the parties and the phrases used throughout the agreement to refer to them individually and jointly, if necessary.
RECITALS
An agreement should recite the date of the parties marriage, the names and dates of birth of their children, and whether they expect to have any more children. It may also contain a statement of the representations, if any that the parties are making to one another and an expression of the intention of the parties in entering into the agreement. The recitals are at the beginning of the matrimonial agreement before the statement of the consideration and are not part of it, although a court construing the agreement may consider them.
CONSIDERATION
All contracts must have some consideration, that is both parties must have obligations to the other. If there is no consideration for an agreement the agreement will usually not be valid because it will amount to nothing more than a promise to make a gift, which is not enforceable until the gift is given. The consideration for marital agreements are the mutual promises contained in the agreements. These agreements are generally authorized by the Domestic Relations Law of the particular state, as long as they comply with the statutory requirements. To the extent that an antenuptial agreement is executory, it must be supported by sufficient consideration. Generally, the marriage itself constitutes sufficient consideration for the promises of a spouse, although there may be other valuable consideration, such as mutual promises.
PURPOSE OF AGREEMENT
Sometimes the parties want to express in the body of the agreement, rather than in the recital, what their intentions are with regard to its provisions. This is where it should be done as it will become a part of the agreement.
SEPARATE RESIDENCE
In a separation agreement, a provision providing for the parties' separation must be in the agreement, (i.e., "The Parties will live separate and apart as if such parties were single and unmarried.") This is not, however, authorization to engage in adultery.
NON-MOLESTATION CLAUSE:
This clause requires each spouse to leave the other alone during the period of the parties' separation and not to interfere with the other or sue to compel a resumption of cohabitation. A provision against molestation in a separation agreement is an independent condition, and its breach does not terminate the agreement or relieve the other spouse from his or her obligations.
SEPARATE OWNERSHIP
The agreement should specify what property each party is to retain or receive. There should be a provision filling any gaps in case something is forgotten or inadvertently left out of the agreement. This provision covers the gap by making it clear that each party keeps what he has in his name, custody, possession or control at that time unless specifically stated otherwise.
DEBTS
The agreement should specify who is the party responsible for past, present and future debts. This clause specifies the division of obligations. It should also provide the penalty for a breach of its provisions.
MUTUAL RELEASES/GENERAL RELEASE:
The agreement should provide that each party releases and discharges the other, his/her heirs, executors, representatives, etc., from all past claims under law against the other (except, usually, causes of action for divorce, separation or breach of the agreement). A general release clause is the standard format for this provision.
MUTUAL WAIVER AND DISCHARGE OF RIGHTS IN ESTATES
Each party should waive the right to take an elective share against the estate of the other and to act as administrator or executor of the estate of the other, including the right to inherit from the other pursuant to a previously executed will. As the caption indicates, rights to a claim in the estate of the other party are waived. This provision does not in any way eliminate or reduce the rights of children.
CUSTODY
This custody provisions of a marital agreement should cover the type of custody (sole custody to the (Mother)(Father); joint custody; shared custody; physical custody;) as well as the visitation, parenting or access schedule. It should cover who picks up and returns the child, and specify when and where the child is to be picked up and returned . It should state that the child is not to be known by any other name, and cover telephone access; internet or e-mail communication and access; immediate notification to non-custodian of any emergencies or change of location; access to the child when the child is ill. Details as to dates and times of pick-up and return must be spelled out and may cover, for example: weekend parenting to the non-custodian (Friday night through Sunday night); weekday dinner or visit or overnight visit; alternate public and religious holidays, school recesses, summer vacation, father's day, mother's day; the child's birthday, and the parent’s birthdays. It should indicate if a parent may relocate and if the custodial parent is to be restricted to a state or mile radius.
It is not considered consulting if the custodial parent makes the ultimate decision when the parties are unable to agree. Joint decision making means the parents must agree or resolve it through court or arbitration proceedings. Areas to consider include: Education, legal, religion, health, confirmation, and Bar/Bat Mitzvah.
SUPPORT AND MAINTENANCE OF THE SPOUSE
A key to this provision is to be explicit concerning the amount and duration of maintenance. This may be or may include a weekly or monthly cash allowance which separates maintenance from child support for tax purposes. Termination events should be clear and specific. Generally, maintenance continues during the payor's lifetime until either the death or remarriage of the recipient, whichever is earlier, or the termination of the obligation period to pay maintenance.
In general, a provision in a judgment in a matrimonial action for maintenance does not survive the death of the payor, nor of the recipient. The support obligation does not survive the death of the husband in the absence of an agreement by the parties and upon the death of either spouse the obligation of support and maintenance ceases. However, by agreement of the parties, alimony payments may be extended beyond the death of the obligor so as to be enforceable against his or her estate. This can only be done by agreement of the parties and not by direction of the court.
Where a final judgment of divorce or a final judgment of annulment or declaration of nullity has been rendered, which contains an alimony award, the court, upon application of the obligor on notice, and upon proof of the marriage of the recipient after the final judgment, must annul the alimony award. Where a wife's second marriage has been declared a nullity or annulled by a judgment, the obligation of the first husband to pay alimony to his former wife is not revived.
The Court has discretion to terminate a prior maintenance or alimony order "upon proof that the wife [or former wife] is habitually living with another man and holds herself out to be his wife, although not married to such man." In general, the alimony or maintenance provisions of an agreement which are incorporated into a dissolution judgment and not merged into it remain in effect even though relief is obtained pursuant to New York Domestic Relations Law, Section 248.
To assure that maintenance payments are deductible the payments must terminate on the death of the payee. Other elements of support include: automobile expenses, costs of operating the marital home, exclusive occupancy, credit cards, cobra, medical, hospital, psychiatric, orthodontic, pharmacy and dental Expenses and/or Insurance Coverage.
CHILD SUPPORT
Where an agreement makes provision for child support, the paying spouse's obligation ordinarily terminates upon the children becoming emancipated or reaching their majority, which is 21 in New York, unless the contract provides that his or her obligation of support will continue after the age of 21 or the emancipation of the child. The fact that a child has been inducted into the Armed Forces does not release the paying parent from the performance of his or her obligation under the terms of a separation agreement to make specified payments for the support of the child. The fact that children have been emancipated before reaching age 21 does not release the paying parent from his or her obligation to support them under the terms of a marital agreement, unless the agreement provides that emancipation will have such effect.
Parents can not contract away their children's right to receive adequate support. They never could. A separation agreement cannot eliminate or diminish either parents duty to support their child. The initial adequacy of an agreement may be challenged at any time. The terms of an inadequate child support provision in an agreement do not bind the court or the child and cannot support a civil action for breach of contract . An agreement to waive the right to initially seek or obtain a modification of child support violates public policy and is void .
EDUCATION
The parties should provide in the agreement, where appropriate, for private school, university or college, professional or graduate school, if any. Often the terms include the requirement of the payor's consent to the choice of school, which consent will not be unreasonably withheld. Exactly what expenses are included should be detailed in the Agreement.
SUMMER CAMP
This clause usually provides for the payor to pay for a camp, teen tour, or summer activity, provided the payor is consulted in advance and consents to it, which consent will not be unreasonably withheld). The exact expenses included must be detailed in the Agreement.
MEDICAL, HOSPITAL, PSYCHIATRIC, ORTHODONTIC, PHARMACY AND DENTAL EXPENSES AND INSURANCE COVERAGE
This section usually provides that one or both parties payor will pay for medical, hospital or dental insurance for the child (comparable to that which presently exists). In addition, the payor will generally pay all reasonable and necessary medical, dental and hospital expenses for the unemancipated child; this may or may not include cosmetic or elective treatment/surgery, unless the payor is consulted and agrees. The custodial parent must comply with all requests for documentation. Again, the custom is, except
for emergencies, that the custodial parent must obtain the payor's approval before committing the child to a course of care or treatment.
EMANCIPATION
The Agreement should provide the age at which child support payments terminate if sooner than age 21. Where an agreement makes provision for the support of the children of the marriage, the paying spouse's obligation for each child, respectively, terminates upon each child attaining age 21. Child support obligations beyond age 21 cannot be compelled unless the contract provides that a parent's obligation of support will continue to a later date.
CHILD SUPPORT STANDARDS ACT
New York law requires that the parties must be advised of the provisions of the New York Child Support Standards Act (“CSSA”) as contained in New York Domestic Relations Law §240(1-b) and New York Family Court Act §413(1)(b). They must also have been advised that a child support agreement which departs from the child support guidelines must provide that the parties have been made aware of the Child Support Standards Act (CSSA) and that the parties are aware that the application of the CSSA guidelines would result in the calculation of the presumptively correct amount of child support. The agreement must also include the dollar amount of the presumptively correct support that would have been calculated pursuant to the CSSA, and must state the parties' reasons for the parties’ departure from the guidelines. Even an agreement which does not opt-out of the CSSA guidelines is required to provide that the parties have been made aware of the CSSA and that they were aware that the application of the CSSA guidelines would result in the calculation of the presumptively correct amount of child support. The parties may expressly waive the provisions of the CSSA to the extent permitted by law.
The parties must have also been advised that the "basic child support obligation" provided in New York Domestic Relations Law §240(1-b) and New York Family Court Act §413(1)(b) would presumptively result in the correct amount of child support to be awarded. In the event that the settlement agreement or stipulation deviates from the "basic child support obligation", the foregoing statutes require this Agreement or Stipulation to specify the amount that such "basic child support obligation" would have been and the reason or reasons that such Agreement or Stipulation does not provide for payment of that amount, in order to assure that the parties are aware of their rights and obligations under the Child Support Standards Act and knowingly waive such rights. Such provision may not be waived by either party or counsel.
The Child Support Standards Act provides that nothing contained in section 240(1-b)(b)(h) and New York Family Court Act §413(1)(h) shall be construed to alter the rights of the parties to enter into validly executed Agreements or Stipulations which deviate from the "basic child support obligation" provided such Agreements or Stipulations comply with the provisions of New York Domestic Relations Law §240(1-b)(h) and New York Family Court Act §413(1)(b)(h).
New York Domestic Relations Law Section 240(1-b) and New York Family Court Act §413(1)(b) provide the court shall calculate the "basic child support obligation", and the non-custodial parent's pro rata share of the basic child support obligation. Unless the court finds that the non-custodial parent's pro rata share of the basic child support obligation is unjust or inappropriate, after considering ten enumerated factors, it must order the non-custodial parent to pay his or her pro rata share of the "basic child support obligation. In arriving at the "basic child support obligation" the Court must calculate the "combined parental income" and multiply it by the appropriate "child support percentage." The "child support percentage" is defined as: 17% of the combined parental income for one child; 25% of the combined parental income for two children; 29% of the combined parental income for three children; 31% of the combined parental income for four children; and no less than 35% of the combined parental income for five or more children. Where there are five or more children, the court must exercise its discretion as to the amount of the child support percentage. Where the combined parental income exceeds $80,000 per year, after the court determines the non-custodial parent's share of the basic child support obligation, it must next determine the amount of child support for the amount of combined parental income in excess of $80,000. It may do so, in the exercise of its discretion, through consideration of ten discretionary factors and/or the child support percentage. There are two additional items of support which are part of and which the court must consider in determining the "basic child support obligation" and two items it may consider in determining the non-custodial parent's share of the "basic child support obligation." When a custodial parent is working or receiving education leading to employment, reasonable child care expenses must be apportioned pro rata, in the same proportion as each parent's income is to the combined parental income. Health care expenses must also be apportioned pro rata in the same proportion as each parent's income is to the combined parental income. If the custodial parent is seeking work, child care expenses as a result thereof may be apportioned. Educational expenses may also be awarded. They need not be apportioned. These expenses are discretionary and not based on a percentage of $80,000. Child care expenses for seeking work and educational expenses need not be awarded in proportion to the combined parental income.
If a party is unrepresented party he/she is required to receive a copy of the Child Support Standards Chart promulgated by Commissioner of Social Services pursuant to New York Social Services Law Section 111-I. The parties may, in their agreement, waive the right to collect the child support payments by an income deduction order, and waive the right to enforce the provisions of the agreement through Child Support Enforcement Services.
LIFE INSURANCE
Generally, a spouse purchases or maintains an existing policy of life insurance for the benefit of the child in an agreed upon amount (usually sufficient to cover the child support obligations for the child unless otherwise provided by will). It is not unusual for life insurance to be purchased or maintained for the payor's maintenance obligations or obligations to pay out a cash sum over a period of time. Provision must be made to verify that the insurance remains in effect and the premiums paid.
PROPERTY DISTRIBUTION - EQUITABLE DISTRIBUTION AND/OR DISTRIBUTIVE AWARD
Equitable distribution is a tax-free distribution not included in the income of the recipient or deductible to the payor. Furthermore, pension and retirement funds can be transferred to the recipient by a Qualified Domestic Relations Order ("QDRO"), leaving its retirement nature intact while avoiding violation of the anti-alienation provisions of ERISA, with its resultant penalties and taxes to the transferor. Likewise, the recipient will take the transferor's basis in any real property, recognizing the gain only at the time of the sale to a third party and only to the extent it has appreciated since the time of purchase (not the date of transfer). The transfer of appreciated property is considered a gift for tax purposes. Other items to consider, for example:
Cash
Consider an installment payment arrangement versus a lump sum. Assuming a lump sum arrangement is preferred, be specific on the date it is to be given and its form (check, wire transfer or change of title on account).
Stocks and Bonds
Be sure the value placed has a date, an approximate value and an understanding that fluctuations in valuation are not a basis for claiming fraud.
Jewelry
Must be itemized. Indicate its description, purchase price, market value, source of funds, separate or personal and total value.
Art
Must be itemized. Indicate its description, purchase price, market value, present location.
Automobiles
Indicate whether the recipient is (or is not) responsible for all expenses attendant to the operation of the automobile, including insurance, upkeep, gasoline.
Real Property
Indicate if title and possession are to be transferred to the husband/wife or sold. Specify who pays the cost of the transfer. If a joint tenancy or tenancy in common and title is transferred to one spouse, provide for relinquishment of all claims and rights to the property and release the transferor from all notes and obligations attributable to the property. A hold harmless clause should be employed as well as an agreement for a
party to use his/her best efforts to have her/him removed as obligor. If the property is to be sold, specify the details of sale, sale price, costs, brokers, expenses, legal fees.
Real Estate Considerations in General:
Properties held jointly reverts to the survivor should one party die before the dissolution of the marriage. To alter this situation you may change the manner in which title is held immediately upon execution of the Agreement, but you must specifically provide for this in the Agreement. It is recommended to have the transfer documents executed simultaneously with the Agreement. All real property transferred, if any, must provide for the tax consequences, costs of sale and carrying costs.
Exclusive Occupancy of the marital residence
Be sure that the occupant is obligated to remove himself/herself by a date certain. If the residence is to be sold, he/she must agree to leave the premises a certain number of days from the execution of a contract for sale of the premises. Specify who is responsible for any expenses attendant to operating the home. Make provisions for penalty upon failure to leave. Consider who will pay the moving costs and arrange the move. Make provisions to access the premises for inspection or otherwise. Photographing or videotaping the premises before leaving the premises is wise.
Personal Property.
Make lists, lists, lists and more lists of who gets what. The knickknacks, bric-a-brac, crystal, china, furniture and the like are nightmarish to divide, so forgotten items may be gone forever.
Pension Plans and Retirement Funds
Generally, transferring a portion of these funds to the spouse as part of the Equitable Distribution is advantageous, as previously noted. The transferee receives the retirement funds on a tax-free basis. They continue to accumulate tax free until distribution to him/her from the plan. The transferor makes the transfer tax-free and has no penalty. It is important to net out the value of this tax free exchange in calculating the Equitable Distribution.
INCOME TAX RETURNS AND REFUNDS
The agreement should provide who is responsible for errors, omissions, penalties, assessments, and interest on previously filed joint income tax returns and the costs associated with opposing or defending an audit or assessment, including accounting fees. So long as the parties remain married, they can and should file joint tax returns. Determine how the refund, if any, is going to be distributed. Make provision as to who claims the child(ren) as an exemption. Unless provided otherwise in writing, the custodial parent is entitled to the exemption. To do otherwise, the custodial parent must sign IRS form 8332 to entitle the non-custodial parent to the exemption.
LEGAL REPRESENTATION AND DISCLOSURE
The agreement should include the name and address of the attorneys who represented each of the parties and a statement that each counsel was chosen freely. It should indicate that each party had an opportunity to obtain independent tax advice. The parties should acknowledge the extent of the financial disclosure provided and /or the opportunities for disclosure of the assets and income of each party. It is suggested, at a minimum, that each party provide a Net Worth Statement.
LEGAL FEES
If one party is to contribute, partially or wholly, to the legal fees of the other, it is generally best for the payor to contribute a lump sum amount on behalf of the recipient's legal fees in payment of the litigation or for the negotiation of the agreement, and any subsequent action for dissolution. The recipient should hold the payor harmless for any other fees and the recipient's lawyer should be required to waive all other claims for the legal fees for the agreement or dissolution proceedings against the payor.
RELIGIOUS DIVORCE:
Both parties should agree (if relevant) to this provision if they were married in a religious ceremony because it is required by law in states such as New York. The agreement should make provision for obtaining the religious divorce by a specific date, for the payment of the costs and fees, and to require that both spouses cooperate with the religious authority.
MUTUAL WAIVERS OF OTHER ASSETS AND MAINTENANCE:
Except as provided in the agreement, each spouse should specifically waive all rights and interests, if any, to the other's businesses, licenses, professional degrees and other assets, real and personal, in that party's possession, custody or control, whether or not mentioned in the agreement. If maintenance is not being paid there should be mutual waivers of maintenance, so that an application may not be made for maintenance after the parties are separated or divorced. The same holds true with regard to retirement benefits, pensions and counsel fees.
RELIANCE UPON FINANCIAL DISCLOSURE
1. The parties have been advised at length by their respective counsel as to their rights and obligations under the "Equitable Distribution Law", New York Domestic Relations Law Section 236[B]. Each of them has been specifically advised as to his or her rights as to full disclosure from the other party concerning the income, prospects, holdings, assets and liabilities of the other under the terms of that statute and of the relevant case law.
2. Each of the parties has provided information to the other to prepare a joint statement of net worth, a copy of which is annexed hereto wherein each one of them has represented to the other, the state of their finances and the status of their assets and debts, and upon which each has relied in the execution of this Agreement. The Wife has relied upon the Husband's representation as to his income and assets, as set forth in such joint net worth statement, in executing this Agreement.
RECONCILIATION
Under certain circumstances, an agreement will be repudiated where the parties reconcile and resume cohabitation. There should be a provision that the agreement shall not be invalidated or otherwise affected by a reconciliation between the parties or by a resumption of the marital relations between them, unless the reconciliation or resumption is documented by a written statement signed and acknowledged by the parties.
VOLUNTARY EXECUTION
The agreement should contain a provision acknowledging that each party had full knowledge and understanding of all of its provisions, and an opportunity to question his/her attorney with regard to the provisions of the agreement. The parties should acknowledge that the terms of the agreement have been explained to them and it is fair and was freely entered into, and is not the result of any fraud, duress or undue influence exercised by either party upon the other.
PENDING ACTIONS
The agreement should provide for the withdrawal an discontinuance of any other pending actions between the parties, with prejudice, and, if the parties intend to obtain a divorce or dissolution, for one of the parties to proceed to obtain a dissolution .
SUBSEQUENT ACTION TO SET ASIDE OR MODIFY
The parties may agree that in the event that either party brings an action or proceeding to cancel or set aside the agreement, or applies to any court for an extension or upward modification of either or both the maintenance and child support provisions of the agreement, whether successful or not, he/she will reconvey all assets he/she received under the agreement. The purpose of this clause is, obviously, to prevent a challenge to the agreement, and it will not be enforced if the court holds that the agreement is void.
BOILERPLATE CLAUSES
The term "boilerplate clauses" refers to the usual, commonly used clauses that are almost always found in matrimonial agreements.
SEVERABILITY
The agreement should contain a provision stating that if any part of the Agreement is held void or unenforceable, the balance of it will remain in full force and effect. Without such a clause, if a material provision or dependent clause of an agreement that does not have a severability clause is held void, the entire agreement may be declared void.
BINDING EFFECT
The agreement should contain a provision stating that, except as otherwise stated in the agreement, all the provisions of the agreement shall be binding upon the respective heirs, next of kin, executors and administrators of the parties.
CHANGE OF ADDRESS
As long as the parties have rights and obligations toward one another, or children who are unemancipated, they must be able to communicate with one another. The agreement should require them to notify each other of their change of address and telephone number so long as they have such obligations.
NOTICES
The agreement should contain a provision indicating the addresses to send any future notices required by the agreement.
MODIFICATION AND WAIVER
The agreement should contain a provision setting forth the formalities with which the parties must comply (such as a written and acknowledged change) to amend or modify the agreement or waive any of its terms. It should specificy that any waiver is not a
continuing waiver and shall not prevent or estop such party from thereafter enforcing such provision, right or option. The failure of either party to insist in any one or more instances upon the strict performance of any of the terms or provisions of this agreement by the other party shall not be construed as a waiver or relinquishment for the future of any such term or provision, but the same shall continue in full force and effect.
INDEPENDENT COVENANTS
The agreement should contain a provision stating that each clause of the agreement is independent of and may be enforced independently of any other clause. This permits enforcement of the balance of the agreement even after the breach of a particular provision, and a party who has breached a portion of the agreement may continue to seek enforcement of the balance of the agreement.
LEGAL INTERPRETATION
The agreement should contain a provision setting forth the law which shall apply
to the interpretation and construction of the agreement.
In the absence of anything evincing a contrary intention of the parties or violating the public policy of the state, the validity, effect, and construction of a separation agreement is governed by the law of the place where the contract was made, particularly where this place and the matrimonial domicil are the same.
The intention of the parties as to the law governing the validity, construction, and effect of a marital agreement will be respected in the absence of anything violating the public policy of the state.
FURTHER INSTRUMENTS
The agreement should contain a provision that each party will execute and deliver all documents and take all further steps as are necessary to effectuate the terms of the agreement, usually at no cost to the other party.
ENTIRE UNDERSTANDING
The agreement should contain a provision that it is the complete agreement between the parties, and that there are no side deals, and there are no representations, other than as set forth in the agreement, that are relied upon by either party.
EFFECT OF INCORPORATION OF AGREEMENT INTO JUDGMENT
Incorporation by Reference: A provision regarding the incorporation of the terms of the agreement in a judgment of dissolution or support order, in the event of a divorce, dissolution or support proceeding. This is extremely important to include.
Survival or Merger: A provision indicating the intent of the parties as to whether the agreement survives or merges into a subsequent judgment of dissolution. If it survives, modification may be limited by state law.
Contractual terms as to property settlements ordinarily are not subject to judicial change. Courts will not "rewrite" the maintenance provisions agreement unless there is a finding of existing hardship under DRL 236(B)(9)(b). When an agreement that has been incorporated into a dissolution judgment, if enforcement or modification is sought does the agreement still exist or was it merged into the judgment? The answer depends upon the intention of the parties as expressed in the agreement. Usually a matrimonial agreement provides that its terms shall be incorporated into the court order or judgment but that the agreement shall survive. However, an agreement may say nothing and may cease to exist after judgment. The traditional advantage to the wife of having the agreement survive was that in the event the husband failed to perform the contract, it gave her a more expeditious remedy of suit on the contract in addition to the special relief provided for the enforcement of judgments in the New York Domestic Relations Law and other statutes.
The advantage to the husband if the agreement survived was that ordinarily it precluded an upward modification of alimony/maintenance (due to a change in circumstances) so that his financial obligation was relatively fixed and certain, unless the former wife became destitute and was a candidate for public assistance.Again, the intention of the parties controls whether the agreement is merged into the judgment or is merely incorporated therein and survives intact.
COUNSEL FEES IN EVENT OF DEFAULT
The agreement should contain a provision that a party who is in default of his/her obligations under the agreement will be liable for the counsel fees and expenses of the other party incurred to enforce the agreement in a plenary action. Without such a provision, counsel fees might not be awarded in any plenary action to enforce the agreement.
"Separation" agreements, ‘stipulations of settlement”, and "property settlement agreements”, usually refer to agreements made before or during a separation of the spouses, or during litigation by spouses who are married and intend to live separate or dissolve their marriage. Each of these agreements governs the respective rights and obligations of spouses in the event of a dissolution. In this guide I refer to all of them as “marital agreements.”
Separation agreements differ from the other kinds of agreements because they are contracts between a husband and wife contemplating their living separate and apart. Two competent adults who have actually separated may enter into a valid separation agreement, placing financial responsibility according to their desires and means and a similar arrangement may be made between the parties where they have not yet actually separated, but in contemplation of the separation. The only effect of a separation or marital agreement is to modify the customary rights and duties of the spouses in the manner and extent provided in the agreement. A matrimonial agreement is to be interpreted just like any other agreement. The interpretation is measured by the understanding of the parties as expressed in the agreement. The rules applicable to separation agreements in general apply in construing and enforcing all matrimonial agreements. Where the terms of a marital agreement are clear, and only one reasonable interpretation can be given, that construction will be adopted.
The public policy of the state, as in most states, encourages those persons who are married or about to be married to "opt out" of the statutory system and to create their own provisions for support and property division upon the dissolution of a marriage.
An agreement made before or during the marriage is valid and enforceable in a matrimonial action if the agreement is in writing, voluntarily signed by the parties, and acknowledged. New York requires such agreements to be acknowledged or witnessed in the same form as necessary to entitle a deed to be recorded. These agreements may include a provision to make a testamentary provision or a waiver of any right to elect against the provisions of a will; provisions for the ownership, division or distribution of separate, or marital property; provisions for the amount and duration of maintenance or child support, and other terms and conditions related to the marriage relationship; and provisions for the custody, care, education and maintenance of any child of the parties.
New York state's public policy limits what may and may not be covered in these agreements, and should be given careful scrutiny before the drafting of any documents. In New York marriage is considered a relationship of the highest trust and confidence and agreements between spouses are subject to strict standards. Their terms must be fair and reasonable at the time of the making of the agreement. There are limitations upon what they can contain. To be enforceable and to "opt out" of the statutory system, the matrimonial agreement must not violate the declaration of public policy expressed in our statutes. For example, in New York parties are not free to waive their duty to provide support for the other if that party is about to become a public charge. The public policy of New York is to ensure that minor children receive adequate financial support from their parents. The terms of a settlement agreement must provide for the welfare of the children. An inadequate child support provision is usually voidable and cannot bind an appropriate court from remedying the inadequacy, nor can it bind a parent from seeking to remedy the inadequacy. New York prohibits parents from waiving child support or providing for arbitration of custody disputes. At most, parents may allocate custody rights and child support duties, so long as their terms are not detrimental to the welfare of the children.
Caution: New York law requires that child support agreements comply with the provisions of the Child Support Standards Act. While there is restricted freedom of the parties to contract regarding custody and child support, they have relative freedom to waive inheritance rights, to fix the amount and duration of maintenance, and to distribute property as they see fit, by an agreement.
Since well over 90 percent of matrimonial actions are settled before or during trial, the negotiation process is of critical importance. The process in and of itself pits the "haves" against the "have nots". The party who has the stronger bargaining leverage has a distinct advantage. The party who most wants a divorce starts negotiations with a distinct disadvantage. The party who has the ability to obtain a divorce has an advantage. The party who has the financial wherewithal to support litigation and to support him or herself has a distinct leg up. Statutes and court decisions during this critical period are significant insofar as they affect the probable outcome of the case by setting the boundaries for the bargaining. The matrimonial lawyer's estimate of what a court is likely to do under the facts of his or her case will go a long way in shaping the negotiations.
The coercive use of financial power as bargaining leverage, ordinarily by the husband, is matched to some extent by the wife-mother's dominion, generally speaking, over the children. During and after negotiations the custodial parent has the most to say about the quality and quantity of parent-child contacts with the other parent. The parent may sabotage that relationship. Oratory aside, the campaign to make joint or shared custody the norm, on the personal level, involves a struggle over bargaining leverage. For the past one hundred and fifty years in this country, a fit mother was awarded custody in nine out of ten cases and the father was relegated to "reasonable visitation." Today, we have the doctrine of the "more fit" parent. But times have changed and roles no longer are fixed and immutable. Over half of American wife-mothers are employed in the market place. Many husband-fathers are actively involved in child-rearing.
The wage discrimination against women in the market place still remains and employment opportunities for women are more limited, especially for those who have in the past concentrated on the difficult job of running the household and rearing children, and thus have lost meaningful career opportunities outside the home. Statistics show that following divorce the economic position of the former wife rapidly deteriorates while that of most former husbands substantially improves.
So the breadwinner and holder of the purse has and retains coercive bargaining leverage. That person in large measure, controls the bargaining process since it is that person who has the resources for continuing warfare in and out of court. The enemy may soon be exhausted and give in to despair.
The advantages or unfair bargaining leverage engendered by statutes or court decisions have a far greater impact than one would suppose. For one thing, such natural or unnatural advantages politicize the divorce process and distract us from the merits of the particular case or issue, and the rhetoric is heating up rather than cooling down as competing groups vie for more bargaining leverage and clout.
The protocol for the bargaining process calls for a willingness to be flexible and to make concessions where it matters least in order to obtain concessions that matter more. Parties are encouraged to reach an agreement and to settle between themselves. In this chapter I discuss the essential clauses that should be part of these agreements.
PREAMBLE
The preamble lists the date of the agreement, the names of the parties to the agreement and their addresses. A marital agreement should have a preamble, just like any other contract, reciting the names and addresses of the parties and the phrases used throughout the agreement to refer to them individually and jointly, if necessary.
RECITALS
An agreement should recite the date of the parties marriage, the names and dates of birth of their children, and whether they expect to have any more children. It may also contain a statement of the representations, if any that the parties are making to one another and an expression of the intention of the parties in entering into the agreement. The recitals are at the beginning of the matrimonial agreement before the statement of the consideration and are not part of it, although a court construing the agreement may consider them.
CONSIDERATION
All contracts must have some consideration, that is both parties must have obligations to the other. If there is no consideration for an agreement the agreement will usually not be valid because it will amount to nothing more than a promise to make a gift, which is not enforceable until the gift is given. The consideration for marital agreements are the mutual promises contained in the agreements. These agreements are generally authorized by the Domestic Relations Law of the particular state, as long as they comply with the statutory requirements. To the extent that an antenuptial agreement is executory, it must be supported by sufficient consideration. Generally, the marriage itself constitutes sufficient consideration for the promises of a spouse, although there may be other valuable consideration, such as mutual promises.
PURPOSE OF AGREEMENT
Sometimes the parties want to express in the body of the agreement, rather than in the recital, what their intentions are with regard to its provisions. This is where it should be done as it will become a part of the agreement.
SEPARATE RESIDENCE
In a separation agreement, a provision providing for the parties' separation must be in the agreement, (i.e., "The Parties will live separate and apart as if such parties were single and unmarried.") This is not, however, authorization to engage in adultery.
NON-MOLESTATION CLAUSE:
This clause requires each spouse to leave the other alone during the period of the parties' separation and not to interfere with the other or sue to compel a resumption of cohabitation. A provision against molestation in a separation agreement is an independent condition, and its breach does not terminate the agreement or relieve the other spouse from his or her obligations.
SEPARATE OWNERSHIP
The agreement should specify what property each party is to retain or receive. There should be a provision filling any gaps in case something is forgotten or inadvertently left out of the agreement. This provision covers the gap by making it clear that each party keeps what he has in his name, custody, possession or control at that time unless specifically stated otherwise.
DEBTS
The agreement should specify who is the party responsible for past, present and future debts. This clause specifies the division of obligations. It should also provide the penalty for a breach of its provisions.
MUTUAL RELEASES/GENERAL RELEASE:
The agreement should provide that each party releases and discharges the other, his/her heirs, executors, representatives, etc., from all past claims under law against the other (except, usually, causes of action for divorce, separation or breach of the agreement). A general release clause is the standard format for this provision.
MUTUAL WAIVER AND DISCHARGE OF RIGHTS IN ESTATES
Each party should waive the right to take an elective share against the estate of the other and to act as administrator or executor of the estate of the other, including the right to inherit from the other pursuant to a previously executed will. As the caption indicates, rights to a claim in the estate of the other party are waived. This provision does not in any way eliminate or reduce the rights of children.
CUSTODY
This custody provisions of a marital agreement should cover the type of custody (sole custody to the (Mother)(Father); joint custody; shared custody; physical custody;) as well as the visitation, parenting or access schedule. It should cover who picks up and returns the child, and specify when and where the child is to be picked up and returned . It should state that the child is not to be known by any other name, and cover telephone access; internet or e-mail communication and access; immediate notification to non-custodian of any emergencies or change of location; access to the child when the child is ill. Details as to dates and times of pick-up and return must be spelled out and may cover, for example: weekend parenting to the non-custodian (Friday night through Sunday night); weekday dinner or visit or overnight visit; alternate public and religious holidays, school recesses, summer vacation, father's day, mother's day; the child's birthday, and the parent’s birthdays. It should indicate if a parent may relocate and if the custodial parent is to be restricted to a state or mile radius.
It is not considered consulting if the custodial parent makes the ultimate decision when the parties are unable to agree. Joint decision making means the parents must agree or resolve it through court or arbitration proceedings. Areas to consider include: Education, legal, religion, health, confirmation, and Bar/Bat Mitzvah.
SUPPORT AND MAINTENANCE OF THE SPOUSE
A key to this provision is to be explicit concerning the amount and duration of maintenance. This may be or may include a weekly or monthly cash allowance which separates maintenance from child support for tax purposes. Termination events should be clear and specific. Generally, maintenance continues during the payor's lifetime until either the death or remarriage of the recipient, whichever is earlier, or the termination of the obligation period to pay maintenance.
In general, a provision in a judgment in a matrimonial action for maintenance does not survive the death of the payor, nor of the recipient. The support obligation does not survive the death of the husband in the absence of an agreement by the parties and upon the death of either spouse the obligation of support and maintenance ceases. However, by agreement of the parties, alimony payments may be extended beyond the death of the obligor so as to be enforceable against his or her estate. This can only be done by agreement of the parties and not by direction of the court.
Where a final judgment of divorce or a final judgment of annulment or declaration of nullity has been rendered, which contains an alimony award, the court, upon application of the obligor on notice, and upon proof of the marriage of the recipient after the final judgment, must annul the alimony award. Where a wife's second marriage has been declared a nullity or annulled by a judgment, the obligation of the first husband to pay alimony to his former wife is not revived.
The Court has discretion to terminate a prior maintenance or alimony order "upon proof that the wife [or former wife] is habitually living with another man and holds herself out to be his wife, although not married to such man." In general, the alimony or maintenance provisions of an agreement which are incorporated into a dissolution judgment and not merged into it remain in effect even though relief is obtained pursuant to New York Domestic Relations Law, Section 248.
To assure that maintenance payments are deductible the payments must terminate on the death of the payee. Other elements of support include: automobile expenses, costs of operating the marital home, exclusive occupancy, credit cards, cobra, medical, hospital, psychiatric, orthodontic, pharmacy and dental Expenses and/or Insurance Coverage.
CHILD SUPPORT
Where an agreement makes provision for child support, the paying spouse's obligation ordinarily terminates upon the children becoming emancipated or reaching their majority, which is 21 in New York, unless the contract provides that his or her obligation of support will continue after the age of 21 or the emancipation of the child. The fact that a child has been inducted into the Armed Forces does not release the paying parent from the performance of his or her obligation under the terms of a separation agreement to make specified payments for the support of the child. The fact that children have been emancipated before reaching age 21 does not release the paying parent from his or her obligation to support them under the terms of a marital agreement, unless the agreement provides that emancipation will have such effect.
Parents can not contract away their children's right to receive adequate support. They never could. A separation agreement cannot eliminate or diminish either parents duty to support their child. The initial adequacy of an agreement may be challenged at any time. The terms of an inadequate child support provision in an agreement do not bind the court or the child and cannot support a civil action for breach of contract . An agreement to waive the right to initially seek or obtain a modification of child support violates public policy and is void .
EDUCATION
The parties should provide in the agreement, where appropriate, for private school, university or college, professional or graduate school, if any. Often the terms include the requirement of the payor's consent to the choice of school, which consent will not be unreasonably withheld. Exactly what expenses are included should be detailed in the Agreement.
SUMMER CAMP
This clause usually provides for the payor to pay for a camp, teen tour, or summer activity, provided the payor is consulted in advance and consents to it, which consent will not be unreasonably withheld). The exact expenses included must be detailed in the Agreement.
MEDICAL, HOSPITAL, PSYCHIATRIC, ORTHODONTIC, PHARMACY AND DENTAL EXPENSES AND INSURANCE COVERAGE
This section usually provides that one or both parties payor will pay for medical, hospital or dental insurance for the child (comparable to that which presently exists). In addition, the payor will generally pay all reasonable and necessary medical, dental and hospital expenses for the unemancipated child; this may or may not include cosmetic or elective treatment/surgery, unless the payor is consulted and agrees. The custodial parent must comply with all requests for documentation. Again, the custom is, except
for emergencies, that the custodial parent must obtain the payor's approval before committing the child to a course of care or treatment.
EMANCIPATION
The Agreement should provide the age at which child support payments terminate if sooner than age 21. Where an agreement makes provision for the support of the children of the marriage, the paying spouse's obligation for each child, respectively, terminates upon each child attaining age 21. Child support obligations beyond age 21 cannot be compelled unless the contract provides that a parent's obligation of support will continue to a later date.
CHILD SUPPORT STANDARDS ACT
New York law requires that the parties must be advised of the provisions of the New York Child Support Standards Act (“CSSA”) as contained in New York Domestic Relations Law §240(1-b) and New York Family Court Act §413(1)(b). They must also have been advised that a child support agreement which departs from the child support guidelines must provide that the parties have been made aware of the Child Support Standards Act (CSSA) and that the parties are aware that the application of the CSSA guidelines would result in the calculation of the presumptively correct amount of child support. The agreement must also include the dollar amount of the presumptively correct support that would have been calculated pursuant to the CSSA, and must state the parties' reasons for the parties’ departure from the guidelines. Even an agreement which does not opt-out of the CSSA guidelines is required to provide that the parties have been made aware of the CSSA and that they were aware that the application of the CSSA guidelines would result in the calculation of the presumptively correct amount of child support. The parties may expressly waive the provisions of the CSSA to the extent permitted by law.
The parties must have also been advised that the "basic child support obligation" provided in New York Domestic Relations Law §240(1-b) and New York Family Court Act §413(1)(b) would presumptively result in the correct amount of child support to be awarded. In the event that the settlement agreement or stipulation deviates from the "basic child support obligation", the foregoing statutes require this Agreement or Stipulation to specify the amount that such "basic child support obligation" would have been and the reason or reasons that such Agreement or Stipulation does not provide for payment of that amount, in order to assure that the parties are aware of their rights and obligations under the Child Support Standards Act and knowingly waive such rights. Such provision may not be waived by either party or counsel.
The Child Support Standards Act provides that nothing contained in section 240(1-b)(b)(h) and New York Family Court Act §413(1)(h) shall be construed to alter the rights of the parties to enter into validly executed Agreements or Stipulations which deviate from the "basic child support obligation" provided such Agreements or Stipulations comply with the provisions of New York Domestic Relations Law §240(1-b)(h) and New York Family Court Act §413(1)(b)(h).
New York Domestic Relations Law Section 240(1-b) and New York Family Court Act §413(1)(b) provide the court shall calculate the "basic child support obligation", and the non-custodial parent's pro rata share of the basic child support obligation. Unless the court finds that the non-custodial parent's pro rata share of the basic child support obligation is unjust or inappropriate, after considering ten enumerated factors, it must order the non-custodial parent to pay his or her pro rata share of the "basic child support obligation. In arriving at the "basic child support obligation" the Court must calculate the "combined parental income" and multiply it by the appropriate "child support percentage." The "child support percentage" is defined as: 17% of the combined parental income for one child; 25% of the combined parental income for two children; 29% of the combined parental income for three children; 31% of the combined parental income for four children; and no less than 35% of the combined parental income for five or more children. Where there are five or more children, the court must exercise its discretion as to the amount of the child support percentage. Where the combined parental income exceeds $80,000 per year, after the court determines the non-custodial parent's share of the basic child support obligation, it must next determine the amount of child support for the amount of combined parental income in excess of $80,000. It may do so, in the exercise of its discretion, through consideration of ten discretionary factors and/or the child support percentage. There are two additional items of support which are part of and which the court must consider in determining the "basic child support obligation" and two items it may consider in determining the non-custodial parent's share of the "basic child support obligation." When a custodial parent is working or receiving education leading to employment, reasonable child care expenses must be apportioned pro rata, in the same proportion as each parent's income is to the combined parental income. Health care expenses must also be apportioned pro rata in the same proportion as each parent's income is to the combined parental income. If the custodial parent is seeking work, child care expenses as a result thereof may be apportioned. Educational expenses may also be awarded. They need not be apportioned. These expenses are discretionary and not based on a percentage of $80,000. Child care expenses for seeking work and educational expenses need not be awarded in proportion to the combined parental income.
If a party is unrepresented party he/she is required to receive a copy of the Child Support Standards Chart promulgated by Commissioner of Social Services pursuant to New York Social Services Law Section 111-I. The parties may, in their agreement, waive the right to collect the child support payments by an income deduction order, and waive the right to enforce the provisions of the agreement through Child Support Enforcement Services.
LIFE INSURANCE
Generally, a spouse purchases or maintains an existing policy of life insurance for the benefit of the child in an agreed upon amount (usually sufficient to cover the child support obligations for the child unless otherwise provided by will). It is not unusual for life insurance to be purchased or maintained for the payor's maintenance obligations or obligations to pay out a cash sum over a period of time. Provision must be made to verify that the insurance remains in effect and the premiums paid.
PROPERTY DISTRIBUTION - EQUITABLE DISTRIBUTION AND/OR DISTRIBUTIVE AWARD
Equitable distribution is a tax-free distribution not included in the income of the recipient or deductible to the payor. Furthermore, pension and retirement funds can be transferred to the recipient by a Qualified Domestic Relations Order ("QDRO"), leaving its retirement nature intact while avoiding violation of the anti-alienation provisions of ERISA, with its resultant penalties and taxes to the transferor. Likewise, the recipient will take the transferor's basis in any real property, recognizing the gain only at the time of the sale to a third party and only to the extent it has appreciated since the time of purchase (not the date of transfer). The transfer of appreciated property is considered a gift for tax purposes. Other items to consider, for example:
Cash
Consider an installment payment arrangement versus a lump sum. Assuming a lump sum arrangement is preferred, be specific on the date it is to be given and its form (check, wire transfer or change of title on account).
Stocks and Bonds
Be sure the value placed has a date, an approximate value and an understanding that fluctuations in valuation are not a basis for claiming fraud.
Jewelry
Must be itemized. Indicate its description, purchase price, market value, source of funds, separate or personal and total value.
Art
Must be itemized. Indicate its description, purchase price, market value, present location.
Automobiles
Indicate whether the recipient is (or is not) responsible for all expenses attendant to the operation of the automobile, including insurance, upkeep, gasoline.
Real Property
Indicate if title and possession are to be transferred to the husband/wife or sold. Specify who pays the cost of the transfer. If a joint tenancy or tenancy in common and title is transferred to one spouse, provide for relinquishment of all claims and rights to the property and release the transferor from all notes and obligations attributable to the property. A hold harmless clause should be employed as well as an agreement for a
party to use his/her best efforts to have her/him removed as obligor. If the property is to be sold, specify the details of sale, sale price, costs, brokers, expenses, legal fees.
Real Estate Considerations in General:
Properties held jointly reverts to the survivor should one party die before the dissolution of the marriage. To alter this situation you may change the manner in which title is held immediately upon execution of the Agreement, but you must specifically provide for this in the Agreement. It is recommended to have the transfer documents executed simultaneously with the Agreement. All real property transferred, if any, must provide for the tax consequences, costs of sale and carrying costs.
Exclusive Occupancy of the marital residence
Be sure that the occupant is obligated to remove himself/herself by a date certain. If the residence is to be sold, he/she must agree to leave the premises a certain number of days from the execution of a contract for sale of the premises. Specify who is responsible for any expenses attendant to operating the home. Make provisions for penalty upon failure to leave. Consider who will pay the moving costs and arrange the move. Make provisions to access the premises for inspection or otherwise. Photographing or videotaping the premises before leaving the premises is wise.
Personal Property.
Make lists, lists, lists and more lists of who gets what. The knickknacks, bric-a-brac, crystal, china, furniture and the like are nightmarish to divide, so forgotten items may be gone forever.
Pension Plans and Retirement Funds
Generally, transferring a portion of these funds to the spouse as part of the Equitable Distribution is advantageous, as previously noted. The transferee receives the retirement funds on a tax-free basis. They continue to accumulate tax free until distribution to him/her from the plan. The transferor makes the transfer tax-free and has no penalty. It is important to net out the value of this tax free exchange in calculating the Equitable Distribution.
INCOME TAX RETURNS AND REFUNDS
The agreement should provide who is responsible for errors, omissions, penalties, assessments, and interest on previously filed joint income tax returns and the costs associated with opposing or defending an audit or assessment, including accounting fees. So long as the parties remain married, they can and should file joint tax returns. Determine how the refund, if any, is going to be distributed. Make provision as to who claims the child(ren) as an exemption. Unless provided otherwise in writing, the custodial parent is entitled to the exemption. To do otherwise, the custodial parent must sign IRS form 8332 to entitle the non-custodial parent to the exemption.
LEGAL REPRESENTATION AND DISCLOSURE
The agreement should include the name and address of the attorneys who represented each of the parties and a statement that each counsel was chosen freely. It should indicate that each party had an opportunity to obtain independent tax advice. The parties should acknowledge the extent of the financial disclosure provided and /or the opportunities for disclosure of the assets and income of each party. It is suggested, at a minimum, that each party provide a Net Worth Statement.
LEGAL FEES
If one party is to contribute, partially or wholly, to the legal fees of the other, it is generally best for the payor to contribute a lump sum amount on behalf of the recipient's legal fees in payment of the litigation or for the negotiation of the agreement, and any subsequent action for dissolution. The recipient should hold the payor harmless for any other fees and the recipient's lawyer should be required to waive all other claims for the legal fees for the agreement or dissolution proceedings against the payor.
RELIGIOUS DIVORCE:
Both parties should agree (if relevant) to this provision if they were married in a religious ceremony because it is required by law in states such as New York. The agreement should make provision for obtaining the religious divorce by a specific date, for the payment of the costs and fees, and to require that both spouses cooperate with the religious authority.
MUTUAL WAIVERS OF OTHER ASSETS AND MAINTENANCE:
Except as provided in the agreement, each spouse should specifically waive all rights and interests, if any, to the other's businesses, licenses, professional degrees and other assets, real and personal, in that party's possession, custody or control, whether or not mentioned in the agreement. If maintenance is not being paid there should be mutual waivers of maintenance, so that an application may not be made for maintenance after the parties are separated or divorced. The same holds true with regard to retirement benefits, pensions and counsel fees.
RELIANCE UPON FINANCIAL DISCLOSURE
1. The parties have been advised at length by their respective counsel as to their rights and obligations under the "Equitable Distribution Law", New York Domestic Relations Law Section 236[B]. Each of them has been specifically advised as to his or her rights as to full disclosure from the other party concerning the income, prospects, holdings, assets and liabilities of the other under the terms of that statute and of the relevant case law.
2. Each of the parties has provided information to the other to prepare a joint statement of net worth, a copy of which is annexed hereto wherein each one of them has represented to the other, the state of their finances and the status of their assets and debts, and upon which each has relied in the execution of this Agreement. The Wife has relied upon the Husband's representation as to his income and assets, as set forth in such joint net worth statement, in executing this Agreement.
RECONCILIATION
Under certain circumstances, an agreement will be repudiated where the parties reconcile and resume cohabitation. There should be a provision that the agreement shall not be invalidated or otherwise affected by a reconciliation between the parties or by a resumption of the marital relations between them, unless the reconciliation or resumption is documented by a written statement signed and acknowledged by the parties.
VOLUNTARY EXECUTION
The agreement should contain a provision acknowledging that each party had full knowledge and understanding of all of its provisions, and an opportunity to question his/her attorney with regard to the provisions of the agreement. The parties should acknowledge that the terms of the agreement have been explained to them and it is fair and was freely entered into, and is not the result of any fraud, duress or undue influence exercised by either party upon the other.
PENDING ACTIONS
The agreement should provide for the withdrawal an discontinuance of any other pending actions between the parties, with prejudice, and, if the parties intend to obtain a divorce or dissolution, for one of the parties to proceed to obtain a dissolution .
SUBSEQUENT ACTION TO SET ASIDE OR MODIFY
The parties may agree that in the event that either party brings an action or proceeding to cancel or set aside the agreement, or applies to any court for an extension or upward modification of either or both the maintenance and child support provisions of the agreement, whether successful or not, he/she will reconvey all assets he/she received under the agreement. The purpose of this clause is, obviously, to prevent a challenge to the agreement, and it will not be enforced if the court holds that the agreement is void.
BOILERPLATE CLAUSES
The term "boilerplate clauses" refers to the usual, commonly used clauses that are almost always found in matrimonial agreements.
SEVERABILITY
The agreement should contain a provision stating that if any part of the Agreement is held void or unenforceable, the balance of it will remain in full force and effect. Without such a clause, if a material provision or dependent clause of an agreement that does not have a severability clause is held void, the entire agreement may be declared void.
BINDING EFFECT
The agreement should contain a provision stating that, except as otherwise stated in the agreement, all the provisions of the agreement shall be binding upon the respective heirs, next of kin, executors and administrators of the parties.
CHANGE OF ADDRESS
As long as the parties have rights and obligations toward one another, or children who are unemancipated, they must be able to communicate with one another. The agreement should require them to notify each other of their change of address and telephone number so long as they have such obligations.
NOTICES
The agreement should contain a provision indicating the addresses to send any future notices required by the agreement.
MODIFICATION AND WAIVER
The agreement should contain a provision setting forth the formalities with which the parties must comply (such as a written and acknowledged change) to amend or modify the agreement or waive any of its terms. It should specificy that any waiver is not a
continuing waiver and shall not prevent or estop such party from thereafter enforcing such provision, right or option. The failure of either party to insist in any one or more instances upon the strict performance of any of the terms or provisions of this agreement by the other party shall not be construed as a waiver or relinquishment for the future of any such term or provision, but the same shall continue in full force and effect.
INDEPENDENT COVENANTS
The agreement should contain a provision stating that each clause of the agreement is independent of and may be enforced independently of any other clause. This permits enforcement of the balance of the agreement even after the breach of a particular provision, and a party who has breached a portion of the agreement may continue to seek enforcement of the balance of the agreement.
LEGAL INTERPRETATION
The agreement should contain a provision setting forth the law which shall apply
to the interpretation and construction of the agreement.
In the absence of anything evincing a contrary intention of the parties or violating the public policy of the state, the validity, effect, and construction of a separation agreement is governed by the law of the place where the contract was made, particularly where this place and the matrimonial domicil are the same.
The intention of the parties as to the law governing the validity, construction, and effect of a marital agreement will be respected in the absence of anything violating the public policy of the state.
FURTHER INSTRUMENTS
The agreement should contain a provision that each party will execute and deliver all documents and take all further steps as are necessary to effectuate the terms of the agreement, usually at no cost to the other party.
ENTIRE UNDERSTANDING
The agreement should contain a provision that it is the complete agreement between the parties, and that there are no side deals, and there are no representations, other than as set forth in the agreement, that are relied upon by either party.
EFFECT OF INCORPORATION OF AGREEMENT INTO JUDGMENT
Incorporation by Reference: A provision regarding the incorporation of the terms of the agreement in a judgment of dissolution or support order, in the event of a divorce, dissolution or support proceeding. This is extremely important to include.
Survival or Merger: A provision indicating the intent of the parties as to whether the agreement survives or merges into a subsequent judgment of dissolution. If it survives, modification may be limited by state law.
Contractual terms as to property settlements ordinarily are not subject to judicial change. Courts will not "rewrite" the maintenance provisions agreement unless there is a finding of existing hardship under DRL 236(B)(9)(b). When an agreement that has been incorporated into a dissolution judgment, if enforcement or modification is sought does the agreement still exist or was it merged into the judgment? The answer depends upon the intention of the parties as expressed in the agreement. Usually a matrimonial agreement provides that its terms shall be incorporated into the court order or judgment but that the agreement shall survive. However, an agreement may say nothing and may cease to exist after judgment. The traditional advantage to the wife of having the agreement survive was that in the event the husband failed to perform the contract, it gave her a more expeditious remedy of suit on the contract in addition to the special relief provided for the enforcement of judgments in the New York Domestic Relations Law and other statutes.
The advantage to the husband if the agreement survived was that ordinarily it precluded an upward modification of alimony/maintenance (due to a change in circumstances) so that his financial obligation was relatively fixed and certain, unless the former wife became destitute and was a candidate for public assistance.Again, the intention of the parties controls whether the agreement is merged into the judgment or is merely incorporated therein and survives intact.
COUNSEL FEES IN EVENT OF DEFAULT
The agreement should contain a provision that a party who is in default of his/her obligations under the agreement will be liable for the counsel fees and expenses of the other party incurred to enforce the agreement in a plenary action. Without such a provision, counsel fees might not be awarded in any plenary action to enforce the agreement.
The Essential Glossary of Terms Used by Lawyers and Judges
ACTION The legal term for a Lawsuit.
ADJUSTED GROSS INCOME In the case of an individual “gross income” minus the deductions listed in Internal Revenue Code 62. See Gross Income.
ADULTERY The commission of an act of sexual or deviate sexual intercourse, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of the plaintiff and the defendant. See "deviate sexual intercourse.”
AFFIDAVIT A written statement of facts made under oath and signed before a notary public.
AFFIRMATION A written statement of facts made by an attorney under penalty of perjury and signed by him/her.
AFFIRMATIVE DEFENSE Legal defenses that may be raised in response to a spouse's pleading, even if the allegations of the Complaint were true.
AGE OF MAJORITY The age, usually, defined by statute as 18 years, at which a person attains full legal rights, especially, civil and political rights such as the right to vote.
AGREEMENT A transcribed or written resolution of disputed issues signed by the parties to the dispute. The same as a contract.
ALLEGATION A statement of fact contained in a pleading, affidavit or other writing setting forth what the person who made the statement claims and ultimately intends to prove to the court.
ANCILLARY RELIEF A request for relief other than a divorce, separation or dissolution of a marriage, which does not require that a cause of action to be pleaded. Ancillary relief can be alimony, maintenance, child support, counsel fees, expert fees, exclusive occupancy of the marital residence, special relief and equitable distribution.
ANNULMENT A judgment of a court voiding a marriage. A man and woman must be legally capable of entering into a valid marriage. If the parties are under a disability which may invalidate the marriage it can be annulled, that is, it can be avoided.
ALIMONY Court ordered payments for the support of a spouse or former spouse, payable during the lifetime of the payer, until the death or remarriage of the recipient spouse.
ANSWER The second Pleading in an action for divorce, separation or annulment, which is served in response to the Complaint and which admits or denies its allegations.
ANSWERING AFFIDAVIT An affidavit which is served in response to a notice of motion or order to show cause and supporting affidavit(s), which admits, denies or responds to its allegations. Same as answering affirmation.
APPEAL The process where a court reviews the proceedings resulting in an Order or Judgment of a lower Court and determines whether the decision of the lower court should be reversed or modified.
APPEARANCE The formal submission by a Defendant to the jurisdiction of the Court, by serving a notice of appearance, after having been served with a Summons. Appearance also refers to the physical presence of a party at Court.
BARGAIN AND SALE DEED. A deed that conveys property to a buyer for valuable consideration but lacks any guarantee from the seller about the validity of the title.
BARGAIN AND SALE DEED WITH COVENANT AGAINST GRANTORS ACTS A deed that conveys property to a buyer for valuable consideration and contains a guarantee from the seller than he has done nothing to encumber the title.
BASIC CHILD SUPPORT OBLIGATION Defined in the New York Domestic Relations Law and in the New York Family Court Act as " The sum derived by adding the amounts determined by the application of Subparagraphs Two and Three of Paragraph (c) of this Subdivision except as increased pursuant to Subparagraphs Four, Five, Six and Seven of such Paragraph." Obviously, this means nothing to you. See Settlement Considerations: Child Support.
BIGAMY Entering into a marriage to someone who is already married and whose marriage was not terminated or dissolved. A bigamous marriage is void.
BILATERAL Affecting or obligating both parties. A bilateral contract.
BITCH A word used by disgruntled husbands to describe their former wife to be.
See also “Whore”.
BURDEN OF GOING FORWARD A party's obligation to introduce enough evidence on an issue to have the issue decided by the fact-finder, rather than decided against that party in a peremptory ruling such as a summary judgment or a directed verdict.
BURDEN OF PROOF Method to instruct the factfinder concerning the degree of confidence our society thinks he/she should have in the correctness of his factual conclusions for a determination and to allocate the risk of making an error. Indicates the relative importance attached by society to the ultimate decision. In a typical civil case involving a monetary dispute between private parties, society has a minimal concern with the outcome of private suits, and plaintiff's burden of proof is a mere preponderance of the evidence. The parties to the lawsuit share the risk of error in roughly equal fashion. In a criminal case the interests of the defendant are of such
magnitude that they are protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment. Society imposes almost the entire risk of error upon itself, by requiring that the state prove the guilt of an accused beyond a reasonable doubt. The intermediate standard, is by "clear and convincing evidence," which is used in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant, where the interests at stake are more substantial than mere loss of money. In New York the preponderance of the evidence standard is utilized in most matrimonial actions and family court proceedings. The clear and convincing evidence standard is used in those cases where the issue is adultery; fraud; to establish paternity; to establish an acknowledgment of paternity; to terminate parental rights and establish the grounds for appointment of a guardian under New York Social Services Law § 384-b; to establish, in a civil proceeding to punish for civil contempt, violation of an order or subpoena.
CAUSE OF ACTION The legal circumstances which must be pleaded and proven before a divorce, separation, annulment, dissolution or other non-ancillary relief can be granted. See ancillary relief.
CHANGE OF VENUE A change of the place where the case is to be tried.
CHILD SUPPORT Support for a child (not taxable to the recipient or deductible to the payer spouse).
CHILD SUPPORT STANDARDS ACT (“CSSA”) The New York child support law, found in New York Domestic Relations Law, section 240 (1-b) and New York Family Court Act, section 413 (1)(b) which governs with regard to awards of child support and agreements for child support.
CLAIM A charge by one spouse against the other.
COLLATERAL ESTOPPEL. An affirmative defense barring a party from relitigating an issue determined against that party in an earlier action, even if the second action differs significantly from the first one.
COMMON LAW The body of law based on the English legal system, as distinct from a civil-law system. The body of law derived from judicial decisions, rather than from statutes or constitutions.
COMMON LAW MARRIAGE A marriage, which is consummated without the benefit of a ceremony performed by a licensed marriage performer, by a man and a woman, who intend to be married, hold themselves out as husband and wife, are competent to marry. All of the states are required by the “Full Faith and Credit clause of the United States Constitution to recognize common law marriages validly entered into in other jurisdictions. The common-law marriage jurisdictions are Alabama, Colorado, Georgia, Idaho, Iowa, Kansas, Montana, Ohio, Pennsylvania, Rhode Island, South Carolina, Texas, and the District of Columbia. Each jurisdiction has its own law as to what must be done by a man and a woman to enter into a common law marriage. For example, in Georgia there must be a mutual agreement to be husband and wife, by parties able to contract, followed by cohabitation. In Pennsylvania a “common law marriage can only be created by an exchange of words in the present tense, spoken with the specific purpose that the legal relationship of husband and wife is created. When applicable, the party claiming a common law marriage who proves constant cohabitation and a reputation of marriage "which is not partial or divided but is broad and general," raises the rebuttable presumption of marriage. This rebuttable presumption does not apply when both parties are alive and able to testify regarding the formation of the marriage contract.
COMMUNITY PROPERTY Property which is owned in common by a husband and wife because it was acquired during their marriage by means other than an inheritance or gift to one spouse. Each spouse holds a one half interest in the property. Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Puerto Rico, Texas, Washington and Wisconsin are community property jurisdictions.
COMPLAINT The first Pleading in action for divorce, separation, or annulment, setting forth the allegations upon which the requested relief is based.
CONDONATION The adultery of a spouse is not grounds for divorce if the complaining party forgives it, for example by continuing to have sex with the adulterer. Forgiveness. An affirmative defense to a divorce on the grounds of Adultery.
CONNIVANCE Procurement. An affirmative defense to a divorce on the grounds of Adultery. Even though the adultery of the defendant is established, a divorce may not be granted to the plaintiff if the adultery was committed by the procurement or with the connivance of the plaintiff. "Connivance" has been defined to be the corrupt consenting of a married person to the adultery of his spouse for which that party afterward seeks a divorce. Where a spouse has conspired with another person to have that person commit adultery with his wife, that spouse connives at such adultery. Where a spouse employs detectives or agents for the express purpose of committing adultery with the other spouse, there is a corrupt consent and a connivance at the adultery.
CONTEMPT OF COURT The willful and intentional failure to comply with a Court Order or Judgment. Contempt of Court is punishable by fine or imprisonment, or both.
CONTESTED CASE Any case where the Court must decide one or more issues that are not agreed upon by the parties. Cases are considered contested until all issues have been agreed upon.
COTENANCY A tenancy with two or more co-owners who have unity of possession. Examples are a joint tenancy and a tenancy in common. See Tenancy.
COURT Word commonly used by lawyers to refer to a judge. Also a building where cases are heard and decided by judges and/or juries.
COVENANT A formal agreement or promise, usually, in a contract.
CPLR Abbreviation for the New York Civil Practice Law and Rules, a statute which governs civil practice in the courts.
CROSS-EXAMINATION The questioning of a witness presented by the opposing party at a trial, hearing or at a deposition, to test the truth of that testimony or to develop it further.
CUSTODY The sum of the rights and obligations with respect to the upbringing of the child. “Sole custody”, which encompasses this sum, includes the right to have physical custody of the child, to the exclusion of all others, and to make all decisions regarding the health, education, welfare and religion of the child. "Joint legal custody," sometimes referred to as "divided" custody or "joint decision making," gives both parents a shared responsibility for and control of a child's upbringing. It may include an arrangement between the parents whereby they alternate physical custody of the child. Where there is "joint physical custody," the child lives alternatively with both parents. The daily child-rearing decisions are usually made by the parent with whom the child is then living, while the major decisions, such as those involving religion, education, medical care, discipline, or choice of school/camp, are jointly made.
DECREE A word which was used to describe the final ruling of the judge in an action for divorce, legal separation, or annulment. Same as Judgment.
DEED A written document instrument by which land is conveyed or transferred.
DEFAULT ORDER OR DEFAULT JUDGMENT An Order or Judgment granted by the Court without the other side's being heard because they failed to plead or submit papers within the time allowed or failed to appear at the trial or hearing.
DEFENDANT The one who defends the lawsuit brought by his/her spouse.
DEPENDANT COVENANT A covenant that depends on a party's prior performance of some act or condition. Until the performance of the act or condition, the other party does not have to perform his/her obligation.
DEPOSITION UPON ORAL QUESTIONS The testimony of a witness taken before a notary public, under oath, in response to questions by an attorney, and reduced to writing. Depositions are taken for the purpose of discovering the facts upon which a party's claim is based; obtaining financial information or discovering the substance of a witness's testimony prior to a trial or hearing. The deposition may be used to discredit a witness if he changes his testimony. Depositions are used to preserve the testimony of a witness who will be unable to appear at trial. Commonly referred to by lawyers and judges as an “EBT” (examination before trial).
DEPOSITION UPON WRITTEN QUESTIONS The testimony of a witness taken before a notary public, under oath, in response to written questions, submitted by the attorneys and answered in writing.
DIRECT EXAMINATION The initial questioning of a witness at a trial, hearing or deposition, by the attorney who called the witness to the stand to testify.
DIRECTED VERDICT A judgment entered on the order of a trial judge who takes over the fact-finding role of the jury because the evidence is so compelling that only one decision can reasonably follow or because it fails to establish a prima facie case. See verdict.
DEVIATE SEXUAL INTERCOURSE Sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and penis, or the mouth and the vulva.
DISCLOSURE Procedures followed by attorneys, usually permitted before a trial or hearing, in order to determine the nature, scope, and credibility of the opposing party's claim and his/her financial status. Disclosure devices include depositions, written interrogatories, notices to admit, notices to permit entry upon real property and notices to produce various documentation relating to issues which are decided in the case. Psychological examinations, blood tests, forensic examinations and court social-service investigations are also part of disclosure.
DISCRETION OF THE COURT The area of choice available to a judge to make a legally acceptable decision on his interpretation of the evidence.
DISTRIBUTIVE AWARD Tax free payments payable to either spouse, in a lump sum or over a period of time in fixed amounts, which the parties agree to in a valid agreement between the parties or which are awarded by the Court. These payments are made in lieu of or to supplement or facilitate or effectuate the division or distribution of property in a matrimonial action.
DRL Abbreviation for the New York Domestic Relations Law, a statute which governs matrimonial actions and adoptions.
EMANCIPATION The point at which a child comes of age. Children are emancipated in New York upon reaching the age of 21 or upon marriage, leaving the custodial residence if of employable age and refusing to adhere to reasonable parental authority and control, or entering the armed services. Emancipation ends a parent’s duty to support his child, unless there is an agreement providing otherwise. A child who becomes emancipated upon entering the armed services becomes unemancipated if he or she returns to his parents home upon discharge from the armed services. In some states children are emancipated upon reaching the age of 18.
EPTL Abbreviation for the New York Estates Powers and Trusts Law, a statute which governs inheritances and wills
EQUITABLE Just. Conformable to principles of justice and right. Existing in equity. Available or sustainable by an action in equity, or under the rules and principles of equity.
EQUITABLE DISTRIBUTION LAW (“EDL”). The term given to the several laws enacted in New York in 1980 which adopted rules for awards of maintenance and the distribution of property upon the dissolution of a marriage, changing the then existing alimony and common law property distribution laws of New York.
EQUITABLE DISTRIBUTION OF PROPERTY A system of distributing property acquired by spouses during their marriage in connection with a divorce or dissolution proceeding. The division is based on a variety of equitable factors, including the length of the marriage, relative financial contributions of the parties, contribution as a spouse and homemaker and respective need. Title to property in the name of either spouse does not necessarily restrict the Court's right to award all or part of that property to the other spouse as part of an Equitable Distribution.
EQUITY The system of law originating in the English Court of Chancery and superseding the common law and statute law when the two conflict.
EVIDENCE Documents, testimony or other material offered to the Court to prove or disprove allegations in the pleadings or in dispute.
EXECUTION A mandate issued by or on behalf of the court directing the sheriff to take possession of money, wages or property owned by a person or entity, and sell or otherwise liquidate it in order to satisfy a judgment entered against that person or entity.
EX PARTE An application made to a court by a party for relief without the other party having notice or being present, due either to a lack of notice or choice of the other party not to appear. An Order to Show Cause is an ex parte application to a court for relief and is permissible. However, ex parte communications with the court are a violation of the Canons of Ethics.
FCA An abbreviation for the New York Family Court Act, a statute which governs practice in the Family Court, a court of limited jurisdiction.
FOUNDATION The evidence that must be presented to the court before asking certain questions or offering documentary evidence on trial or at a hearing.
GROSS INCOME Defined in Internal Revenue Code 61 as all income from whatever source derived, including (but not limited to) the following items: (1) Compensation for services, including fees, commissions, fringe benefits, and similar items; (2) Gross income derived from business; (3) Gains derived from dealings in property; (4) Interest; (5) Rents; (6) Royalties; (7) Dividends; (8) Alimony and separate maintenance payments; (9) Annuities; (10) Income from life insurance and endowment contracts; (11) Pensions; (12) Income from discharge of indebtedness; (13) Distributive share of partnership gross income; (14) Income in respect of a decedent; and (15) Income from an interest in an estate or trust.
GROUNDS FOR DIVORCE The legal circumstances which must be pleaded and proven before a divorce can be granted. Also called a "Cause of Action."
HAGUE CONVENTION The Convention on the Civil Aspects of International Abduction of Children adopted at the Hague on October 25, 1980. It provides for a quick federal or state court proceeding, not on the merits of the custody dispute, for the return of a child wrongfully removed or wrongfully detained from his “habitual residence”.
HEARING Any proceeding before the Court where testimony is taken for the purpose of resolving disputed issues.
HOLD-HARMLESS When one spouse assumes liability for a debt or obligation and promises to protect the other spouse from any loss or expense in connection with it.
HOSTILE WITNESS A witness who demonstrates so much prejudice during direct examination that the party who has called him to testify is allowed to cross-examine him. The greater flexibility of cross-examination enables the questioner to ask leading questions and to attack the credibility of the witness.
IAS The Individual Assignment System. Soon after an action is started, the attorney(s) for the parties are required to file a Request for Judicial Intervention ("RJI") with the Clerk of the Court. The case is then assigned, by computer, to an individual judge who will handle every aspect of the case to its conclusion.
ICARA The International Child Abduction Remedies Act, 42 U.S.C. 11601, et seq.
which contains the implementing legislation for enforcing rights under the Hague Convention on the Civil Aspects of International Child Abduction. See Hague Convention.
INFANT A person under the age of twenty-one years.
IMPEACHMENT The act of proving that a witness is lying.
IMPUTED INCOME A finding by a court that is awarding maintenance or child support, that a parent or party has income or is capable of earning income, which he/she does not really have or does not really earn. The court may attribute income to that person from any resource available, such as non-income-producing assets; meals, lodging, memberships, automobiles, or other job benefits that are for personal use or personal economic benefit; fringe benefits from employment; and money, goods, or services provided by relatives and friends. It may also attribute income based on the persons education, earning capacity, former resources or income if it finds that the person has intentionally reduced resources or income or become unemployed in order to reduce or avoid his/her obligation for support.
IN CAMERA Out of the presence of the jury.
IN CAMERA INTERVIEW Interview of the child made on the record before a court reporter, by the judge, in a contested custody case. Usually held in the judges chambers. Sometimes the lawyers and law guardian are present when the child is questioned.
INCEST A marriage between spouses very closely related by blood. An marriage between ancestor and descendant, brother and sister, uncle and niece or aunt and nephew is incestuous and void.
INCOME Income is defined for purposes of awarding child support as gross (total) income as should have been or should be reported in the most recent federal income tax return.
INDEMNIFICATION To promise to reimburse another person in case of an anticipated loss. The same as Hold-Harmless.
INDEPENDENT COVENANT A covenant that does not depend on a party's prior performance of some act or condition.
IN ISSUE In dispute.
INJUNCTION A Court Order forbidding someone from doing a particular act which is likely to cause injury or property loss to another party (same as a Restraining Order).
INTERLOCUTORY Interim or temporary. Not a final resolution of the whole dispute or controversy.
IRC Abbreviation for the Internal Revenue Code, the law which requires us to pay
federal income tax, as well as other taxes
INTERROGATORIES A series of written questions served upon the opposing party in a lawsuit in order to discover certain facts regarding the disputed issues in the action. The answers to Interrogatories must be made in writing and signed, under oath, and served within a prescribed period of time.
IRREBUTTABLE OR CONCLUSIVE PRESUMPTION A presumption that cannot be overcome by any additional evidence or argument. See presumption.
JOINT PROPERTY Property held in the name of more than one person.
JOINT TENANCY (WITH RIGHT OF SURVIVORSHIP) A tenancy with two or more co-owners who take identical interests simultaneously by the same instrument and with the same right of possession. A joint tenancy differs from a tenancy in common because each joint tenant has a right of survivorship to the other's share (in some states). See Tenancy.
JUDGE The person who will decide the issues in your case fairly. Canon 3 (B) (3) of the Code of Judicial Conduct provides that a “ A judge shall be patient, dignified and courteous to litigants...lawyers and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, and of staff, court officials and others subject to the judge's direction and control”. Canon 3(B)(4) provides that a judge shall perform judicial duties without bias or prejudice against or in favor of any person.
JUDGMENT The determination of the rights of the parties in an action or special proceeding. It may be either interlocutory or final. A judgment refers to and states the result of the verdict or decision, or recites the default upon which it is based.
JUDGMENT-ROLL judgment roll. The papers and pleadings which are part of the record and must be filed with the judgment.
JUDICIAL NOTICE A court's acceptance, without requiring proof, of a well-known and indisputable fact.
JUDGMENT The Order of the Court determining the action. Same as Decree.
JURISDICTION IN PERSONAM (PERSONAL JURISDICTION) The power of the Court to make decisions which affects the parties, their children or their property.
JURY Six of your peers, who will decide the grounds for divorce if you do not trust the judge to decide your case fairly.
LACHES An equitable doctrine by which a court denies relief to a party who has unreasonably delayed in asserting his claim, when that delay has prejudiced the other party against whom relief is sought.
LAW GUARDIAN An attorney appointed by the judge, usually at your expense, to represent your child or children in a contested custody case (even though they are not parties to the case).
LEADING QUESTIONS Questions, which are asked of a party or witness who is testifying at a trial, hearing or deposition, that suggest the answer. For example, “Are you the plaintiff in this action?
LEGAL SEPARATION A Judgment of the Court or written Agreement directing or authorizing the spouses to live separate and apart. Actions for legal separation provide for maintenance, child custody, and support, but do not provide for Equitable Distribution of marital property. A judgment of separation does not dissolve the marriage, does not permit the parties to commit adultery and does not allow the parties to remarry. See Separation Action.
LEVERAGE FACTORS Particular considerations, based on the priorities of the parties, which induce them to settle disputed issues. The skillful use of these factors generally controls the successful outcome of a settlement.
MAINTENANCE Spousal support (deductible to the payer spouse and taxable as income to the recipient).
MARITAL PROPERTY Property which will be equitably distributed upon dissolution of the marriage. It includes all property acquired by either or both parties during the marriage, before the signing of a separation agreement, and before starting a matrimonial action. It does not matter how title to the property is held. Property acquired by gift from third parties or inheritance, and personal injury recoveries is not marital property.
MARRIAGE The legal union of a man and woman as husband and wife.
MATRIMONIAL ACTION A lawsuit for a separation, for an annulment or dissolution of a marriage, for a divorce, for a declaration of the nullity of a void marriage, for a declaration of the validity or nullity of a foreign judgment of divorce and for a declaration of the validity or nullity of a marriage, for a declaration of the validity or nullity of a marriage, and proceedings to obtain maintenance or a distribution of marital property following a foreign judgment of divorce.
MERGER The effect that a judgment has which absorbs an agreement into the judgment, so that the parties rights are limited to enforcing the judgment.
MAJORITY The status of one who has attained the age of majority (usually 18).
MISTRIAL A trial or hearing that ends before both sides have rested, due to the occurrence of some fundamental error that would render the trial or hearing invalid. Following a mistrial, the case must be tried again from the beginning.
MONEY JUDGMENT A judgment for a sum of money or directing the payment of a sum of money upon which execution is granted.
MOTION A written or oral application to the court for some particular relief, such as temporary support, an injunction, a temporary restraining order, an order compelling disclosure, or for attorney's fees, which must be made upon advance written notice of motion to the other party. A motion may also be made by Order to Show Cause.
NO-FAULT DIVORCE A marriage-dissolution system whereby divorce is granted without the necessity of one of the parties being guilty of marital misconduct.
NO GOOD SON OF A BITCH Word commonly used by angry former wife to describe ex-husband who is late in making alimony, child support or other financial payments. Sometimes referred to as dead beat dad, dead beat husband, cheat, loser or slime.
NOTICE OF ENTRY A Notice that is served upon a party that a judgment or order has been made and entered in the records of the clerk of the court, and the date that it was entered.
NOTICE OF MOTION A written which is served upon the other attorney or spouse telling them that on a certain day a motion will be made to the court for certain relief. The notice must indicate the date and place the motion is going to be made and contain copies of the affidavits, affirmations, papers and documents upon which the motion is being made.
NOTICE OF SETTLEMENT A notice telling the other attorney the date, time, place and name of the judge whom we are submitting an order or judgment for signature.
OPTING OUT AGREEMENT An Agreement made before or during marriage providing for the rights and obligations of the spouses, including, but not limited to maintenance, child support, custody, visitation, estate rights and property distribution, in the event of the dissolution of their marriage. See Settlement Agreement and Property Settlement Agreement.
ORDER The Court's ruling on a Motion requiring the parties to do certain things or setting forth their rights and responsibilities. An Order is reduced to writing, signed by the judge and filed with the Clerk of the Court.
PARENS PATRIAE The Court in its capacity as a protector of children and other persons who are not able to care for themselves.
PAROL-EVIDENCE RULE The principle that a writing intended by the parties to be a final embodiment of their agreement cannot be modified by oral evidence that adds to, varies, or contradicts the writing. This rule usually prevents a party from introducing, at a trial or hearing, outside evidence of negotiations that occurred before or while the agreement was being negotiated and reduced to its final written form. According to this rule evidence is not admissible to contradict or qualify a complete written contract.
PERFECTING AN APPEAL An Appeal is "perfected" when all of the required papers, such as the record or appendix and the appellants brief are filed with the Appellate Court.
PETITION A formal written request presented to a court. A pleading in a special proceeding.
PKPA The Parental Kidnaping Prevention Act, enacted by the Federal government to address interstate custody problems that continued to exist after the adoption of the Uniform Child Custody Jurisdiction Act. The Parental Kidnaping Prevention Act mandates that state authorities give full faith and credit to other States’ custody determinations, so long as those determinations were made in conformity with the provisions of the Parental Kidnaping Prevention Act. The Parental Kidnaping Prevention Act provisions regarding bases for jurisdiction, restrictions on modifications, preclusion of simultaneous proceedings, and notice requirements are similar to those in the Uniform Child Custody Jurisdiction Act. However, there are some significant differences.
PLAINTIFF The party who files the Lawsuit.
PLEADING A formal written application to the Court for relief and the written response to it. The Pleadings are the complaint, answer, counterclaim, and reply.
POVERTY INCOME GUIDELINES FOR A SINGLE PERSON Poverty income guidelines published annually by the Federal Department of Health and Human Services.
PRAYER That portion of a pleading, at the end, which specifies the relief that is requested of the Court.
PRIMA FACIE Latin for “on its face”. On first appearance but subject to further evidence. After the plaintiff rested the court denied the motion to dismiss because the plaintiff established a prima facie case for divorce.
PRESUMPTION A legal inference or assumption that a fact exists, based on the existence of some other fact or group of facts. Most presumptions are rules of evidence calling for a certain result in a given case unless the adversely affected party overcomes it with other evidence. A presumption shifts the burden of going forward to the opposing party, who can then attempt to overcome the presumption.
PRIVILEGE The right of a spouse to make admissions to an attorney, clergyman, psychiatrist, his/her spouse, a doctor or certified social worker which are not later admissible in evidence.
PROPERTY A thing of value. Property can be anything of value, including education, an educational degree or certificate, a license to practice a profession or trade, or work experience which enhances the earning potential of a spouse. For example, an interest in a profession or a professional career potential is marital property subject to equitable distribution.
PROPERTY SETTLEMENT AGREEMENT The settlement reduced to a written document. An Agreement made during marriage or during the pendency of a matrimonial action settling the action and providing for the rights and obligations of the spouses, including, but not limited to maintenance, child support, custody, visitation, estate rights and property distribution. See Stipulation of Settlement and Property Settlement Agreement.
PURSUANT TO In compliance with, in accordance with, as authorized by or under.
QUALIFIED DOMESTIC RELATIONS ORDER A judgment or order, that creates or recognizes the right of a spouse or child to receive all or a portion of the retirement benefits for which the other spouse is eligible under a retirement or profit sharing plan. Usually referred as a QDRO (pronounced quad-dro)
QUALIFIED MEDICAL CHILD SUPPORT ORDER A child support judgment or order, including an order approving a settlement agreement, that creates or recognizes the existence of an parents rights to receive benefits for which the other parent is eligible under a group health plan.
QUITCLAIM DEED A deed that conveys the owner's complete interest or claim in certain real property but that neither warrants nor professes that the title is valid.
REBUT To refute, oppose, or counteract (something) by evidence, argument, or contrary proof.
REBUTTABLE PRESUMPTION An inference drawn from certain facts that establish a prima facie case, which may be overcome by the introduction of contrary evidence. See Presumption.
REBUTTAL The introduction of evidence at a trial or hearing that is in response to new matter raised by the Defendant at an earlier stage of the trial or hearing.
RECRIMINATION An affirmative defense to a divorce on the grounds of Adultery. The plaintiff is not entitled to a divorce even though the adultery of the defendant is established, where the plaintiff has also been guilty of adultery under such circumstances that the defendant would have been entitled, if innocent, to a divorce.
RECUSAL Disqualification of a judge from a case. Canon 3(E)(1) of the Code of Judicial Conduct provides that a judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where: (a) (i) the judge has a personal bias or prejudice concerning a party or (ii) the judge has personal knowledge of disputed evidentiary facts concerning the proceeding; (b) the judge knows that (i) the judge served as a lawyer in the matter in controversy, or (ii) a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or (iii) the judge has been a material witness concerning it; (c) the judge knows that he or she, individually or as a fiduciary, or the judge's spouse or minor child residing in the judge's household has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other interest that could be substantially affected by the proceeding; (d) the judge knows that the judge or the judge's spouse, or a person known by the judge to be within the sixth degree of relationship to either of them, or the spouse of such a person:
(i) is a party to the proceeding; (ii) is an officer, director or trustee of a party; (iii) has an interest that could be substantially affected by the proceeding; (iv) is likely to be a material witness in the proceeding; (e) the judge knows that the judge or the judge's spouse, or a person known by the judge to be within the fourth degree of relationship to either of them, or the spouse of such a person, is acting as a lawyer in the proceeding. (f) Notwithstanding the provisions of subparagraphs (c) and (d) above, if a judge would be disqualified because of the appearance or discovery, after the matter was assigned to the judge, that the judge individually or as a fiduciary, the judge's spouse, or a minor child residing in his or her household has an economic interest in a party to the proceeding, disqualification is not required if the judge, spouse or minor child, as the case may be, divests himself or herself of the interest that provides the grounds for the disqualification.
RELIEF Whatever a party to a Lawsuit asks the Court to do; dissolve the marriage, award support, enforce a prior court order or decree, divide property, enjoin certain behavior, dismiss the Complaint of the other party. See Ancillary relief.
REPLY The pleading filed in answer to the allegations of a Counterclaim.
REPLY AFFIDAVIT An affidavit that is filed in further support of a motion and in response to the allegations of an answering affidavit. Same as Reply Affirmation.
RES JUDICATA An affirmative defense barring the same parties from litigating a second lawsuit on the same claim, or any other claim arising from the same transaction or series of transactions and that could have been, but was not, raised in the first lawsuit. The three essential elements are (1) an earlier decision on the issue, (2) a final judgment on the merits, and (3) the involvement of the same parties, or parties in privity with the original parties.
RULES OF EVIDENCE The rules that govern the method of presentation and admissibility of oral and documentary evidence at trials, hearings or depositions.
RULING The Court's determination on an objection or offer of evidence made during a trial or hearing. A ruling is no reduced to writing or signed by the judge.
SELF SUPPORT RESERVE 35% of the poverty income guideline amount for a single person as reported by the Federal Department of Health and Human Services for the last calendar year.
SEPARATE PROPERTY A term used to describe property that a spouse is entitled to keep, which will not be equitably distributed after a marriage is dissolved. It includes property acquired by a spouse before marriage; property acquired by bequest, devise, descent or gift from a party other than the spouse; compensation for personal injuries; property acquired in exchange for or the increase in value of separate property; and property described as separate property in a written agreement of the parties. This definition is subject to certain exceptions.
SEPARATION ACTION An action for a judgment of separation, separating the husband and wife forever, or for a limited period of time. Actions for legal separation must be based upon the fault grounds of cruel and inhuman treatment, adultery, abandonment, 3 years imprisonment and non-support. The court may provide in the judgement for maintenance, child custody, and support, but can not provide for Equitable Distribution of marital property. A judgment of separation does not dissolve the marriage, does not permit the parties to commit adultery and does not allow the parties to remarry.
SETOFF A debt or financial obligation of one spouse which is deducted from the debt or financial obligation of the other spouse.
SETTLEMENT The agreed resolution of disputed issues.
SETTLEMENT AGREEMENT The settlement reduced to a written document. An Agreement made during marriage or during the pendency of a matrimonial action settling the action and providing for the rights and obligations of the spouses, including, but not limited to maintenance, child support, custody, visitation, estate rights and property distribution. See Stipulation of Settlement and Property Settlement Agreement.
SHOW CAUSE ORDER (Same as Order to Show Cause) A Written application to the Court for some type of relief which is made upon such notice to the other party as the Court directs and which may contain a restraining order, temporary injunction, or other ex parte relief, pending the determination of the Motion. See Notice of Motion
STIPULATION OF SETTLEMENT The settlement dictated on the record in open court and reduced to a written document by the court reporter. Essentially the same as an agreement made during marriage or during the pendency of a matrimonial action settling the action and providing for the rights and obligations of the spouses, including, but not limited to maintenance, child support, custody, visitation, estate rights and property distribution. See Settlement Agreement and Property Settlement Agreement.
SPECIAL RELIEF A direction made in a matrimonial action to a spouse to maintain life, health, accident, medical and dental insurance for his spouse and/or children.
STARE DECISIS The doctrine of precedent which requires a court to follow earlier judicial decisions when the same points arise again in a lawsuit.
STATUS QUO The existing state of things; leaving things as they are without modification or alteration. "Things" can be anything from support and visitation arrangements to property rights.
STATUTE A law passed by a legislative body.
STATUTE OF LIMITATIONS A statute establishing a time limit for suing in a civil case, based on the date when the claim accrued (as when the adultery occurred or was discovered). A statute establishing a time limit for prosecuting a crime, based on the date when the offense occurred.
STIPULATION An Agreement made between the parties to a lawsuit, or their attorneys, either in writing or on the record in open court.
SUBPOENA A mandate issued by the court, or on behalf of the court, by an attorney, which is served upon a person or corporation, who is the “witness”. A subpoena requires the witness to appear, give testimony and/or produce documents or things at a deposition, trial or hearing. A subpoena is normally accompanied by a witness fee set by statute, as well as a mileage fee for transportation costs to and from the place to which the individual is subpoenaed. Failure to comply with the Subpoena could result in a fine or imprisonment, or both, as punishment by the Court for contempt of court.
SUI JURIS Of full age and capacity.
SUMMARY JUDGMENT A judgment granted on a claim about which there is no genuine issue of material fact and upon which the movant is entitled to prevail as a matter of law.
SUMMONS A written notice to the Defendant that an action has been commenced against him or her by the filing of a summons or summons and complaint, and requiring that the Defendant appear within a specific period of time to by serving notice of appearance or an answer to the Complaint.
SUR-REBUTTAL Testimony offered by the Defendant to counter any new matter contained in the rebuttal testimony offered by the Plaintiff.
TAKING AN APPEAL An Appeal is "taken" by serving and filing a Notice of Appeal within 30 days after service of the Order or Judgment to be appealed with Notice of Entry.
TEMPORARY OR PENDENTE LITE MOTIONS Applications to the Court for interim relief pending the final judgment of divorce, separation, or annulment. Typical temporary motions include motions for temporary maintenance, child support, attorneys' fees, expert fees, custody, visitation, enforcement or modification of prior temporary orders. The Court enters a pendente lite order after determining a motion. Motions are brought on by the service of a notice of motion or order to show cause, with supporting affidavits.
TENANCY The possession or occupancy of real estate by right or title. The period of such possession or occupancy.
TENANCY BY THE ENTIRETY A joint tenancy that arises between husband and wife when a deed or will conveys realty to both of them, as husband and wife. Each spouse has an undivided interest in the whole property and a right of survivorship. This type of tenancy exists in only a few states. A tenant by the entirety may not destroy the other spouse's right of survivorship by transferring his or her interest to another. The husband and wife may together convey their estate to a third person or mortgage it, but a mortgage or conveyance by one spouse to a third person only conveys the right to take the property if that spouse survives the death of the other. If they both wish to convert their tenancy into a tenancy in common or a joint tenancy, they may do so. Upon the death of either husband or wife the survivor automatically acquires title to the share of the deceased spouse. See Tenancy.
TENANCY IN COMMON A tenancy by two or more persons, in equal or unequal undivided shares, each person having an equal right to possess the whole property but no right of survivorship. Each tenant is deemed to own by himself, with most of the attributes of independent ownership, a physically undivided part of the entire parcel. See Tenancy.
TESTIMONY Statements made under oath by a witness in a Court hearing, trial or deposition.
TRIAL A formal Court hearing to decide disputed issues raised by the pleadings.
UCCJA The Uniform Child Custody Jurisdiction Act (UCCJA), which was the former Article 5-A of the New York Domestic Relations Law, repealed on April 28, 2002.
UCCJEA The Uniform Child Custody Jurisdiction and Enforcement Act which became effective in New York on April 28, 2002 as Article 5-A of the New York Domestic Relations Law. The Uniform child Custody Jurisdiction and Enforcement Act revises the law on child custody jurisdiction in light of the Parental Kidnaping Prevention Act, (PKPA), which contains provisions which are inconsistent with the Uniform Child Custody Jurisdiction Act, and the Violence Against Women Act (VAWA). The purpose of the Uniform Child Custody Jurisdiction and Enforcement Act is to revise the Uniform Child Custody Jurisdiction Act to bring the Uniform Child Custody Jurisdiction Act into compliance with the Parental Kidnaping Prevention Act and other federal statutes such as the Violence Against Women Act, as well as to make those changes to the Uniform Child Custody Jurisdiction Act which are necessary as a consequence of inconsistent court interpretations.
VACATED When a Court order or judgment is erroneous, it is eliminated, usually by the court, after a motion is made on notice, or by an appellate court.
VERDICT A jury's finding or decision on the factual issues of a case. In a nonjury trial, a judge's decision on the issues of a case.
VERIFICATION A pleading or affidavit made under oath and signed before a notary public.
VISITATION A limited form of custody. See Custody.
WARRANTY DEED A deed containing one or more covenants of title, especially a deed that expressly guarantees the grantor's good, clear title and that contains covenants concerning the quality of title.
WITNESS A person who gives testimony, usually under oath, at a trial, hearing or deposition. Children may testify although not under oath.
WRIT OF HABEAS CORPUS An order which must be signed by a judge (called a “writ”) directing the person who is confining another person, to bring that person before the court, to determine if the detained party's imprisonment or detention is not illegal. In addition to being used to test the legality of an arrest or commitment, the writ is a procedural device that is used to obtain a custody or visitation determination. The writ may be served on any day of the week.
ADJUSTED GROSS INCOME In the case of an individual “gross income” minus the deductions listed in Internal Revenue Code 62. See Gross Income.
ADULTERY The commission of an act of sexual or deviate sexual intercourse, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of the plaintiff and the defendant. See "deviate sexual intercourse.”
AFFIDAVIT A written statement of facts made under oath and signed before a notary public.
AFFIRMATION A written statement of facts made by an attorney under penalty of perjury and signed by him/her.
AFFIRMATIVE DEFENSE Legal defenses that may be raised in response to a spouse's pleading, even if the allegations of the Complaint were true.
AGE OF MAJORITY The age, usually, defined by statute as 18 years, at which a person attains full legal rights, especially, civil and political rights such as the right to vote.
AGREEMENT A transcribed or written resolution of disputed issues signed by the parties to the dispute. The same as a contract.
ALLEGATION A statement of fact contained in a pleading, affidavit or other writing setting forth what the person who made the statement claims and ultimately intends to prove to the court.
ANCILLARY RELIEF A request for relief other than a divorce, separation or dissolution of a marriage, which does not require that a cause of action to be pleaded. Ancillary relief can be alimony, maintenance, child support, counsel fees, expert fees, exclusive occupancy of the marital residence, special relief and equitable distribution.
ANNULMENT A judgment of a court voiding a marriage. A man and woman must be legally capable of entering into a valid marriage. If the parties are under a disability which may invalidate the marriage it can be annulled, that is, it can be avoided.
ALIMONY Court ordered payments for the support of a spouse or former spouse, payable during the lifetime of the payer, until the death or remarriage of the recipient spouse.
ANSWER The second Pleading in an action for divorce, separation or annulment, which is served in response to the Complaint and which admits or denies its allegations.
ANSWERING AFFIDAVIT An affidavit which is served in response to a notice of motion or order to show cause and supporting affidavit(s), which admits, denies or responds to its allegations. Same as answering affirmation.
APPEAL The process where a court reviews the proceedings resulting in an Order or Judgment of a lower Court and determines whether the decision of the lower court should be reversed or modified.
APPEARANCE The formal submission by a Defendant to the jurisdiction of the Court, by serving a notice of appearance, after having been served with a Summons. Appearance also refers to the physical presence of a party at Court.
BARGAIN AND SALE DEED. A deed that conveys property to a buyer for valuable consideration but lacks any guarantee from the seller about the validity of the title.
BARGAIN AND SALE DEED WITH COVENANT AGAINST GRANTORS ACTS A deed that conveys property to a buyer for valuable consideration and contains a guarantee from the seller than he has done nothing to encumber the title.
BASIC CHILD SUPPORT OBLIGATION Defined in the New York Domestic Relations Law and in the New York Family Court Act as " The sum derived by adding the amounts determined by the application of Subparagraphs Two and Three of Paragraph (c) of this Subdivision except as increased pursuant to Subparagraphs Four, Five, Six and Seven of such Paragraph." Obviously, this means nothing to you. See Settlement Considerations: Child Support.
BIGAMY Entering into a marriage to someone who is already married and whose marriage was not terminated or dissolved. A bigamous marriage is void.
BILATERAL Affecting or obligating both parties. A bilateral contract.
BITCH A word used by disgruntled husbands to describe their former wife to be.
See also “Whore”.
BURDEN OF GOING FORWARD A party's obligation to introduce enough evidence on an issue to have the issue decided by the fact-finder, rather than decided against that party in a peremptory ruling such as a summary judgment or a directed verdict.
BURDEN OF PROOF Method to instruct the factfinder concerning the degree of confidence our society thinks he/she should have in the correctness of his factual conclusions for a determination and to allocate the risk of making an error. Indicates the relative importance attached by society to the ultimate decision. In a typical civil case involving a monetary dispute between private parties, society has a minimal concern with the outcome of private suits, and plaintiff's burden of proof is a mere preponderance of the evidence. The parties to the lawsuit share the risk of error in roughly equal fashion. In a criminal case the interests of the defendant are of such
magnitude that they are protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment. Society imposes almost the entire risk of error upon itself, by requiring that the state prove the guilt of an accused beyond a reasonable doubt. The intermediate standard, is by "clear and convincing evidence," which is used in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant, where the interests at stake are more substantial than mere loss of money. In New York the preponderance of the evidence standard is utilized in most matrimonial actions and family court proceedings. The clear and convincing evidence standard is used in those cases where the issue is adultery; fraud; to establish paternity; to establish an acknowledgment of paternity; to terminate parental rights and establish the grounds for appointment of a guardian under New York Social Services Law § 384-b; to establish, in a civil proceeding to punish for civil contempt, violation of an order or subpoena.
CAUSE OF ACTION The legal circumstances which must be pleaded and proven before a divorce, separation, annulment, dissolution or other non-ancillary relief can be granted. See ancillary relief.
CHANGE OF VENUE A change of the place where the case is to be tried.
CHILD SUPPORT Support for a child (not taxable to the recipient or deductible to the payer spouse).
CHILD SUPPORT STANDARDS ACT (“CSSA”) The New York child support law, found in New York Domestic Relations Law, section 240 (1-b) and New York Family Court Act, section 413 (1)(b) which governs with regard to awards of child support and agreements for child support.
CLAIM A charge by one spouse against the other.
COLLATERAL ESTOPPEL. An affirmative defense barring a party from relitigating an issue determined against that party in an earlier action, even if the second action differs significantly from the first one.
COMMON LAW The body of law based on the English legal system, as distinct from a civil-law system. The body of law derived from judicial decisions, rather than from statutes or constitutions.
COMMON LAW MARRIAGE A marriage, which is consummated without the benefit of a ceremony performed by a licensed marriage performer, by a man and a woman, who intend to be married, hold themselves out as husband and wife, are competent to marry. All of the states are required by the “Full Faith and Credit clause of the United States Constitution to recognize common law marriages validly entered into in other jurisdictions. The common-law marriage jurisdictions are Alabama, Colorado, Georgia, Idaho, Iowa, Kansas, Montana, Ohio, Pennsylvania, Rhode Island, South Carolina, Texas, and the District of Columbia. Each jurisdiction has its own law as to what must be done by a man and a woman to enter into a common law marriage. For example, in Georgia there must be a mutual agreement to be husband and wife, by parties able to contract, followed by cohabitation. In Pennsylvania a “common law marriage can only be created by an exchange of words in the present tense, spoken with the specific purpose that the legal relationship of husband and wife is created. When applicable, the party claiming a common law marriage who proves constant cohabitation and a reputation of marriage "which is not partial or divided but is broad and general," raises the rebuttable presumption of marriage. This rebuttable presumption does not apply when both parties are alive and able to testify regarding the formation of the marriage contract.
COMMUNITY PROPERTY Property which is owned in common by a husband and wife because it was acquired during their marriage by means other than an inheritance or gift to one spouse. Each spouse holds a one half interest in the property. Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Puerto Rico, Texas, Washington and Wisconsin are community property jurisdictions.
COMPLAINT The first Pleading in action for divorce, separation, or annulment, setting forth the allegations upon which the requested relief is based.
CONDONATION The adultery of a spouse is not grounds for divorce if the complaining party forgives it, for example by continuing to have sex with the adulterer. Forgiveness. An affirmative defense to a divorce on the grounds of Adultery.
CONNIVANCE Procurement. An affirmative defense to a divorce on the grounds of Adultery. Even though the adultery of the defendant is established, a divorce may not be granted to the plaintiff if the adultery was committed by the procurement or with the connivance of the plaintiff. "Connivance" has been defined to be the corrupt consenting of a married person to the adultery of his spouse for which that party afterward seeks a divorce. Where a spouse has conspired with another person to have that person commit adultery with his wife, that spouse connives at such adultery. Where a spouse employs detectives or agents for the express purpose of committing adultery with the other spouse, there is a corrupt consent and a connivance at the adultery.
CONTEMPT OF COURT The willful and intentional failure to comply with a Court Order or Judgment. Contempt of Court is punishable by fine or imprisonment, or both.
CONTESTED CASE Any case where the Court must decide one or more issues that are not agreed upon by the parties. Cases are considered contested until all issues have been agreed upon.
COTENANCY A tenancy with two or more co-owners who have unity of possession. Examples are a joint tenancy and a tenancy in common. See Tenancy.
COURT Word commonly used by lawyers to refer to a judge. Also a building where cases are heard and decided by judges and/or juries.
COVENANT A formal agreement or promise, usually, in a contract.
CPLR Abbreviation for the New York Civil Practice Law and Rules, a statute which governs civil practice in the courts.
CROSS-EXAMINATION The questioning of a witness presented by the opposing party at a trial, hearing or at a deposition, to test the truth of that testimony or to develop it further.
CUSTODY The sum of the rights and obligations with respect to the upbringing of the child. “Sole custody”, which encompasses this sum, includes the right to have physical custody of the child, to the exclusion of all others, and to make all decisions regarding the health, education, welfare and religion of the child. "Joint legal custody," sometimes referred to as "divided" custody or "joint decision making," gives both parents a shared responsibility for and control of a child's upbringing. It may include an arrangement between the parents whereby they alternate physical custody of the child. Where there is "joint physical custody," the child lives alternatively with both parents. The daily child-rearing decisions are usually made by the parent with whom the child is then living, while the major decisions, such as those involving religion, education, medical care, discipline, or choice of school/camp, are jointly made.
DECREE A word which was used to describe the final ruling of the judge in an action for divorce, legal separation, or annulment. Same as Judgment.
DEED A written document instrument by which land is conveyed or transferred.
DEFAULT ORDER OR DEFAULT JUDGMENT An Order or Judgment granted by the Court without the other side's being heard because they failed to plead or submit papers within the time allowed or failed to appear at the trial or hearing.
DEFENDANT The one who defends the lawsuit brought by his/her spouse.
DEPENDANT COVENANT A covenant that depends on a party's prior performance of some act or condition. Until the performance of the act or condition, the other party does not have to perform his/her obligation.
DEPOSITION UPON ORAL QUESTIONS The testimony of a witness taken before a notary public, under oath, in response to questions by an attorney, and reduced to writing. Depositions are taken for the purpose of discovering the facts upon which a party's claim is based; obtaining financial information or discovering the substance of a witness's testimony prior to a trial or hearing. The deposition may be used to discredit a witness if he changes his testimony. Depositions are used to preserve the testimony of a witness who will be unable to appear at trial. Commonly referred to by lawyers and judges as an “EBT” (examination before trial).
DEPOSITION UPON WRITTEN QUESTIONS The testimony of a witness taken before a notary public, under oath, in response to written questions, submitted by the attorneys and answered in writing.
DIRECT EXAMINATION The initial questioning of a witness at a trial, hearing or deposition, by the attorney who called the witness to the stand to testify.
DIRECTED VERDICT A judgment entered on the order of a trial judge who takes over the fact-finding role of the jury because the evidence is so compelling that only one decision can reasonably follow or because it fails to establish a prima facie case. See verdict.
DEVIATE SEXUAL INTERCOURSE Sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and penis, or the mouth and the vulva.
DISCLOSURE Procedures followed by attorneys, usually permitted before a trial or hearing, in order to determine the nature, scope, and credibility of the opposing party's claim and his/her financial status. Disclosure devices include depositions, written interrogatories, notices to admit, notices to permit entry upon real property and notices to produce various documentation relating to issues which are decided in the case. Psychological examinations, blood tests, forensic examinations and court social-service investigations are also part of disclosure.
DISCRETION OF THE COURT The area of choice available to a judge to make a legally acceptable decision on his interpretation of the evidence.
DISTRIBUTIVE AWARD Tax free payments payable to either spouse, in a lump sum or over a period of time in fixed amounts, which the parties agree to in a valid agreement between the parties or which are awarded by the Court. These payments are made in lieu of or to supplement or facilitate or effectuate the division or distribution of property in a matrimonial action.
DRL Abbreviation for the New York Domestic Relations Law, a statute which governs matrimonial actions and adoptions.
EMANCIPATION The point at which a child comes of age. Children are emancipated in New York upon reaching the age of 21 or upon marriage, leaving the custodial residence if of employable age and refusing to adhere to reasonable parental authority and control, or entering the armed services. Emancipation ends a parent’s duty to support his child, unless there is an agreement providing otherwise. A child who becomes emancipated upon entering the armed services becomes unemancipated if he or she returns to his parents home upon discharge from the armed services. In some states children are emancipated upon reaching the age of 18.
EPTL Abbreviation for the New York Estates Powers and Trusts Law, a statute which governs inheritances and wills
EQUITABLE Just. Conformable to principles of justice and right. Existing in equity. Available or sustainable by an action in equity, or under the rules and principles of equity.
EQUITABLE DISTRIBUTION LAW (“EDL”). The term given to the several laws enacted in New York in 1980 which adopted rules for awards of maintenance and the distribution of property upon the dissolution of a marriage, changing the then existing alimony and common law property distribution laws of New York.
EQUITABLE DISTRIBUTION OF PROPERTY A system of distributing property acquired by spouses during their marriage in connection with a divorce or dissolution proceeding. The division is based on a variety of equitable factors, including the length of the marriage, relative financial contributions of the parties, contribution as a spouse and homemaker and respective need. Title to property in the name of either spouse does not necessarily restrict the Court's right to award all or part of that property to the other spouse as part of an Equitable Distribution.
EQUITY The system of law originating in the English Court of Chancery and superseding the common law and statute law when the two conflict.
EVIDENCE Documents, testimony or other material offered to the Court to prove or disprove allegations in the pleadings or in dispute.
EXECUTION A mandate issued by or on behalf of the court directing the sheriff to take possession of money, wages or property owned by a person or entity, and sell or otherwise liquidate it in order to satisfy a judgment entered against that person or entity.
EX PARTE An application made to a court by a party for relief without the other party having notice or being present, due either to a lack of notice or choice of the other party not to appear. An Order to Show Cause is an ex parte application to a court for relief and is permissible. However, ex parte communications with the court are a violation of the Canons of Ethics.
FCA An abbreviation for the New York Family Court Act, a statute which governs practice in the Family Court, a court of limited jurisdiction.
FOUNDATION The evidence that must be presented to the court before asking certain questions or offering documentary evidence on trial or at a hearing.
GROSS INCOME Defined in Internal Revenue Code 61 as all income from whatever source derived, including (but not limited to) the following items: (1) Compensation for services, including fees, commissions, fringe benefits, and similar items; (2) Gross income derived from business; (3) Gains derived from dealings in property; (4) Interest; (5) Rents; (6) Royalties; (7) Dividends; (8) Alimony and separate maintenance payments; (9) Annuities; (10) Income from life insurance and endowment contracts; (11) Pensions; (12) Income from discharge of indebtedness; (13) Distributive share of partnership gross income; (14) Income in respect of a decedent; and (15) Income from an interest in an estate or trust.
GROUNDS FOR DIVORCE The legal circumstances which must be pleaded and proven before a divorce can be granted. Also called a "Cause of Action."
HAGUE CONVENTION The Convention on the Civil Aspects of International Abduction of Children adopted at the Hague on October 25, 1980. It provides for a quick federal or state court proceeding, not on the merits of the custody dispute, for the return of a child wrongfully removed or wrongfully detained from his “habitual residence”.
HEARING Any proceeding before the Court where testimony is taken for the purpose of resolving disputed issues.
HOLD-HARMLESS When one spouse assumes liability for a debt or obligation and promises to protect the other spouse from any loss or expense in connection with it.
HOSTILE WITNESS A witness who demonstrates so much prejudice during direct examination that the party who has called him to testify is allowed to cross-examine him. The greater flexibility of cross-examination enables the questioner to ask leading questions and to attack the credibility of the witness.
IAS The Individual Assignment System. Soon after an action is started, the attorney(s) for the parties are required to file a Request for Judicial Intervention ("RJI") with the Clerk of the Court. The case is then assigned, by computer, to an individual judge who will handle every aspect of the case to its conclusion.
ICARA The International Child Abduction Remedies Act, 42 U.S.C. 11601, et seq.
which contains the implementing legislation for enforcing rights under the Hague Convention on the Civil Aspects of International Child Abduction. See Hague Convention.
INFANT A person under the age of twenty-one years.
IMPEACHMENT The act of proving that a witness is lying.
IMPUTED INCOME A finding by a court that is awarding maintenance or child support, that a parent or party has income or is capable of earning income, which he/she does not really have or does not really earn. The court may attribute income to that person from any resource available, such as non-income-producing assets; meals, lodging, memberships, automobiles, or other job benefits that are for personal use or personal economic benefit; fringe benefits from employment; and money, goods, or services provided by relatives and friends. It may also attribute income based on the persons education, earning capacity, former resources or income if it finds that the person has intentionally reduced resources or income or become unemployed in order to reduce or avoid his/her obligation for support.
IN CAMERA Out of the presence of the jury.
IN CAMERA INTERVIEW Interview of the child made on the record before a court reporter, by the judge, in a contested custody case. Usually held in the judges chambers. Sometimes the lawyers and law guardian are present when the child is questioned.
INCEST A marriage between spouses very closely related by blood. An marriage between ancestor and descendant, brother and sister, uncle and niece or aunt and nephew is incestuous and void.
INCOME Income is defined for purposes of awarding child support as gross (total) income as should have been or should be reported in the most recent federal income tax return.
INDEMNIFICATION To promise to reimburse another person in case of an anticipated loss. The same as Hold-Harmless.
INDEPENDENT COVENANT A covenant that does not depend on a party's prior performance of some act or condition.
IN ISSUE In dispute.
INJUNCTION A Court Order forbidding someone from doing a particular act which is likely to cause injury or property loss to another party (same as a Restraining Order).
INTERLOCUTORY Interim or temporary. Not a final resolution of the whole dispute or controversy.
IRC Abbreviation for the Internal Revenue Code, the law which requires us to pay
federal income tax, as well as other taxes
INTERROGATORIES A series of written questions served upon the opposing party in a lawsuit in order to discover certain facts regarding the disputed issues in the action. The answers to Interrogatories must be made in writing and signed, under oath, and served within a prescribed period of time.
IRREBUTTABLE OR CONCLUSIVE PRESUMPTION A presumption that cannot be overcome by any additional evidence or argument. See presumption.
JOINT PROPERTY Property held in the name of more than one person.
JOINT TENANCY (WITH RIGHT OF SURVIVORSHIP) A tenancy with two or more co-owners who take identical interests simultaneously by the same instrument and with the same right of possession. A joint tenancy differs from a tenancy in common because each joint tenant has a right of survivorship to the other's share (in some states). See Tenancy.
JUDGE The person who will decide the issues in your case fairly. Canon 3 (B) (3) of the Code of Judicial Conduct provides that a “ A judge shall be patient, dignified and courteous to litigants...lawyers and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, and of staff, court officials and others subject to the judge's direction and control”. Canon 3(B)(4) provides that a judge shall perform judicial duties without bias or prejudice against or in favor of any person.
JUDGMENT The determination of the rights of the parties in an action or special proceeding. It may be either interlocutory or final. A judgment refers to and states the result of the verdict or decision, or recites the default upon which it is based.
JUDGMENT-ROLL judgment roll. The papers and pleadings which are part of the record and must be filed with the judgment.
JUDICIAL NOTICE A court's acceptance, without requiring proof, of a well-known and indisputable fact.
JUDGMENT The Order of the Court determining the action. Same as Decree.
JURISDICTION IN PERSONAM (PERSONAL JURISDICTION) The power of the Court to make decisions which affects the parties, their children or their property.
JURY Six of your peers, who will decide the grounds for divorce if you do not trust the judge to decide your case fairly.
LACHES An equitable doctrine by which a court denies relief to a party who has unreasonably delayed in asserting his claim, when that delay has prejudiced the other party against whom relief is sought.
LAW GUARDIAN An attorney appointed by the judge, usually at your expense, to represent your child or children in a contested custody case (even though they are not parties to the case).
LEADING QUESTIONS Questions, which are asked of a party or witness who is testifying at a trial, hearing or deposition, that suggest the answer. For example, “Are you the plaintiff in this action?
LEGAL SEPARATION A Judgment of the Court or written Agreement directing or authorizing the spouses to live separate and apart. Actions for legal separation provide for maintenance, child custody, and support, but do not provide for Equitable Distribution of marital property. A judgment of separation does not dissolve the marriage, does not permit the parties to commit adultery and does not allow the parties to remarry. See Separation Action.
LEVERAGE FACTORS Particular considerations, based on the priorities of the parties, which induce them to settle disputed issues. The skillful use of these factors generally controls the successful outcome of a settlement.
MAINTENANCE Spousal support (deductible to the payer spouse and taxable as income to the recipient).
MARITAL PROPERTY Property which will be equitably distributed upon dissolution of the marriage. It includes all property acquired by either or both parties during the marriage, before the signing of a separation agreement, and before starting a matrimonial action. It does not matter how title to the property is held. Property acquired by gift from third parties or inheritance, and personal injury recoveries is not marital property.
MARRIAGE The legal union of a man and woman as husband and wife.
MATRIMONIAL ACTION A lawsuit for a separation, for an annulment or dissolution of a marriage, for a divorce, for a declaration of the nullity of a void marriage, for a declaration of the validity or nullity of a foreign judgment of divorce and for a declaration of the validity or nullity of a marriage, for a declaration of the validity or nullity of a marriage, and proceedings to obtain maintenance or a distribution of marital property following a foreign judgment of divorce.
MERGER The effect that a judgment has which absorbs an agreement into the judgment, so that the parties rights are limited to enforcing the judgment.
MAJORITY The status of one who has attained the age of majority (usually 18).
MISTRIAL A trial or hearing that ends before both sides have rested, due to the occurrence of some fundamental error that would render the trial or hearing invalid. Following a mistrial, the case must be tried again from the beginning.
MONEY JUDGMENT A judgment for a sum of money or directing the payment of a sum of money upon which execution is granted.
MOTION A written or oral application to the court for some particular relief, such as temporary support, an injunction, a temporary restraining order, an order compelling disclosure, or for attorney's fees, which must be made upon advance written notice of motion to the other party. A motion may also be made by Order to Show Cause.
NO-FAULT DIVORCE A marriage-dissolution system whereby divorce is granted without the necessity of one of the parties being guilty of marital misconduct.
NO GOOD SON OF A BITCH Word commonly used by angry former wife to describe ex-husband who is late in making alimony, child support or other financial payments. Sometimes referred to as dead beat dad, dead beat husband, cheat, loser or slime.
NOTICE OF ENTRY A Notice that is served upon a party that a judgment or order has been made and entered in the records of the clerk of the court, and the date that it was entered.
NOTICE OF MOTION A written which is served upon the other attorney or spouse telling them that on a certain day a motion will be made to the court for certain relief. The notice must indicate the date and place the motion is going to be made and contain copies of the affidavits, affirmations, papers and documents upon which the motion is being made.
NOTICE OF SETTLEMENT A notice telling the other attorney the date, time, place and name of the judge whom we are submitting an order or judgment for signature.
OPTING OUT AGREEMENT An Agreement made before or during marriage providing for the rights and obligations of the spouses, including, but not limited to maintenance, child support, custody, visitation, estate rights and property distribution, in the event of the dissolution of their marriage. See Settlement Agreement and Property Settlement Agreement.
ORDER The Court's ruling on a Motion requiring the parties to do certain things or setting forth their rights and responsibilities. An Order is reduced to writing, signed by the judge and filed with the Clerk of the Court.
PARENS PATRIAE The Court in its capacity as a protector of children and other persons who are not able to care for themselves.
PAROL-EVIDENCE RULE The principle that a writing intended by the parties to be a final embodiment of their agreement cannot be modified by oral evidence that adds to, varies, or contradicts the writing. This rule usually prevents a party from introducing, at a trial or hearing, outside evidence of negotiations that occurred before or while the agreement was being negotiated and reduced to its final written form. According to this rule evidence is not admissible to contradict or qualify a complete written contract.
PERFECTING AN APPEAL An Appeal is "perfected" when all of the required papers, such as the record or appendix and the appellants brief are filed with the Appellate Court.
PETITION A formal written request presented to a court. A pleading in a special proceeding.
PKPA The Parental Kidnaping Prevention Act, enacted by the Federal government to address interstate custody problems that continued to exist after the adoption of the Uniform Child Custody Jurisdiction Act. The Parental Kidnaping Prevention Act mandates that state authorities give full faith and credit to other States’ custody determinations, so long as those determinations were made in conformity with the provisions of the Parental Kidnaping Prevention Act. The Parental Kidnaping Prevention Act provisions regarding bases for jurisdiction, restrictions on modifications, preclusion of simultaneous proceedings, and notice requirements are similar to those in the Uniform Child Custody Jurisdiction Act. However, there are some significant differences.
PLAINTIFF The party who files the Lawsuit.
PLEADING A formal written application to the Court for relief and the written response to it. The Pleadings are the complaint, answer, counterclaim, and reply.
POVERTY INCOME GUIDELINES FOR A SINGLE PERSON Poverty income guidelines published annually by the Federal Department of Health and Human Services.
PRAYER That portion of a pleading, at the end, which specifies the relief that is requested of the Court.
PRIMA FACIE Latin for “on its face”. On first appearance but subject to further evidence. After the plaintiff rested the court denied the motion to dismiss because the plaintiff established a prima facie case for divorce.
PRESUMPTION A legal inference or assumption that a fact exists, based on the existence of some other fact or group of facts. Most presumptions are rules of evidence calling for a certain result in a given case unless the adversely affected party overcomes it with other evidence. A presumption shifts the burden of going forward to the opposing party, who can then attempt to overcome the presumption.
PRIVILEGE The right of a spouse to make admissions to an attorney, clergyman, psychiatrist, his/her spouse, a doctor or certified social worker which are not later admissible in evidence.
PROPERTY A thing of value. Property can be anything of value, including education, an educational degree or certificate, a license to practice a profession or trade, or work experience which enhances the earning potential of a spouse. For example, an interest in a profession or a professional career potential is marital property subject to equitable distribution.
PROPERTY SETTLEMENT AGREEMENT The settlement reduced to a written document. An Agreement made during marriage or during the pendency of a matrimonial action settling the action and providing for the rights and obligations of the spouses, including, but not limited to maintenance, child support, custody, visitation, estate rights and property distribution. See Stipulation of Settlement and Property Settlement Agreement.
PURSUANT TO In compliance with, in accordance with, as authorized by or under.
QUALIFIED DOMESTIC RELATIONS ORDER A judgment or order, that creates or recognizes the right of a spouse or child to receive all or a portion of the retirement benefits for which the other spouse is eligible under a retirement or profit sharing plan. Usually referred as a QDRO (pronounced quad-dro)
QUALIFIED MEDICAL CHILD SUPPORT ORDER A child support judgment or order, including an order approving a settlement agreement, that creates or recognizes the existence of an parents rights to receive benefits for which the other parent is eligible under a group health plan.
QUITCLAIM DEED A deed that conveys the owner's complete interest or claim in certain real property but that neither warrants nor professes that the title is valid.
REBUT To refute, oppose, or counteract (something) by evidence, argument, or contrary proof.
REBUTTABLE PRESUMPTION An inference drawn from certain facts that establish a prima facie case, which may be overcome by the introduction of contrary evidence. See Presumption.
REBUTTAL The introduction of evidence at a trial or hearing that is in response to new matter raised by the Defendant at an earlier stage of the trial or hearing.
RECRIMINATION An affirmative defense to a divorce on the grounds of Adultery. The plaintiff is not entitled to a divorce even though the adultery of the defendant is established, where the plaintiff has also been guilty of adultery under such circumstances that the defendant would have been entitled, if innocent, to a divorce.
RECUSAL Disqualification of a judge from a case. Canon 3(E)(1) of the Code of Judicial Conduct provides that a judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where: (a) (i) the judge has a personal bias or prejudice concerning a party or (ii) the judge has personal knowledge of disputed evidentiary facts concerning the proceeding; (b) the judge knows that (i) the judge served as a lawyer in the matter in controversy, or (ii) a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or (iii) the judge has been a material witness concerning it; (c) the judge knows that he or she, individually or as a fiduciary, or the judge's spouse or minor child residing in the judge's household has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other interest that could be substantially affected by the proceeding; (d) the judge knows that the judge or the judge's spouse, or a person known by the judge to be within the sixth degree of relationship to either of them, or the spouse of such a person:
(i) is a party to the proceeding; (ii) is an officer, director or trustee of a party; (iii) has an interest that could be substantially affected by the proceeding; (iv) is likely to be a material witness in the proceeding; (e) the judge knows that the judge or the judge's spouse, or a person known by the judge to be within the fourth degree of relationship to either of them, or the spouse of such a person, is acting as a lawyer in the proceeding. (f) Notwithstanding the provisions of subparagraphs (c) and (d) above, if a judge would be disqualified because of the appearance or discovery, after the matter was assigned to the judge, that the judge individually or as a fiduciary, the judge's spouse, or a minor child residing in his or her household has an economic interest in a party to the proceeding, disqualification is not required if the judge, spouse or minor child, as the case may be, divests himself or herself of the interest that provides the grounds for the disqualification.
RELIEF Whatever a party to a Lawsuit asks the Court to do; dissolve the marriage, award support, enforce a prior court order or decree, divide property, enjoin certain behavior, dismiss the Complaint of the other party. See Ancillary relief.
REPLY The pleading filed in answer to the allegations of a Counterclaim.
REPLY AFFIDAVIT An affidavit that is filed in further support of a motion and in response to the allegations of an answering affidavit. Same as Reply Affirmation.
RES JUDICATA An affirmative defense barring the same parties from litigating a second lawsuit on the same claim, or any other claim arising from the same transaction or series of transactions and that could have been, but was not, raised in the first lawsuit. The three essential elements are (1) an earlier decision on the issue, (2) a final judgment on the merits, and (3) the involvement of the same parties, or parties in privity with the original parties.
RULES OF EVIDENCE The rules that govern the method of presentation and admissibility of oral and documentary evidence at trials, hearings or depositions.
RULING The Court's determination on an objection or offer of evidence made during a trial or hearing. A ruling is no reduced to writing or signed by the judge.
SELF SUPPORT RESERVE 35% of the poverty income guideline amount for a single person as reported by the Federal Department of Health and Human Services for the last calendar year.
SEPARATE PROPERTY A term used to describe property that a spouse is entitled to keep, which will not be equitably distributed after a marriage is dissolved. It includes property acquired by a spouse before marriage; property acquired by bequest, devise, descent or gift from a party other than the spouse; compensation for personal injuries; property acquired in exchange for or the increase in value of separate property; and property described as separate property in a written agreement of the parties. This definition is subject to certain exceptions.
SEPARATION ACTION An action for a judgment of separation, separating the husband and wife forever, or for a limited period of time. Actions for legal separation must be based upon the fault grounds of cruel and inhuman treatment, adultery, abandonment, 3 years imprisonment and non-support. The court may provide in the judgement for maintenance, child custody, and support, but can not provide for Equitable Distribution of marital property. A judgment of separation does not dissolve the marriage, does not permit the parties to commit adultery and does not allow the parties to remarry.
SETOFF A debt or financial obligation of one spouse which is deducted from the debt or financial obligation of the other spouse.
SETTLEMENT The agreed resolution of disputed issues.
SETTLEMENT AGREEMENT The settlement reduced to a written document. An Agreement made during marriage or during the pendency of a matrimonial action settling the action and providing for the rights and obligations of the spouses, including, but not limited to maintenance, child support, custody, visitation, estate rights and property distribution. See Stipulation of Settlement and Property Settlement Agreement.
SHOW CAUSE ORDER (Same as Order to Show Cause) A Written application to the Court for some type of relief which is made upon such notice to the other party as the Court directs and which may contain a restraining order, temporary injunction, or other ex parte relief, pending the determination of the Motion. See Notice of Motion
STIPULATION OF SETTLEMENT The settlement dictated on the record in open court and reduced to a written document by the court reporter. Essentially the same as an agreement made during marriage or during the pendency of a matrimonial action settling the action and providing for the rights and obligations of the spouses, including, but not limited to maintenance, child support, custody, visitation, estate rights and property distribution. See Settlement Agreement and Property Settlement Agreement.
SPECIAL RELIEF A direction made in a matrimonial action to a spouse to maintain life, health, accident, medical and dental insurance for his spouse and/or children.
STARE DECISIS The doctrine of precedent which requires a court to follow earlier judicial decisions when the same points arise again in a lawsuit.
STATUS QUO The existing state of things; leaving things as they are without modification or alteration. "Things" can be anything from support and visitation arrangements to property rights.
STATUTE A law passed by a legislative body.
STATUTE OF LIMITATIONS A statute establishing a time limit for suing in a civil case, based on the date when the claim accrued (as when the adultery occurred or was discovered). A statute establishing a time limit for prosecuting a crime, based on the date when the offense occurred.
STIPULATION An Agreement made between the parties to a lawsuit, or their attorneys, either in writing or on the record in open court.
SUBPOENA A mandate issued by the court, or on behalf of the court, by an attorney, which is served upon a person or corporation, who is the “witness”. A subpoena requires the witness to appear, give testimony and/or produce documents or things at a deposition, trial or hearing. A subpoena is normally accompanied by a witness fee set by statute, as well as a mileage fee for transportation costs to and from the place to which the individual is subpoenaed. Failure to comply with the Subpoena could result in a fine or imprisonment, or both, as punishment by the Court for contempt of court.
SUI JURIS Of full age and capacity.
SUMMARY JUDGMENT A judgment granted on a claim about which there is no genuine issue of material fact and upon which the movant is entitled to prevail as a matter of law.
SUMMONS A written notice to the Defendant that an action has been commenced against him or her by the filing of a summons or summons and complaint, and requiring that the Defendant appear within a specific period of time to by serving notice of appearance or an answer to the Complaint.
SUR-REBUTTAL Testimony offered by the Defendant to counter any new matter contained in the rebuttal testimony offered by the Plaintiff.
TAKING AN APPEAL An Appeal is "taken" by serving and filing a Notice of Appeal within 30 days after service of the Order or Judgment to be appealed with Notice of Entry.
TEMPORARY OR PENDENTE LITE MOTIONS Applications to the Court for interim relief pending the final judgment of divorce, separation, or annulment. Typical temporary motions include motions for temporary maintenance, child support, attorneys' fees, expert fees, custody, visitation, enforcement or modification of prior temporary orders. The Court enters a pendente lite order after determining a motion. Motions are brought on by the service of a notice of motion or order to show cause, with supporting affidavits.
TENANCY The possession or occupancy of real estate by right or title. The period of such possession or occupancy.
TENANCY BY THE ENTIRETY A joint tenancy that arises between husband and wife when a deed or will conveys realty to both of them, as husband and wife. Each spouse has an undivided interest in the whole property and a right of survivorship. This type of tenancy exists in only a few states. A tenant by the entirety may not destroy the other spouse's right of survivorship by transferring his or her interest to another. The husband and wife may together convey their estate to a third person or mortgage it, but a mortgage or conveyance by one spouse to a third person only conveys the right to take the property if that spouse survives the death of the other. If they both wish to convert their tenancy into a tenancy in common or a joint tenancy, they may do so. Upon the death of either husband or wife the survivor automatically acquires title to the share of the deceased spouse. See Tenancy.
TENANCY IN COMMON A tenancy by two or more persons, in equal or unequal undivided shares, each person having an equal right to possess the whole property but no right of survivorship. Each tenant is deemed to own by himself, with most of the attributes of independent ownership, a physically undivided part of the entire parcel. See Tenancy.
TESTIMONY Statements made under oath by a witness in a Court hearing, trial or deposition.
TRIAL A formal Court hearing to decide disputed issues raised by the pleadings.
UCCJA The Uniform Child Custody Jurisdiction Act (UCCJA), which was the former Article 5-A of the New York Domestic Relations Law, repealed on April 28, 2002.
UCCJEA The Uniform Child Custody Jurisdiction and Enforcement Act which became effective in New York on April 28, 2002 as Article 5-A of the New York Domestic Relations Law. The Uniform child Custody Jurisdiction and Enforcement Act revises the law on child custody jurisdiction in light of the Parental Kidnaping Prevention Act, (PKPA), which contains provisions which are inconsistent with the Uniform Child Custody Jurisdiction Act, and the Violence Against Women Act (VAWA). The purpose of the Uniform Child Custody Jurisdiction and Enforcement Act is to revise the Uniform Child Custody Jurisdiction Act to bring the Uniform Child Custody Jurisdiction Act into compliance with the Parental Kidnaping Prevention Act and other federal statutes such as the Violence Against Women Act, as well as to make those changes to the Uniform Child Custody Jurisdiction Act which are necessary as a consequence of inconsistent court interpretations.
VACATED When a Court order or judgment is erroneous, it is eliminated, usually by the court, after a motion is made on notice, or by an appellate court.
VERDICT A jury's finding or decision on the factual issues of a case. In a nonjury trial, a judge's decision on the issues of a case.
VERIFICATION A pleading or affidavit made under oath and signed before a notary public.
VISITATION A limited form of custody. See Custody.
WARRANTY DEED A deed containing one or more covenants of title, especially a deed that expressly guarantees the grantor's good, clear title and that contains covenants concerning the quality of title.
WITNESS A person who gives testimony, usually under oath, at a trial, hearing or deposition. Children may testify although not under oath.
WRIT OF HABEAS CORPUS An order which must be signed by a judge (called a “writ”) directing the person who is confining another person, to bring that person before the court, to determine if the detained party's imprisonment or detention is not illegal. In addition to being used to test the legality of an arrest or commitment, the writ is a procedural device that is used to obtain a custody or visitation determination. The writ may be served on any day of the week.
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