December 1, 2019
New Website for Lawyers
Trial of a New York Matrimonial and Custody Action (www.nysdivorce.net) deals with the trial of a New York matrimonial and custody action. It focuses on the procedure and rules of evidence for the trial of a New York matrimonial action or custody case, and contains questions for the examination and cross-examination of witnesses.
Recent Legislation
Laws of 2019, Ch 523, enacted and effective November 20, 2019, amended Family Court Act § 412(2)(d), Domestic Relations Law § 236[B](5-a) (b)(5) and Domestic Relations Law § 236[B](6)(b)(4)
Laws of 2019, Ch 523, enacted and effective November 20, 2019, amended the Family Court Act and the Domestic Relations Law to change the biennial date of adjustment of the "income cap" under the maintenance guidelines law to coincide with the biennial adjustment date of the "income cap" under the Child Support Standards Act. Family Court Act § 412(2)(d), Domestic Relations Law § 236B(5-a)(b)(5) and § 236B(6)(b)(4) were amended to fix the date of the biennial adjustment of the temporary, post-divorce and spousal maintenance "income caps" at March 1" rather than January 31', as currently provided. By making the date March 1st rather than January 31st, the adjustment of the maintenance income cap would coincide with the date of adjustment of the child support combined parental income cap, as well as the date of adjustment of the federal poverty income level and self-support reserve.
The maintenance guidelines law which was enacted in 2015 provided that the maintenance income cap would be set initially at $175,000 and would increase pursuant to an adjustment formula keyed to increases in the CPI on January 31, 2016 and every two years thereafter. January 31' was the date set for adjustment of the temporary maintenance income cap under the temporary maintenance law, enacted in 2010, in effect prior to enactment of the maintenance guidelines law. It also was the date that the child support combined income cap pursuant to the Child Support Standards Act would have been adjusted.
However, effective January 31, 2016, the date of adjustment of the Child Support Combined Income Cap was changed to March 1" rather than January 31' to conform with the date of adjustment of the self-support reserve pursuant
to Social Services Law § 111-I (2)(b).
The adjustment date of the maintenance income cap was changed so that
the adjustments in the maintenance and child support income caps all occur at the same time.
Family Court Act § 412(2)(d) was amended to read as follows:
(d) "income cap" shall mean up to and including one hundred eighty-four thousand dollars of the payor's annual income; provided, however, beginning March first, two thousand twenty and every two years thereafter, the income cap amount shall increase by the sum of the average annual percentage changes in the consumer price index for all urban consumers (CPI-U) as published by the United States department of labor bureau of labor statistics for the prior two years multiplied by the then income cap and then rounded to the nearest one thousand dollars. The office of court administration shall determine and publish the income cap. (Laws of 2019, Ch 523, § 1, effective November 20, 2019)
Domestic Relations Law § 236[B](5-a) (b)(5) was amended to read as follows:
(5) "Income cap" shall mean up to and including one hundred eighty-four thousand dollars of the payor's annual income; provided, however, beginning March first, two thousand twenty and every two years thereafter, the income cap amount shall increase by the sum of the average annual percentage changes in the consumer price index for all urban consumers (CPI-U) as published by the United States department of labor bureau of labor statistics for the prior two years multiplied by the then income cap and then rounded to the nearest one thousand dollars. The office of court administration shall determine and publish the income cap. (Laws of 2019, Ch 523, § 2, effective November 20, 2019)
Domestic Relations Law § 236[B](6)(b)(4) was amended to read as follows:
(4) "Income cap" shall mean up to and including one hundred eighty-four thousand dollars of the payor's annual income; provided, however, beginning March first, two thousand twenty and every two years thereafter, the income cap amount shall increase by the sum of the average annual percentage changes in the consumer price index for all urban consumers (CPI-U) as published by the United States department of labor bureau of labor statistics for the prior two years multiplied by the then income cap and then rounded to the nearest one thousand dollars. The office of court administration shall determine and publish the income cap. (Laws of 2019, Ch 523, § 3, effective November 20, 2019)
Laws of 2019, Ch 434 enacted October 29, 2019, amended Family Court Act §
1028-a (i), effective October 29, 2019.
Family Court Act § 1028-a(a)(i) defines who may apply to become a foster parent under the circumstances described in that section. Applicants had been limited to relatives who were related within the third degree of consanguinity to either parent. This class of applicants excluded non-blood relatives, such as step-grandparents and "fictive" kin, who are included in the class of kinship foster parents who may exit foster care and become kinship guardianship with subsidies pursuant to social services law section 458-a thru 458-f. Family Court Act § 1028-a was amended to include to include, as eligible to apply to become foster parents, all persons who are related to children as described in social services law §458-a (3) (a), (b), or (c) who meet Family Court Act § 1028-a requirements.
Family Court Act § 1028-a provides:
§ 1028-a. Application of a relative to become a foster parent
(a) Upon the application of a relative to become a foster parent of a child in foster care, the court shall, subject to the provisions of this subdivision, hold a hearing to determine whether the child should be placed with a relative in foster care. Such hearing shall only be held if:
(i) the person is related to the child as described under paragraph (a), (b), or (c) of subdivision three of section four hundred fifty-eight-a of the social services law;
(ii) the child has been temporarily removed under this part, or placed pursuant to section one thousand fifty-five of this article, and placed in non-relative foster care;
(iii) the relative indicates a willingness to become the foster parent for such child and has not refused previously to be considered as a foster parent or custodian of the child, provided, however, that an inability to provide immediate care for the child due to a lack of resources or inadequate housing, educational or other arrangements necessary to care appropriately for the child shall not constitute a previous refusal;
(iv) the local social services district has refused to place the child with the relative for reasons other than the relative's failure to qualify as a foster parent pursuant to the regulations of the office of children and family services; and
(v) the application is brought within six months from the date the relative received notice that the child was being removed or had been removed from his or her home and no later than twelve months from the date that the child was removed.
(b) The court shall give due consideration to such application and shall make the determination as to whether the child should be placed in foster care with the relative based on the best interests of the child.
(c) After such hearing, if the court determines that placement in foster care with the relative is in the best interests of the child, the court shall direct the local commissioner of social services, pursuant to regulations of the office of children and family services, to commence an investigation of the home of the relative within twenty-four hours and thereafter expedite approval or certification of such relative, if qualified, as a foster parent. No child, however, shall be placed with a relative prior to final approval or certification of such relative as a foster parent.
(Added L.2005, c. 671, § 3, eff. March 15, 2006. Amended L.2006, c. 12, § 2, eff. March 15, 2006; L.2019, c. 434, § 1, eff. Oct. 29, 2019.)
Laws of 2019, Ch 491, effective January 15, 2020, amended Domestic Relations Law §112 and Public Health Law
The public health law was amended by adding a new section, § 4138-e. According to the Assembly Memorandum in support of the legislation the amendment is intended to restore adult adoptees' right to access information that non-adopted persons, including those who "age-out" of foster care, have a legal right to obtain. In New York, an adopted person cannot access his or her original birth certificate unless the adopted person goes through a judicial proceeding and, even then, the outcome does not guarantee that access will be granted. This amendment will allow adult adoptees, or if the adopted person is deceased, the adopted person's direct line descendants, or the lawful representatives of such adopted person (living) or lawful representatives of such deceased adopted person's direct line descendants, to obtain a certified copy of the adopted person's original long form birth certificate. Adoptees will continue, under existing law, to be able to secure "non-identifying" information which may include, but not be limited to, their religious and ethnic heritage and medical history information that may be necessary for preventive health care and the treatment of illnesses linked to family history and genetics. To whatever extent "non-identifying" information may be unavailable, the restoration of the civil right to one's own original birth certificate will restore equal opportunity for seeking
such information.
Public Health Law § 4138-e provides that an adopted person eighteen years of age, or if the adopted person is deceased, the adopted person's direct line descendants, or the lawful representatives of such adopted person, or lawful representatives of such deceased adopted person's direct line descendants can obtain a certified copy of the adopted person's original long form birth certificate, from the commissioner or a local registrar, in the same manner as such certificates are available to persons born in the state of New York who were not adopted. It also requires the commissioner to provide the adopted person or other authorized person with the background information about the adopted child and the adopted child's birth parents sent to the commissioner pursuant to subdivision 1 of § 114 of the domestic relations law.
In addition, in the event that the commissioner does not have the
original birth certificate of an adopted person, it requires courts and other agencies that have records containing the information that would have appeared on the adopted person's original long form birth certificate to provide such information, including all identifying information about the adopted person's birth parents, to the adult
adopted person or other authorized person upon a simple written request therefor that includes proof of identity. (Section 1)
Public Health Law § 4138, subd 4 was amended to authorize the commissioner to make microfilm or other suitable copies of an original certificate of birth in accordance with section 4138-e and to authorize the commissioner to provide a certified copy of the original long form certificate of birth to an adult adopted person in accordance with § 4138-e of the public health law. (Section 2)
Public health law § 4138 subd. 5 was amended to state that a certified copy of the original long form certificate of birth of such a person shall be issued to an adult adopted person in accordance with § 4138-e of the public health law. (Section 3)
Public Health Law § 4138 subd. 3 (a) was amended to authorize a local registrar to provide a certified copy of the original long form certificate of birth to an adult adopted person in accordance with § 4138-e of the public health law. (Section 4)
Public Health Law § 4138 subd. 3 (b) was amended to authorize a local registrar to provide a certified copy of the original long form certificate of birth to an adult adopted person in accordance with § 4138-e of the public health law. (Section 5)
Public Health Law § 4138 subd. 8 was added of the public health law to authorize adopted persons eighteen years of age or older, or the birth parent (s), to submit a change of name and/or address to be attached to the original birth certificate of the adopted person. (Section 6)
Public Health Law § 4138-d was amended to remove the provision that allows an adoption agency to restrict access to non-identifying information that is not in the best interest of the adoptee, the biological sibling or the birth parent(s). (Section 7)
Public Health Law § 4104 was amended to include additional provisions under vital statistics that would be applicable to the city of New York. (Section 8)
Domestic Relations Law § 114, subd. 1 was amended to require that any order of adoption direct that the information to be provided to the adoptive parents about the child and the child's birth parents shall include the child's and birthparents' information at the time of surrender and, in addition, that the information provided to the
adoptive parents also be provided to the commissioner of health. (Section 9)
The effective date of the amendments is January 15, 2020. (Section 10)
Appellate Division, First Department
Appellate Division, Second Department
Second Department affirms judgment directing father to provide exclusively kosher food and make “all reasonable efforts to ensure that the children’s appearance and conduct comply with ‘Hasidic’ religious requirements
In Cohen v Cohen, 2019 WL 6139488 (2d Dept.,2019) the parties were married in 2009 and had two children, born in 2011 and 2013. During the early years of the marriage, the parties practiced Satmar Hasidic Judaism. At a certain point, the defendant (father) became non-religious, although he continued to appear religious in his dress and customs. The parties separated in December 2016. In January 2017, the plaintiff (mother) commenced the action for a divorce. Following a nonjury trial, the Supreme Court awarded the mother sole physical and legal custody of the children, with parental access to the father. The father was directed to provide the children with exclusively kosher food and to make “all reasonable efforts to ensure that the children’s appearance and conduct comply with the ‘Hasidic’ religious requirements of the [mother] and of the children’s schools as they were raised while the children are in [his] physical custody.” The court emphasized that it was not mandating any specific mode of dress or religious practices for the father during his periods of parental access.
The Appellate Division affirmed the custody award. It observed that when presented as an issue, religion may be considered as one of the factors in determining the best interests of a child, although it alone may not be the determinative factor. New York courts will consider religion in a custody dispute when a child has developed actual religious ties to a specific religion and those needs can be served better by one parent than the other.
The father challenged the Supreme Court’s direction that he provide the children with exclusively kosher food and make “all reasonable efforts to ensure that the children’s appearance and conduct comply with the ‘Hasidic’ religious requirements of the [mother] and of the children’s schools as they were raised while the children are in [his] physical custody.” The father contended that this provision was unconstitutional and not in the children’s best interests, relying primarily on the Court’s decision in Weisberger v. Weisberger. 154 A.D.3d 41, 60 N.Y.S.3d 265.
The Appellate Division distinguished Weisberger, where the Supreme Court enforced a religious upbringing clause in the parties’ separation agreement by ordering that, during any period of parental access or during any appearance at the children’s schools, the mother “must practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy,” or be relegated to supervised therapeutic visitation. On appeal in Weisberger, the Second Department determined that it was “wholly inappropriate to use supervised [parental access] as a tool to compel the plaintiff to comport herself in a particular religious manner”. This Court held that the Supreme Court had run afoul of constitutional limitations by compelling the mother to herself practice a religion, rather than merely directing her to provide the children with a religious upbringing. Here, by contrast, the father was directed to make reasonable efforts to ensure the children’s compliance with their religious requirements. The Supreme Court expressly stated that it was not mandating any specific mode of dress or religious practices for the father during his periods of parental access.
The Appellate Division pointed out that in the absence of a written agreement, the custodial parent may determine the religious training of the children. Since the mother was the custodial parent entitled to determine the children’s religious training, and since the children had consistently adhered to Hasidic practices throughout their lives, the Supreme Court providently exercised its discretion in directing the father to provide the children with exclusively kosher food and to make all reasonable efforts to ensure the children’s compliance with their religious requirements while they are in his physical custody. It emphasized, as did the Supreme Court, that the defendant was not required, at any time, to himself comply with any religious practices. It further emphasized that the standard was one of reasonable efforts, not perfection.
Husband who waive interest in wife’s degree, directed to contribute to wife’s student loan debt where attainment of degree did benefit the marriage by enhancing her earning capacity and bringing more income into the marriage.
In Santamaria v Santamaria, --- N.Y.S.3d ----, 2019 WL 5945643, 2019 N.Y. Slip Op. 08239 (2d Dept.,2019) the parties were married on December 3, 2000, and had two children. The plaintiff-husband commenced the action for a divorce on August 2, 2013.
The Appellate Division held that Supreme Court providently exercised its discretion in awarding the plaintiff-husband a separate property credit of $332,000 related to the marital residence, and awarding the defendant a 50% share of any equity in the residence that accrued from 2002 until the date of its sale. The evidence at trial demonstrated that in 2002, the plaintiff’s mother transferred ownership of the subject property, where she resided, to the plaintiff and retained a life estate in the property. In 2010, after the death of plaintiff’s mother, the plaintiff transferred ownership of the property to himself and the defendant. At the time, the property was appraised at a value of $332,000. In 2011, after renovations were conducted, the parties and their children moved to the property, and it became the marital residence. The plaintiff’s conveyance of the home in 2010 to himself and the defendant presumptively changed the character of the home from separate property to marital property. It agreed with the court’s determination to award the plaintiff a separate property credit in the amount at which the residence was valued at the time the property was transferred to both parties. Furthermore, in light of the evidence that significant marital funds were used over the years to help preserve the plaintiff’s separate property asset, the court providently exercised its discretion in awarding the defendant 50% of any equity in the marital residence that accrued from 2002 until the date of its sale.
The Appellate Division held that considering the relevant factors, the Supreme Court should have awarded the defendant-wife maintenance of $750 per month, commencing December 15, 2015, for a period of four years or until she remarries. Thus, it modified the judgment of divorce accordingly.
The defendant contended that the Supreme Court improvidently exercised its discretion in awarding the plaintiff child support retroactive to the date of the commencement of the action, rather than the date of the judgment of divorce. She argued that during the litigation, the parties and their children resided together in the marital residence, and the children’s needs were provided for by both parties.
Under the particular facts and circumstances of this case, the Appellate Division disagreed with the Supreme Court’s determination to award the plaintiff child support retroactive to the date of the commencement of the action. While the action was commenced on August 2, 2013, the plaintiff was not awarded residential custody of the children until the court issued an order dated November 18, 2015. The plaintiff failed to establish that he had de facto residential custody of the children at any earlier point in time. Thus, under these particular facts and circumstances, it found that the court should have awarded child support retroactive to November 18, 2015, the date of the custody order. In light of the financial circumstances of the parties, it agreed with the court’s determination directing the defendant to pay retroactive child support arrears at a rate of $150 per month, and not awarding the plaintiff statutory interest on the unpaid balance.
The Appellate Division agreed with the Supreme Courts direction to the plaintiff to pay $20,000 of defendant’s student loan debt. The plaintiff contended that the court should not have directed him to pay any portion of the defendant’s student loan debt, because he waived any interest in the defendant’s Bachelor’s degree, and the evidence failed to establish what portion of the loans was incurred during the marriage. It observed that a spouse is generally required to bear the obligation of repayment of the balance of a student loan taken out by that spouse during the course of the marriage where “no benefit inured to the marriage” (Heydt–Benjamin v. Heydt–Benjamin, 127 A.D.3d 814, 815, 6 N.Y.S.3d 582). Here, however, there was evidence that the defendant’s attainment of her Bachelor’s degree in business administration did benefit the marriage by enhancing her earning capacity and bringing more income into the marriage. The testimony established that prior to obtaining her Bachelor’s degree, the defendant was only able to work in restaurants and a hotel as a waitress, earning a very limited salary. At the time of the trial, however, the defendant had been employed with Winston Staffing Services as a headhunter, earning a salary of $50,000 annually plus commissions. Although the plaintiff waived any interest in the defendant’s degree, the defendant’s enhanced earning ability did benefit the marriage, and it was not unreasonable for the Supreme Court to direct the plaintiff to pay a portion of the defendant’s student loans, which were incurred during the marriage and were owed since 2005. The evidence at trial demonstrated that the outstanding student loan balance was approximately $52,000, and that the majority of the student loans were incurred during the marriage. Thus, it agreed with the court’s determination to direct the plaintiff to pay $20,000 of the outstanding student loan debt.
Appellate Division, Fourth Department
Family Court erred when it determined that father’s alleged violation of the child support order was willful because it did not afford the father opportunity to be heard and present witnesses
In Matter of Green v Lafler, --- N.Y.S.3d ----, 2019 WL 6042451, 2019 N.Y. Slip Op. 08306 (4th Dept.,2019) the Appellate Division agree with the father that the court erred when it determined that the father’s alleged violation of the child support order was willful because it did not afford the father with the opportunity to be heard and present witnesses. Although “[n]o specific form of a hearing is required, ... at a minimum the hearing must consist of an adducement of proof coupled with an opportunity to rebut it” (Thompson, 59 A.D.3d at 1105, 873 N.Y.S.2d 786. Moreover, “[i]t is well settled that neither a colloquy between a respondent and [the] [c]ourt nor between a respondent’s counsel and the court is sufficient to constitute the required hearing” (Davis, 104 A.D.3d at 1228, 960 N.Y.S.2d 806). None of the parties’ appearances on the violation petition consisted of an adducement of proof coupled with an opportunity to rebut it. At most, there was merely “a colloquy” between the father and Support Magistrate, which is insufficient to constitute the required hearing. Moreover, there was nothing in the record to establish that petitioner mother provided admissible evidence with respect to the father’s alleged willful failure to pay child support, nor was there any admissible evidence submitted by the Support Collection Unit. Also, the father was never given the opportunity to present evidence rebutting the allegations in the petition. It reversed the order and remitted the matter to Family Court for a hearing on the petition in compliance with Family Court Act § 433.
November 16, 2019
New Website for Lawyers
Trial of a New York Matrimonial and Custody Action (www.nysdivorce.net) deals with the trial of a New York matrimonial and custody action. It focuses on the procedure and rules of evidence for the trial of a New York matrimonial action or custody case, and contains questions for the examination and cross-examination of witnesses.
New York Court Rules
By Joint orders, effective February 15, 2019, and June 1, 2019, the Judicial Departments of the Appellate Division amended the rule regarding the Statement of Client’s Rights and Responsibilities set forth in section 1400.2 of Part 1400 of Title 22 of the Official Compilations of Codes, Rules and Regulations of the State of New York.
The amended Rule provides as follows:
Section 1400.2. Statement of client's rights and responsibilities
An attorney shall provide a prospective client with a statement of client's rights and responsibilities in a form prescribed by the Appellate Divisions, at the initial conference and prior to the signing of a written retainer agreement. If the attorney is not being paid a fee from the client for the work to be performed on the particular case, the attorney may delete from the statement those provisions dealing with fees. The attorney shall obtain a signed acknowledgment of receipt from the client. The statement shall contain the following:
STATEMENT OF CLIENT'S RIGHTS AND RESPONSIBILITIES
An attorney is providing you with this document to inform you of what you, as a client, are entitled to by law or by custom. To help prevent any misunderstanding between you and the attorney, please read this document carefully.
If you ever have any questions about these rights, or about the way your case is being handled once you retain the attorney, you are responsible to ask your attorney. Your attorney should be readily available to represent your best interests and to keep you informed about your case.
An attorney may not refuse to represent you on the basis of race, creed, color, sex, sexual orientation, age, national origin or disability.
You are entitled to an attorney who will be capable of handling your case; show you courtesy and consideration at all times; represent you zealously; and preserve your confidences and secrets that you reveal in the course of the relationship, to the extent permitted by law. You are responsible to communicate honestly, civilly and respectfully with your attorney.
If you are hiring an attorney you and your attorney are required to sign a written retainer agreement which must set forth, in plain language, the nature of the relationship and the details of the fee arrangement. Before you sign the retainer agreement, you are responsible to read it and ask the attorney any questions you have before you sign it. At your request, and before you sign the agreement, you are entitled to have your attorney clarify in writing any of its terms, or include additional provisions.
You are entitled to fully understand the proposed rates and retainer fee before you sign a retainer agreement, as in any other contract. The retainer fee you pay to the attorney, as is written in the retainer agreement, may not be enough money to pay for all the time that the attorney works on your case.
You may refuse to enter into any fee arrangement that you find unsatisfactory.
An attorney may not request a fee that is contingent on the securing of a divorce or on the amount of money or property that may be obtained.
An attorney may not request a retainer fee that is nonrefundable. That is, should you discharge the attorney, or should the attorney withdraw from the case with Court permission, before the retainer has been used up, the attorney is entitled to be paid commensurate with the work performed on your case and any expenses. The attorney must return to you any balance of the retainer that has not been used. However, the attorney may enter into a minimum fee arrangement with you that provides for the payment of a specific amount below which the fee will not fall based upon the attorney's handling of the case to its conclusion.
You are entitled to know the approximate number of attorneys and other legal staff members who will be working on your case at any given time and what you will be charged for the services of each.
You are entitled to know in advance how you will be asked to pay legal fees and expenses, and how the retainer, if any, will be spent.
You may be responsible at the beginning of the case or before or after the trial to contribute to or pay the other party's attorney's fees and other costs if the Court has ordered you to do so.
The other party may be responsible to contribute to or to pay your attorney's fees, if the Court orders the other party to do so. However, if the other party fails to pay the Court ordered fee, you are still responsible for the fees owed to your attorney and experts in your case.
You are required to pay for court filing fees, process servers as well as fees for expert reports, testimony, depositions and/or trial testimony and you may seek reimbursement from the other party.
If you engage in conduct which is found to be frivolous or meant to intentionally delay the case you could be fined or sanctioned and/or responsible for additional fees.
At your request, and after your attorney has had a reasonable opportunity to investigate your case, you are entitled to be given an estimate of approximate future costs of your case. That estimate shall be made in good faith but may be subject to change due to facts and circumstances that develop during your case. There are no guarantees that the cost of your case will be as originally estimated.
You are entitled to receive a written, itemized bill on a regular basis, at least every 60 days.
You are expected to review the itemized bills sent to you by your attorney, and to raise any objections or errors in a timely manner in writing. Time spent in discussion or explanation of bills will not be charged to you.
You are responsible to be honest and truthful in all discussions with your attorney, and to provide all relevant information and documentation to enable her or him to competently prepare your case. Attorneys and clients must make reasonable efforts to maintain open communication during business hours throughout the representation. An attorney may seek to be relieved as your attorney if you are not honest and truthful with her or him.
You are entitled to be kept informed of the status of your case, and to be provided with copies of correspondence and documents prepared on your behalf or received from the court or your adversary.
Your attorney is required to discuss the following with you: a) the automatic orders that are in effect once either party files a summons with notice; b) the law that provides for the financial support of the children, the Child Support Standards Act, if you and the other party have children under the age of twenty-one; and c) the law that provides for the financial support of the parties, the Maintenance Guidelines Statute.
You are responsible to be present and on time in court at the time that conferences, oral arguments, hearings and trials are conducted unless excused by the Judge or the part rules of the assigned Judge.
You are entitled to make the ultimate decision on the objectives to be pursued in your case, and to make the final decision regarding the settlement of your case. Your attorney has the right to send you written communications if your attorney disagrees with how you want your case handled.
Your attorney's written retainer agreement must specify under what circumstances he or she might seek to withdraw as your attorney for nonpayment of legal fees. If an action or proceeding is pending, the court may give your attorney a “charging lien,” which entitles your attorney to payment for services already rendered at the end of the case out of the proceeds of the final order or judgment. In some cases your attorney may exercise a “retaining lien” which, subject to Court proceedings, may allow them to keep your file as security.
You are under no legal obligation to sign a confession of judgment or promissory note, or to agree to a lien or mortgage on your home to pay for legal fees. Your attorney's written retainer agreement must specify whether, and under what circumstances, such security may be requested. In no event may such security interest be obtained by your attorney without prior court approval and notice to your adversary. An attorney's security interest in the marital residence cannot be foreclosed against you.
You are entitled to have your attorney's best efforts exerted on your behalf, but no particular results can be guaranteed.
If you entrust money with an attorney for an escrow deposit in your case, the attorney must safeguard the escrow in a special bank account. You are entitled to a written escrow agreement, a written receipt, and a complete record concerning the escrow. When the terms of the escrow agreement have been performed, the attorney must promptly make payment of the escrow to all persons who are entitled to it.
Once your Judgment of Divorce is signed, if you are re-retaining an attorney you must sign a new retainer agreement.
If you are expecting your attorney to prepare and file documents related to the transfer of a house, co-op or lease, that must be specified in the retainer agreement. The signing of an agreement or Court order that transfers title does not transfer a co-op apartment or a house. A separate document must be prepared and filed.
In the event of a fee dispute, you may have the right to seek arbitration pursuant to Part 137 of the Rules of the Chief Administrative Judge where the dispute involves a sum of more than $1,000.00 or less than $50,000.00 unless you agree otherwise. Your attorney will provide you with the necessary information regarding arbitration in the event of a fee dispute, or upon your request.
Receipt Acknowledged:
___________________________________ Attorney's signature
___________________________________ Client's signature
___________________________________ Date Form 1400.2-1(2/19)
UNIFIED COURT SYSTEM OF THE STATE OF NEW YORK
STATEMENT OF CLIENT'S RIGHTS AND RESPONSIBILITIES
(To be used only when representation is without fee)
An attorney is providing you with this document to inform you of what you, as a client, are entitled to by law or by custom. To help prevent any misunderstanding between you and the attorney, please read this document carefully.
If you ever have any questions about these rights, or about the way your case is being handled once you retain the attorney, you are responsible to ask your attorney. Your attorney should be readily available to represent your best interests and to keep you informed about your case.
An attorney may not refuse to represent you on the basis of race, creed, color, sex, sexual orientation, age, national origin or disability.
You are entitled to an attorney who will be capable of handling your case; show you courtesy and consideration at all times; represent you zealously; and preserve your confidences and secrets that you reveal in the course of the relationship to the extent permitted by law. You are responsible to communicate honestly, civilly and respectfully with your attorney.
Even though you are being represented by an attorney without fee, you may be responsible at the beginning of the case or before or after the trial to contribute to or pay the other party's attorney's fees and other costs if the Court has ordered you to do so.
Even though you are being represented by an attorney without fee, the other party may be responsible to contribute to or to pay your attorney's or expert fees in your case, if the Court orders the other party to do so.
You may be required to pay for court filing fees, process servers as well as fees for expert reports, testimony, depositions and/or trial testimony and you may seek reimbursement from the other party. The attorney will discuss this with you.
If you engage in conduct which is found to be frivolous or meant to intentionally delay the case you could be fined or sanctioned and/or responsible for additional fees.
You are responsible to be honest and truthful in all discussions with your attorney, and to provide all relevant information and documentation to enable her or him to competently prepare your case. Attorneys and clients must make reasonable efforts to maintain open communication during business hours throughout the representation. An attorney may seek to be relieved as your attorney if you are not honest and truthful with her or him.
You are entitled to be kept informed of the status of your case, and to be provided with copies of correspondence and documents prepared on your behalf or received from the court or your adversary.
Your attorney is required to discuss the following with you: a) the automatic orders that are in effect once either party files a summons with notice; b) the law that provides for the financial support of the children, the Child Support Standards Act, if you and the other party have children under the age of twenty-one; and c) the law that provides for the financial support of the parties, the Maintenance Guidelines Statute.
You are responsible to be present and on time in court at the time that conferences, oral arguments, hearings and trials are conducted unless excused by the Judge or the part rules of the assigned Judge.
You are entitled to make the ultimate decision on the objectives to be pursued in your case, and to make the final decision regarding the settlement of your case. Your attorney has the right to send you written communications if your attorney disagrees with how you want your case handled.
You are entitled to have your attorney's best efforts exerted on your behalf, but no particular results can be guaranteed.
If you entrust money with an attorney for an escrow deposit in your case, the attorney must safeguard the escrow in a special bank account. You are entitled to a written escrow agreement, a written receipt, and a complete record concerning the escrow. When the terms of the escrow agreement have been performed, the attorney must promptly make payment of the escrow to all persons who are entitled to it.
If you are expecting your attorney to prepare and file documents related to the transfer of a house, co-op or lease, you may have to make arrangements with another attorney to do so, and if the attorney charges you a fee, you must sign a retainer agreement with the other attorney. The signing of an agreement or Court order that transfers title does not transfer a co-op apartment or a house. A separate document must be prepared and filed.
Receipt Acknowledged:
___________________________________ Attorney's signature
___________________________________ Client's signature
___________________________________ Date Form 1400.2-2(6/19)
Appellate Division, First Department
Appellants argument that he “simply forgot the date,” does not constitute a reasonable excuse for vacating a default.
In Krystal R. V Kriston L, 2019 WL 5876030 (1st Dept.,2019) the Appellate Divison held that, in refusing to vacate Respondents default, that he failed to demonstrate a reasonable excuse for his failure to appear at the hearing on the family offense petition (see CPLR 5015[a][1]). Although respondent contended that he was evicted a month before the hearing and subsequently lost his phone, he also admitted that he “simply forgot the date,” which does not constitute a reasonable excuse (see Matter of Jenny F. v. Felix C., 121 AD3d 413 [1st Dept 2014]). He was present during the scheduling of the hearing, and it was his responsibility to verify the date with his attorney or the Family Court itself (see e.g. Matter of Yadori Marie F. [Osvaldo F.], 111 AD3d 418, 419 [1st Dept 2013]).
Whether respondent eventually satisfied his arrears has no bearing on the court’s finding of willfulness. Support Magistrate not required to address probation as an additional enforcement remedy where raised by Support Magistrate
In Matter of Eve S.P., v. Steven N.S., --- N.Y.S.3d ----, 2019 WL 5876171, 2019 N.Y. Slip Op. 08130 (1st Dept.,2019) an enforcement proceeding, the Appellate Division found that by submitting evidence that respondent was delinquent in his support payments (see Family Court Act § 454[3][a]), petitioner established prima facie that respondent willfully violated his child support obligations. It held that whether respondent eventually satisfied his arrears had no bearing on the court’s finding of willfulness (see Matter of Shkaf v. Shkaf, 162 AD3d 1152, 1155 [3d Dept 2018]), particularly in light of his previous violations of his support obligations.
The Appellate Division rejected Petitioners argument that, in addition to entering a money judgment against respondent for the arrears, the support magistrate was required to address probation as an additional enforcement remedy, and that the support magistrate’s failure to set forth the “facts and circumstances” on which the decision not to place respondent on probation was based violated FCA § 454(4). Section 454(4) provides, “The court shall not deny any request for relief pursuant to this section unless the facts and circumstances constituting the reasons for its determination are set forth in a written memorandum of decision.” The Court held that probation is a matter within the sound discretion of Family Court (Matter of Delaware County Dept. of Social Servs. v. Brooker, 272 A.D.2d 835, 836 [3d Dept 2000], citing FCA § 454[3][a]). The record showed that the possibility of placing respondent on probation was first raised by the support magistrate. Petitioner cited no authority in support of her contention that the support magistrate’s aforementioned omission amounted to a statutory violation requiring remand for further proceedings.
“Very high burden” necessary for challenging prenuptial agreement
In DiPietro v Vatsky, --- N.Y.S.3d ----, 2019 WL 5791626, 2019 N.Y. Slip Op. 07989 (1st Dept.,2019) the Appellate Division held that Defendant husband’s efforts to meet his “very high burden” for challenging the parties’ prenuptial agreement failed (Anonymous v. Anonymous, 123 A.D.3d 581, 582, 999 N.Y.S.2d 386 [1st Dept. 2014]). The parties, both educated and savvy professionals with significant assets of their own, were each represented by independent counsel, and entered into the prenuptial agreement after a period of negotiations several months before the marriage. Plaintiff’s alleged failure to disclose did not provide a ground to set aside the prenuptial agreement particularly, here, where defendant proceeded to execute the prenuptial agreement despite his claim that plaintiff refused to supply him with financial documents. It agreed with the motion court that the prenuptial agreement and its amendments were not the product of overreaching. The prenuptial agreement, which included joint waivers of maintenance, the right to equitable distribution, and the right to election, was not so “manifestly unfair” as to warrant equity’s intervention. Although the transfer of defendant’s house to plaintiff may not have been in his best financial interest, defendant’s attorney made his objection to this provision abundantly clear. Defendant proceeded to execute the prenuptial agreement over his attorney’s objection. Thus, even if, in retrospect, this specific provision was improvident or one-sided, it did not provide a ground to vitiate the prenuptial agreement.
Appellate Division, Second Department
An award of counsel fees under Family Ct Act ' 438 should be based upon the totality of the circumstances, including the equities and circumstances of each particular case
In Roberts v Roberts, N.Y.S.3d , 2019 WL 5581904, 2019 N.Y. Slip Op. 07787 (2d Dept.,2019) the father filed a petition for a downward modification of his maintenance and child support obligations. Following a hearing, the court dismissed the father=s petition, granted the mother=s attorney counsel fees, and directed the entry of a money judgment in favor of the mother=s attorney and against the father in the sum of $9,221.25. The Appellate Division affirmed. It observed that a court may allow counsel fees at any stage of a proceeding under Family Court Act article 4 (see Family Ct Act ' 438). In determining an appropriate award of counsel fees, the court must consider factors such as the parties= ability to pay, the merits of the parties= positions, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of counsel=s performance and the fees under the circumstances. Ultimately, the award should be based upon the totality of the circumstances, including the equities and circumstances of each particular case. Under the totality of the circumstances of this case, the mother was entitled to an award of counsel fees, and the Support Magistrate did not improvidently exercise her discretion in directing the entry of a money judgment in favor of the mother=s attorney.
Unless it can be shown that the trial court improvidently exercised that discretion, its equitable distribution determination should not be disturbed
In Ambrose v Ambrose, N.Y.S.3d , 2019 WL 5582047, 2019 N.Y. Slip Op. 077577 (2d Dept.,2019) the parties were married in January 2012, and were the parents of one child, born in 2013. In October 2015, the plaintiff commenced the action for a divorce. The Appellate Division held, inter alai, that Supreme Court did not improvidently exercise its discretion in denying the defendant a distributive share of the plaintiff=s retirement assets. The trial court is vested with broad discretion in making an equitable distribution of marital property and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed. Upon consideration of the relevant statutory factors and all of the attendant circumstances, including, inter alia, the short duration of the parties= marriage, the age and health of the parties, and that the defendant was awarded full title to her nonvested retirement assets, which were also subject to equitable distribution, there was no basis upon which to disturb the court=s determination.
Appellate Division, Fourth Department
Written notice of counsel’s motion to withdraw is required. Purported withdrawal without proof that reasonable notice was given is ineffective
In Matter of Gonzalez v Bebee, --- N.Y.S.3d ----, 2019 WL 5850893 (Mem), 2019 N.Y. Slip Op. 08027 (4th Dept.,2019) the Appellate Division reversed an order which inter alia, sentenced respondent to jail for contempt of court and an order , in effect, confirmed the determination of the Support Magistrate, upon the father’s purported default, that he willfully violated a prior child support order and directed that he be incarcerated. It held that the Support Magistrate erred in allowing the father’s attorney to withdraw as counsel and in proceeding with the hearing in the father’s absence. “An attorney may withdraw as counsel of record only upon a showing of good and sufficient cause and upon reasonable notice to the client ... [, and a] purported withdrawal without proof that reasonable notice was given is ineffective” (Matter of Williams v. Lewis, 258 A.D.2d 974, 974, 685 N.Y.S.2d 382 [4th Dept. 1999]; see CPLR 321[b][2]; Matter of La’Derrick W., 63 A.D.3d 1538, 1539, 880 N.Y.S.2d 805 [4th Dept. 2009]). The father’s attorney did not make a written motion to withdraw. Counsel merely agreed when the Support Magistrate, after noting the father’s failure to appear for the hearing, offered to relieve her of the assignment. The absence of evidence that the father was provided notice of his counsel’s decision to withdraw in accordance with CPLR 321(b)(2) rendered the Support Magistrate’s finding of default improper, and Family Court thus erred in confirming those findings. It remitted the matter to Family Court for the assignment of new counsel and a new hearing on the violation petition of petitioner mother.
