1. law, govt and politics

William P. Statsky
New York Supplement To Accompany
Family Law
Fifth Edition
Prepared by
Cathryn F. Kent, Esq.
Finger Lakes Community College
A u s t r a l i a
C a n a d a
M e x i c o
S i n g a p o r e
S p a i n
U n i t e d
K i n g d o m
U n i t e d
S t a t e s
CONTENTS
1 Introduction to Family Law and Practice
2 Ethics and Malpractice in Family Law
3 Compiling a Family History
4 Premarital Agreements and Cohabitation Agreements
5 Traditional Marriage and the Alternatives
6 Annulment
7 Divorce Grounds and Procedure
8 Spousal Support, Property Division, and the Separation Agreement
9 Child Custody
10 Child Support
11 Tax Consequences of Separation and Divorce
12 The Legal Rights of Women
13 Illegitimacy and Paternity Proceedings
14 The Legal Status of Children
15 Adoption
16 The New Science of Motherhood
17 Torts and Family Law
Appendix A
In this supplement, a page reference follows each head (Statsky–000). This page reference correlates with William
Statsky’s textbook, Family Law, Fifth Edition.
This supplement is not a practice guide. It should not be relied on to answer legal questions concerning actual client
situations. Statements of statutes are not complete or verbatim; they are excerpts or summaries, and are paraphrased
unless an exact quote is indicated by quotation marks. The legal assistant or practitioner must consult primary and
secondary sources of New York law concerning specific client situations.
ii
1
INTRODUCTION TO FAMILY
LAW AND PRACTICE
YOUR STATE STATUTORY CODE (Statsky 17 )
The statutory law related to family law and practice in the state of New York can be found in
a wide variety of statutes covering both the substantive and procedural aspects of law. Only
the predominant statutes will be covered in this chapter; however, it is important to note that
the following list is not complete and other relevant statutes will be mentioned from time to
time throughout this supplement.
Substantive Law
The prevailing statute associated with the substantive area of family law is the New York State
Domestic Relations Law (DRL). The DRL governs the areas of divorce, division of marital
property, child and spousal support, child custody, and adoption, among others.
Further substantive issues relating to family law can be found in the New York State Family Court Act (FCA), which also governs the areas of child and spousal support, child custody,
and adoption along with family- and/or child-related criminal actions.
Finally, the New York State Social Services Law (SSL) touches upon the substantive areas
of adoption, governing foster care, the Putative Father Registry, and the Statewide Central Register of Child Abuse and Maltreatment, among other topics.
Procedural Law
Three primary statutes govern the procedural aspects of family law: New York State Civil Practice Law and Rules (CPLR), New York State Family Court Act (FCA), and New York State Surrogate’s Court and Procedure Act (SCPA).
The CPLR governs the procedural aspects of all civil litigation cases in the state of New
York. Family issues generally fall under the umbrella of civil actions.
The FCA and the SCPA establish the procedures that must be followed within their respective courts: family court and surrogate’s court. Although the overwhelming number of
cases in this area of law are handled in New York State Supreme Court and New York State
Family Court, New York State Surrogate’s Court may handle parental termination proceedings, adoptions, guardianships, and paternity actions.
1
STATE COURT OPINIONS AND DIGESTS (Statsky 17 )
Official Reporters
The official case reporters in New York are as follows:
The New York Reporter (NY) covers cases arising out of the New York State Court of Appeals. The Appellate Division Reporter (AD) covers cases arising out of the four Appellate Divisions within the state. The Miscellaneous Reporter (Misc.) covers cases arising out of the trial
courts within the state.
Unofficial Reporters
The unofficial case reporters in the state of New York are as follows: The New York Supplement
(NYS) reports all cases that were originally found in the official reporters. The North East Reporter (NE) covers those cases found within the northeast states that are especially significant.
LEGAL ENCYCLOPEDIAS (Statsky 18 )
New York Jurisprudence, published by West Group, is a legal encyclopedia found in New York.
2
2
ETHICS AND MALPRACTICE
IN FAMILY LAW
FEES (Statsky 30 )
At the initial client conference for the representation of a client in a domestic relation matter
and prior to signing a retainer agreement, an attorney is required to provide the client with a
copy of a “Statement of Clients Rights and Responsibilities.” 22 NYCRR § 1400.2. The wording
for this statement is proscribed by statute and is as follows:
Unified Court System of the State of New York Statement
of Client’s Rights and Responsibilities
Your 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 your attorney please read this document carefully.
If you ever have any questions about these rights, or about the way your case is being
handled, do not hesitate to ask your attorney. He or she should be readily available to
represent your best interests and 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 are revealed in the course of the relationship.
You are entitled to a written retainer agreement which must set forth, in plain language, the nature of the relationship and the details of the fee arrangement. 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.
You may refuse to enter into any fee arrangement that you find unsatisfactory.
Your 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.
Your attorney may not request a retainer fee that is nonrefundable. That is, should you
discharge your attorney, or should your attorney withdraw from the case, before the
retainer is used up, he or she is entitled to be paid commensurate with the work performed on your case and any expenses, but must return the balance of the retainer to
you. However, your 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 handling of the case to its conclusion.
3
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.
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, which estimate shall be made in good faith but may be subject to change due
to facts and circumstances affecting the case.
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 by counsel, and to raise any objections or errors in a timely manner. Time spent in discussion or explanation of bills will
not be charged to you.
You are expected to be truthful in all discussions with your attorney, and to provide all
relevant information and documentation to enable him or her to competently prepare
your case.
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.
You have the right to be present in court at the time that conferences are held.
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’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.
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 cover 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.
In the event of a fee dispute, you may have the right to seek arbitration. Your attorney
will provide you with the necessary information regarding arbitration in the event of
a fee dispute, or upon your request.
4
Receipt Acknowledged:
_____ Attorney’s signature
_____ Client’s signature
_____ Date
In addition to the Statement of Client Rights and Responsibilities, an attorney and client in a
domestic relations matter must sign a written retainer agreement and file a copy of the same,
along with a statement of net worth, with the court within ten (10) days of its execution. 22 NYCRR § 1400.3. The retainer agreement must contain the following provisions:
1.
2.
3.
4.
Names and addresses of the parties entering into the agreement.
Nature of the services to be rendered.
Amount of the advance retainer, if any, and what it is intended to cover.
Circumstances under which any portion of the advance retainer may be refunded. Should
the attorney withdraw from the case or be discharged prior to the depletion of the advance
retainer, the written retainer agreement shall provide how the attorney’s fees and expenses
are to be determined, and the remainder of the advance retainer shall be refunded to the
client.
5. Client’s right to cancel the agreement at any time and how the attorney’s fee will be determined and paid should the client discharge the attorney at any time during the course of
the representation.
6. How the attorney will be paid through the conclusion of the case after the retainer is depleted and whether the client may be asked to pay another lump sum.
7. Hourly rate of each person whose time may be charged to the client and any out-of-pocket
disbursements for which the client will be required to reimburse the attorney. Any changes
in such rates or fees shall be incorporated into a written agreement constituting an amendment to the original agreement, which must be signed by the client before it may take effect.
8. Any clause providing for a fee in addition to the agreed-upon rate, such as a reasonable
minimum fee clause, must be defined in plain language and must set forth the circumstances under which such fee may be incurred and how it will be calculated.
9. Frequency of itemized billing, which shall be at least every 60 days. The client may not be
charged for time spent in discussion of the bills received.
10. Client’s right to be provided with copies of correspondence and documents relating to the
case, and to be kept apprised of the status of the case.
11. Whether and under what circumstances the attorney might seek a security interest from
the client, which can be obtained only upon court approval and on notice to the adversary.
12. Under what circumstances the attorney might seek to withdraw from the case for nonpayment of fees, and the attorney’s right to seek a charging lien from the court.
13. Should a dispute arise concerning the attorney’s fee, the client may seek arbitration. The
attorney shall provide information concerning fee arbitration in the event of such dispute
or upon the client’s request.
22 NYCRR § 1400.3
5
CONFLICT OF INTEREST (Statsky 32)
Sex With A Client (Statsky 37 )
Title 22 of New York Codes, Rules and Regulations (NYCRR) § 1200.29-a(b) states that “A
lawyer shall not . . . in domestic relations matters, enter into sexual relations with a client during the course of the lawyer’s representation of the client.” The key term in this rule is “enter.”
If an attorney is engaged in sexual relations with a client prior to commencing a professional
relationship, he or she will not be found to have violated the ethical rule. Sanders v. Rosen. 159
Misc. 2d 563, 605 NYS 2d 805 (Supreme Court, New York County, 1993).
6
3
COMPILING A
FAMILY HISTORY
The information contained in the main text is applicable to the state of New York.
7
4
PREMARITAL AGREEMENTS
AND COHABITATION
AGREEMENTS
PREMARITAL AGREEMENTS (Statsky 68 )
New York State requires that a prenuptial agreement be in writing. New York General Obligations Law (NY GOL) § 5-701. The state further restricts the agreement in that a husband and
wife may not contract to alter or dissolve the marriage. NY GOL § 5-311. In addition, neither
spouse may contract to be relieved from his or her liability to support the other in such a manner that he or she will become a public charge. NY GOL § 5-311. Case law has extended NY
GOL § 5-311 to prohibit the parties from agreeing to be relieved of their obligation to support
their minor children. LaPorte v. LaPorte, 85 Misc. 2d 1009, 381 NYS 2d 752 (Sup. Ct., Queens
County, 1976).
COHABITATION AGREEMENTS (Statsky 90 )
New York does not recognize implied cohabitation agreements such as the one in the case of
Marvin v. Marvin, 18 Cal. 3d 660, 557 P.2d 106,134 Cal. Rptr. 815 (1976). However, cohabitation
agreements expressly stated, either through verbal or written words, have been upheld. Morone
v. Morone, 50 NY 2d 481, 413 N.E.2d 1154, 429 NYS 2d 592 (1980).
8
5
TRADITIONAL MARRIAGE
AND THE ALTERNATIVES
LEGAL ISSUES PRIOR TO MARRIAGE (Statsky 104 )
In 1962, New York abolished all actions based on breach of contract to marry, alienation of affection, criminal conversation, and seduction. New York Civil Rights Law (NY Civ. R. Law)
§ 80-a.
It is important to note, however, that NY Civ. R. Law § 80-a did not abolish a plaintiff’s right
to sue for fraud in lieu of a breach of contract to marry. Tuck v. Tuck, 14 NY 2d 341, 200 NE2d
554, 251 NYS 2d 653 (1964).
CEREMONIAL MARRIAGE (Statsky 118 )
The Domestic Relations Law (DRL) provides that individuals 18 years of age or older may enter into marriage. NY DRL § 7(1). It further provides that individuals at least 16 years of age
and less than 18 years of age must have parental consent to be married. NY DRL § 15(2). If the
individuals are at least 14 years of age but less than 16 years of age, they must have both
parental and judicial consent to enter into marriage. NY DRL § 15(3). No one under the age of
14 may enter into marriage in the state of New York. NY DRL § 15-a.
The state of New York requires that an authorized officiant, such as a member of the clergy,
a judge, or a mayor perform the marriage ceremony. NY DRL § 11. However, there are no specific ceremonial guidelines for the marriage except that at least one witness must be present at
the ceremony (other than the officiant) and the parties must state that “they take each other as
man and wife.” NY DRL § 12.
Since the marriage declaration must take place before an authorized officiant and a witness, proxy marriages are not permitted in New York. However, New York will permit a couple to solemnize their marriage via a written contract signed before two witnesses and acknowledged by a judge of a court of record. NY DRL § 11(4).
At least 60 days but no less than 24 hours prior to the marriage ceremony, the engaged couple must obtain a marriage license from a town or city clerk to present to the marriage officiant.
NY DRL §§ 13 and 13(b). If the officiant performs the marriage ceremony without first receiving the marriage license or does so with the belief that either party is incapacitated, he or she
shall be guilty of a misdemeanor and “shall be punished by a fine not less than fifty dollars nor
more than five hundred dollars or by imprisonment for a term not exceeding one year.” NY
DRL § 17.
New York has abolished all blood tests other than that for sickle cell anemia. AfricanAmericans are required to submit to a test for sickle cell anemia prior to the issuance of a marriage license unless it violates the religious beliefs of the applicants. NY DRL § 13-aa. It should
be noted that NY DRL § 13-aa goes on to state that no license should be denied based on the fact
that the test proved positive and that no marriage be invalidated due to the absence of such test.
9
COVENANT MARRIAGES (Statsky 121)
New York does not provide for covenant marriages.
COMMON LAW MARRIAGE (Statsky 123 )
New York does not permit common law marriages although it will recognize valid common
law marriages entered into in other states. In Re Estate of Watts, 31 NY 2d 491, 294 NE 2d 195,
341 NYS 2d 609 (1973).
PUTATIVE MARRIAGES (Statsky 127 )
New York does not permit putative marriages.
SAME-SEX MARRIAGES (Statsky 128 )
New York does not permit same-sex marriages.
10
6
ANNULMENT
GROUNDS RELATING TO THE LEGAL CAPACITY TO MARRY
(Statsky 153)
Prior Existing Marriage (Bigamy) (Statsky 153)
Crime
New York State Penal Law (NY Penal Law) § 255.15 states that a person is guilty of bigamy
when he or she “contracts or purports to contract a marriage with another person at a time
when he has a living spouse, or the other person has a living spouse.” Bigamy is considered to
be a Class E felony. NY Penal Law § 255.15.
Annulment: The Civil Action
NY DRL § 6 states that bigamous marriages are “absolutely void.”
Consanguinity and Affinity Limitations (Statsky 154)
In the state of New York, a marriage is considered to be incestuous (and therefore void) if a
marriage occurs between any of the following:
1. An ancestor and a descendant
2. A brother and sister of either the whole or the half blood
3. An uncle and niece or an aunt and nephew
NY DRL § 5
Such marriages are void. NY DRL goes on to state that any individuals who enter into this
type of marriage and the official who solemnizes the marriage will be fined not less than 50
dollars and no more than 100 dollars; further they may be imprisoned for up to six months. NY
DRL § 5.
Nonage (Statsky 156)
No one under the age of 14 years may marry in the State of New York. NY DRL § 15-a. Such
marriage is void.
Marriages in which at least one party is at least 14 years of age and less than 18 years of age
may be voidable in New York. NY DRL § 7. The statute clearly states that nonage shall not be
an absolute right to an annulment but the court will consider the same when determining
whether to issue an annulment. NY DRL § 7.
11
Physical Disabilities (Statsky 157 )
If one party to a marriage is unable to enter into marriage for physical reasons, such will be the
basis for an annulment in the state of New York. NY DRL § 7.
GROUNDS RELATING TO THE INTENT TO MARRY (Statsky 159 )
Mental Disabilities (Statsky 163)
New York law states that marriages in which one individual has been incurably mentally ill for
five or more years are voidable. NY DRL § 7.
New York further states that marriages entered into when one party is incapable of understanding what he or she is doing are voidable. NY DRL § 7.
Duress (Statsky 165 )
If an individual enters into the marriage state as a result of duress or force, such marriage is
considered to be voidable in New York. NY DRL § 7.
Fraud (Statsky 166)
If an individual enters into the marriage state as a result of fraud, such marriage is considered
to be voidable in New York. NY DRL § 7.
CONSEQUENCES OF ANNULMENT DECREE (Statsky 173)
Legitimacy of Children from an Annulled Marriage (Statsky 173)
New York State legitimizes children from an annulled marriage. NY DRL § 24(1).
Alimony and Disposition of Property Acquired before the Marriage Was
Annulled (Statsky 173)
Alimony (called “maintenance” in New York) and disposition of property acquired before the
marriage was annulled is handled just as if the parties divorced. NY DRL § 236(B)(2). This topic
will be discussed in detail in Chapter 8 of this supplement.
Custody and Child Support (Statsky 174)
After an annulment, custody and child support are handled as if the parties had divorced. NY
DRL § 240.
12
7
DIVORCE GROUNDS
AND PROCEDURE
NO-FAULT GROUNDS FOR DIVORCE (Statsky 181)
New York does not recognize no-fault grounds for divorce. The closest ground to a no-fault divorce is that of living separate and apart for one year pursuant to a separation agreement. NY
DRL § 170(6).
FAULT GROUNDS FOR DIVORCE (Statsky 187 )
In New York, the grounds for divorce are as follows:
1. Cruel and inhuman treatment of the plaintiff by the defendant that so endangers the physical or mental well-being of the plaintiff as to render it unsafe or improper for the plaintiff
to continue to cohabit with the defendant
2. Abandonment by the defendant for a period of at least one year
3. Confinement of the defendant in prison for at least three consecutive years after the marriage of the plaintiff and defendant
4. Adultery
5. Living separate and apart for one or more years pursuant to a decree of separation
6. Living separate and apart for one or more years pursuant to a written separation agreement
JUDICIAL SEPARATION (Statsky 190 )
In New York, the grounds for a judicial separation are as follows:
1. Cruel and inhuman treatment of the plaintiff by the defendant that so endangers the physical or mental well-being of the plaintiff as to render it unsafe or improper for the plaintiff
to continue to cohabit with the defendant
2. Abandonment by the defendant for a period of at least one year
3. Neglect or refusal to provide support as charged by the court
4. Adultery
5. Confinement of the defendant in prison for at least three consecutive years after the marriage of the plaintiff and defendant
NY DRL § 200.
13
DOMICILE (Statsky 194 )
In order to use the New York State Court system to adjudicate an annulment, divorce, or separation, a party must meet one of the following residency requirements:
1. The parties were married in New York State and one of the parties has been a resident of
the state continuously for at least one year prior to the commencement of the action.
2. The parties resided in New York State as husband and wife and either party is a resident
of the state when the action is commenced and has been a resident for one continuous year
immediately prior to the commencement of the action.
3. The cause of the action occurred in this state and either party has been a resident of the
state for a continuous period of at least one year immediately prior to the commencement
of this action.
4. The cause of action occurred in this state and both parties are residents of the state at the
time of the commencement of the action.
5. Either party has been a resident of the state of New York for a period of at least two years
immediately preceding the commencement of this action.
NY DRL § 230.
JURISDICTION (Statsky 197 )
Kinds of Jurisdiction (Statsky 198)
Subject-Matter Jurisdiction
New York State Supreme Court has exclusive jurisdiction over divorce.
In Rem Jurisdiction
If one of the parties is a resident of the state of New York at the time the divorce action is commenced, the Supreme Court is deemed to have jurisdiction over the “marital status” or “marital res.” NY Civil Practice Law and Rules (NY CPLR) § 314(1).
Personal Jurisdiction
Service of process on matrimonial defendants in New York may be made by personal service
without leave of court or by any other method allowable under the CPLR but only with court
approval. NY DRL § 232.
14
PRE-TRIAL MATTERS (Statsky 204 )
Pleadings (Statsky 204)
In the state of New York, all matrimonial pleadings, other than a complaint for divorce based
on adultery, must be verified. NY DRL § 211. Further, the complaint must contain the following information:
1. The time, place, and circumstances surrounding each action for which the defendant
stands accused. NY CPLR § 3016(c).
2. A statement that the plaintiff has, to the best of his or her knowledge, taken the appropriate steps or will take all appropriate steps (prior to the final entry of a judgment of divorce)
in his or her power to remove any barrier to the defendant’s remarriage following the divorce or that the defendant has waived in writing this requirement. NY DRL § 253(2).
The procedure for an action for divorce in the state of New York is as follows:
1. The plaintiff files a Summons with Notice (or Summons and Complaint) and Application
for Index Number with the County Clerk. The cost of the index number is $170.
2. Within 120 days after the purchase of the index number, the plaintiff must have the defendant served and file the Affidavit of Service with the County Clerk.
3. Forty-five days after the service of the Summons with Notice (or Summons with Complaint), one of the following must be filed:
a. Request for Judicial Intervention and Preliminary Conference before a Referee
b. A Notice of No Necessity is filed, providing 120 days to file the Request for Judicial Intervention, which costs $75.
4. The case then goes to the Matrimonial Screening Part where the conference will be scheduled.
5. Five days before the scheduled conference the following documentation must be submitted to the court:
a. Date-stamped Retainer Agreement
b. Date-stamped Summons, Affidavit of Service, Verified Complaint, and Verified Answer
c. Conference information form
d. Statement of Net Worth (form is provided in Appendix A)
e. Statement of Proposed Disposition
6. At the first conference, a referee and the parties will examine the issues, schedule a deadline to complete discovery and file a Note of Issue, and schedule future conferences as
needed.
7. If the matter is settled in a conference, a stipulation is placed on the record and the parties
along with their attorneys sign an Adoption of Oral Stipulation.
8. If the matter cannot be settled during the conferences, the case will be scheduled for trial.
15
8
SPOUSAL SUPPORT,
PROPERTY DIVISION,
AND THE SEPARATION
AGREEMENT
ALIMONY PAYMENTS AND PROPERTY DIVISION:
INTRODUCTION (Statsky 249 )
Alimony in the state of New York is called “maintenance” or “spousal maintenance,” and it is
available for both men and women. NY DRL § 236 (Part B) (1)(a). If the parties have not entered into an agreement, the New York State Domestic Relations Law has established 11 factors to be considered in determining the amount and duration of maintenance:
1. The income and property of the respective parties including marital property distributed
under equitable distribution provisions
2. The duration of the marriage and the age and health of both parties
3. The present and future earning capacity of both parties
4. The ability of the party seeking maintenance to become self-supporting and, if applicable,
the period of time and training necessary therefor
5. Reduced or lost lifetime earning capacity of the party seeking maintenance as a result of
having foregone or delayed education, training, employment, or career opportunities during the marriage
6. The presence of children of the marriage in the respective homes of the parties
7. The tax consequences to each party
8. Contributions and services of the party seeking maintenance as a spouse, parent, wage
earner, and homemaker, and to the career or career potential of the other party
9. The wasteful dissipation of marital property by either spouse
10. Any transfer or encumbrance made in contemplation of a matrimonial action without fair
consideration
11. Any other factor the court shall expressly find to be just and proper.
NY DRL § 236 (Part B)(6)(a)
Under New York law, permanent maintenance can terminate either by operation of law or
upon application to a court of competent jurisdiction. The most frequent termination of permanent maintenance occurs upon the death of either party or upon the recipient’s valid or invalid marriage, or on a showing of a substantial change in circumstance including extreme
16
financial hardship. NY DRL §§ 236 (Part B) (6)(c) & (9)(b). Permanent maintenance will also terminate if the husband can prove his ex-wife is habitually living with another man and holding
herself out as his wife even though she is not married to the man (presumably this remedy is
also available to the woman if she is the one paying maintenance). NY DRL § 248. Finally, if a
custodial parent is wrongfully interfering with or withholding visitation rights, a court can
suspend or cancel any arrears that may have accrued in maintenance payments during the
time of the obstruction to visitation rights. NY DRL § 241.
New York uses two major enforcement devices to force a defaulting party to make current
maintenance payments and/or payments of maintenance in arrears. The first and perhaps the
most widely used technique is enforcement by execution. NY DRL § 244. Under this provision,
a spouse is entitled to initiate an action against a defaulting party without starting a plenary
action. The DRL § 244 proceeding more closely resembles a motion pursuant to an existing or
ongoing action rather than a completely new action at law. Generally, a hearing is not held unless the defaulting party can show sufficient facts to warrant one. This procedure (which can
also be used to collect back child support) is used to expedite the enforcement of the collection
process. Once an amount has been determined by the court, the spouse can use the collection
process established by the New York Civil Practice Law and Rules (NY CPLR) to acquire an execution on the defaulting party’s income. The second method of maintenance-payment enforcement is a contempt proceeding. NY DRL § 245. This action permits the levying of a fine
and commitment to jail of the wrongdoer for willful disregard of the maintenance or child support payments.
PROPERTY DIVISION: GENERAL PRINCIPLES (Statsky 257 )
What Property Is Divided and Who Gets What? (Statsky 261)
Marital property is defined to be all property acquired by either spouse “during the marriage
and before the execution of a separation agreement regardless of the form in which title is
held.” NY DRL § 236 (Part B) (1)(c). However, marital property is not to include “separate
property.” NY DRL § 236 (Part B) (1)(c). Separate property includes the following:
1.
2.
3.
4.
5.
Property acquired before the marriage
Property acquired by bequest, devise, or decent
Property acquired as a gift from someone other than a spouse
Compensation for personal injuries
Property acquired in exchange for or the increase in value of separate property, except to
the extent that such appreciation is due in part to the contributions or efforts of either
spouse
6. Property described as separate property by a written agreement of the parties
Marital property is subject to equitable (which does not necessarily mean equal) distribution.
NY DRL § 236 (Part B) (5)(c). In reaching an equitable result in the distribution of marital property, a court will consider 13 factors, some of which are quite similar to the considerations for
spousal maintenance.
1. The income and property of the respective parties at the time of the marriage and at the
time of the commencement of the matrimonial action
2. The duration of the marriage and the age and health of both parties
17
3. The need of the custodial parent to occupy or own the marital residence and to use or own
its household effects
4. The loss of inheritance and pension rights upon the dissolution of the marriage as of the
date of dissolution
5. Any award of maintenance
6. Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner, and homemaker and to the career or career potential of the other party
7. The liquid or nonliquid character of all marital property
8. The probable future financial circumstances of either party
9. The impossibility or difficulty of evaluating any component asset or interest in a business,
corporation, or profession, and the economic desirability of retaining such asset or interest
intact and free from any claim or interference by the other party
10. The tax consequences to each party
11. The wasteful dissipation of marital property by either spouse
12. Any transfer or encumbrance made in contemplation of a matrimonial action without fair
consideration
13. Any other factor the court shall expressly find to be just and proper
NY DRL § 236 (Part B) (5)(d).
Separate property remains separate at the time of the dissolution of a marriage. NY DRL
§ 236 (Part B) (5)(b).
Pensions, Degrees, and Goodwill (Statsky 266)
Pensions
The rule for division of pensions was enunciated in Majauskas v. Majauskas, 61 N.Y. 2d 481;
463 N.E. 2d 15; 474 N.Y.S. 2d 699 (1984). Under Majauskas, the basic rule is that the spouse holding the pension pays the nonpensioned spouse one half of the pension earned (less taxes) during the time the parties were married and before the commencement of the divorce.
Degrees
New York law recognizes that a professional license acquired during a marriage is marital
property and is subject to equitable distribution. O’Brien v. O’Brien, 66 N.Y. 2d 576, 489 N.E. 2d
712, 498 N.Y.S. 2d 743 (1985). It has been further held that college degrees leading to a professional license are marital property. McGowan v. McGowan, 142 A.D. 2d 355, 535 N.Y.S. 2d 990
(1988); Anderson v. Anderson, 153 A.D. 2d 823, 545 N.Y.S. 2d 335 (1989).
DEBTS (Statsky 277 )
Just as marital property is subject to equitable division, so are the marital debts.
18
9
CHILD CUSTODY
PARENT VS. PARENT (Statsky 309 )
In the state of New York, there is no preference as to the father or mother regarding custody of
the parties’ minor child(ren). The court will make such determination after a review of the facts
and circumstances surrounding the case in light of what is in the best interest of the child(ren).
NY DRL § 70; NY DRL § 240 (1) (a); Friederwitzer v. Friederwitzer, 55 N.Y. 2d 89, 432 N.E. 2d 765,
447 N.Y.S. 2d 893 (1982); Eschbach v. Eschbach, 56 N.Y. 2d 167, 436 N.E. 2d 1260, 451 N.Y.S. 2d
658 (1982).
It is important to note that New York requires the court to take into consideration the presence of domestic violence in the household in determining the best interest of the child(ren).
NY DRL § 240.
COURT DECISION ON VISITATION (Statsky 320 )
In the state of New York, stepparents have no statutory right to visitation. The NY DRL does,
however, provide for visitation with grandparents and siblings as long as it is in the best interest of the minor child in question. NY DRL §§ 71, 72, and 240.
BIOLOGICAL PARENT VS. PSYCHOLOGICAL PARENT (Statsky 330)
In New York, the presumption is that it is in the best interest of a child to be reared by his or
her biological parent. However, this presumption can be overruled, as stated in Bennett v. Jeffreys, 40 N.Y. 2d 543, 356 N.E. 2d 277, 387 N.Y.S. 2d 821 (1976):
The parent has a ‘right’ to rear its child, and the child has a ‘right’ to be reared by its
parent. However, there are exceptions created by extraordinary circumstances, illustratively, surrender, abandonment, persisting neglect, unfitness, and unfortunate or
involuntary disruption of custody over an extended period of time.
MODIFICATION OF THE CUSTODY ORDER BY THE STATE THAT
ISSUED THE ORDER (Statsky 332 )
Child custody orders are very difficult to change and will only be changed if it is determined
to be in the best interest of the child(ren).
19
EXHIBIT 9–1
Petition for Custody/Visitation
20
EXHIBIT 9–1
Continued
21
EXHIBIT 9–1
Continued
22
10
CHILD SUPPORT
WHO PAYS AND HOW MUCH (Statsky 355 )
In 1988, the federal government enacted legislation that required each State to set forth
statewide guidelines concerning child support. Adhering to the federal mandate, the New
York Legislature passed the Child Support Standards Act (CSSA).
In applying the CSSA, the court first determines the combined parental income, then multiplies this amount by a child-support percentage. The child-support percentage is defined as
follows:
1.
2.
3.
4.
5.
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
no less than 35% of the combined parental income for five or more children.
NY DRL § 240 1-b (b)(3); NY FCA(1)(b)(3)
The child support percentage is applied to the first $80,000 of combined parental income
to determine the amount of child support. After that amount has been determined, each parent is responsible for his or her pro-rata share in the same proportion as his or her respective
income in light of the combined parental income. If the combined parental income exceeds
$80,000, the court has 10 discretionary factors to use in allocating the excess child support:
1. The financial resources of the custodial and noncustodial parents and those of the child
2. The physical and emotional health of the child and his/her special needs and aptitudes
3. The standard of living the child would have enjoyed had the marriage or the household
not been dissolved
4. The tax consequences to the parties
5. The nonmonetary contributions that the parents will make toward the care and well-being
of the child
6. The educational needs of either parent
7. A determination that the gross income of one parent is substantially less than that of the
other parent
8. The needs of the children of the noncustodial parent for whom the noncustodial parent is
providing support that are not subject to the instant action
9. Provided that the child is not on public assistance: i. extraordinary expenses incurred by
the noncustodial parent in exercising visitation, or ii. the expenses incurred by the noncustodial parent in extended visitation provided that the custodial parent’s expenses are
substantially reduced as a result thereof
10. Any other factors the court determines are relevant in each case
23
NY DRL § 240 (1-b)(f); NY FCA § (1)(f)
Example:
Jim and Carol have three minor children. Jim earns $40,000 per year and Carol earns
$60,000 per year.
The first step in determining child support is to figure out the combined parental income
and the pro-rata responsibility each parent carries regarding the same. The combined parental
income is $100,000. Jim brings home 40% of the combined parental income and Carol brings
home 60% of the combined parental income.
$40,000 / $100,000 40%
$60,000 / $100,000 60%
Thus, Jim is responsible for 40% of the child support for the parties’ minor children and Carol
is responsible for 60% of the child support for the parties’ minor children.
The next step in calculating child support is to determine how much of the $80,000 parental
income must be allocated to the parties’ children. Because the parties have three children, the
statute requires that the parties are responsible for 29% of the $80,000 combined parental income or $23,200 per year.
Because the parties’ combined parental income exceeds the $80,000 limit as defined by
statute, the parties will only apply their respective percentages to $80,000 and leave the additional $20,000 ($100,000 – $80,000) for court determination.
The final step in calculating child support is to apply each party’s pro-rata percentage to the
parties’ total responsibility of child support. Thus $23,200 is multiplied by Jim’s 40% and
Carol’s 60%.
Jim $23,200 * 40% $9,280 per year
Carol $23,200 * 60% $13,920 per year
Thus, Jim is responsible, under the CSSA, to pay $9,280 per year in child support, and Carol is
responsible for $13,920 per year in child support.
The court will look at the final $20,000 (the amount that exceeded the $80,000 limit) and determine how, if at all, that additional amount will be factored into the child support obligation
of the parties.
24
11
TAX CONSEQUENCES OF
SEPARATION AND DIVORCE
The information contained in the main text is applicable to the state of New York.
25
12
THE LEGAL RIGHTS
OF WOMEN
OWNING AND DISPOSING OF PROPERTY (Statsky 398 )
New York General Obligations Law (NY GOL) § 3-301 grants a married woman the right to own,
use, and dispose of property, both real and personal, without the involvement of her husband.
NY GOL § 3-301 states that all sums of money received by a married woman as a result of
a personal injury action shall be hers alone and not that of her husband.
Finally, NY GOL § 3-315 states that a married woman has the right to earn and keep her
own wages.
CONTRACTS AND CONVEYANCES (Statsky 398 )
NY GOL § 3-301 grants a married woman the right to enter into a contract on her own without
the necessity of including her husband. NY GOL § 3-305 further states that a married woman’s
contract does not bind her husband or his property.
DEATH OF THE HUSBAND (Statsky 399 )
In the state of New York, a surviving spouse (whether a man or a woman) is given the right of
election between what was left for him or her in the will of the deceased spouse and his or her
statutory share. The statutory share allows the spouse to take one third of the net estate or
$50,000, whichever is greater. NY Estates Powers and Trusts Law § 5-1.1-A.
MARITAL RAPE (Statsky 414 )
New York State Penal Law § 130 defines “sexual contact” as “any touching of the sexual or
other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party” [emphasis added]. Penal Law § 130 further states that “female” means any
person not married to the defendant. Finally, Penal Law § 130 defines “not married” as follows:
a. the lack of an existing relationship of husband and wife between the female and the actor
which is recognized by law, or
b. the existence of the relationship of husband and wife between the actor and the female
which is recognized by law at the time the actor commits an offense proscribed by this article by means of forcible compulsion against the female, and the female and actor are living apart at such time pursuant to a valid and effective:
26
i. order issued by a court of competent jurisdiction which by its terms or in its effect requires such living apart, or
ii. decree or judgment of separation, or
iii. written agreement of separation subscribed by them and acknowledged in the form required to entitle a deed to be recorded which contains provisions specifically indicating
that the actor may be guilty of the commission of a crime for engaging in conduct which
constitutes an offense proscribed by this article against and without the consent of the
female.
In New York State, rape in the second and third degrees provides a marital exemption to rape.
NY Penal Law §§ 130.25 & 130.30. However, the New York State Court of Appeals has found
the marital exemption from rape in the first degree to be unconstitutional; therefore, any person who engages in sexual intercourse or deviate sexual intercourse through force will be
guilty of rape. People v. Liberta, 64 N.Y. 2d 154, 474 N.E. 2d 576, 485 N.Y.S. 2d 204 (1984); NY Penal Law § 130.35.
27
13
ILLEGITIMACY AND
PATERNITY PROCEEDINGS
ILLEGITIMACY
Inheritance (Statsky 422)
The New York Estates, Powers, and Trusts Law (NY EPTL) allows illegitimate children to inherit from their mother and her lineage and, under certain conditions, from their father. NY
EPTL § 4-1.2(a)(1).
Artificial Insemination (Statsky 423)
New York State provides that “[a]ny child born to a married woman by means of artificial insemination performed by persons duly authorized to practice medicine and with the consent
in writing of the woman and her husband, shall be deemed the legitimate, natural child of the
husband and his wife for all purposes.” NY DRL § 73.
LEGITIMIZATION AND PATERNITY (Statsky 424)
Paternity (Statsky 425)
Article 5 of the Family Court Act (NY FCA) governs paternity proceedings in the state of New
York.
Paternity is established in a variety of ways:
1. Registration with the Putative Father Registry under New York Social Services Law § 372-c
2. A court of competent jurisdiction declares paternity during the father’s lifetime
3. (For purposes of inheritance after the father’s death) the father of the child has openly and
notoriously acknowledged the child as his own as provided in NY EPTL § 4-1.2(a).
28
EXHIBIT 13–1
Paternity Petition
29
EXHIBIT 13–1
Continued
30
14
THE LEGAL STATUS
OF CHILDREN
AGE OF MAJORITY AND EMANCIPATION (Statsky 439 )
An individual under the age of 18 is considered to be a minor in the state of New York. NY
DRL § 2.
CONTRACTS (Statsky 440 )
Contracts entered into by minors are voidable in New York. NY General Obligations Law (NY
GOL) § 3-101.
EDUCATION (Statsky 443 )
Under certain circumstances, New York Penal Law permits the use of corporal punishment by
teachers of children entrusted to them. The statute provides that the child must be under the
age of 21; that the force used is not deadly force; and that the teacher reasonably believes that
such force is necessary to maintain the discipline or promote the welfare of the student. NY Penal Law § 35.10(1).
The Commissioner of Education has established regulations that restrict when a teacher
may use physical force as follows:
a.
b.
c.
d.
To protect oneself from physical injury
To protect another pupil or teacher or any other person from physical injury
To protect the property of the school or of others
To restrain or remove a pupil whose behavior is interfering with the orderly exercise and
performance of school district functions, powers, or duties, if that pupil has refused to comply with a request to refrain from further disruptive acts, provided that alternative procedures and methods not involving the use of physical force cannot reasonably be employed
to achieve the purposes set forth in clauses (a) through (d) of this subparagraph.
8 New York Code, Rules and Regulations (NYCRR) § 100.2 (L)(3)(i).
NEGLECT AND ABUSE (Statsky 443 )
The phone number for the New York State Abuse and Maltreatment Registrar is (800)342-3720.
31
15
ADOPTION
KINDS OF ADOPTION (Statsky 451)
New York law provides for two types of adoption. The first kind is performed under the auspices of an authorized agency. NY DRL § 109(4). The second is a private placement adoption.
A private placement adoption is “any adoption other than that of a minor who has been placed
for adoption by an authorized agency.” DRL § 109(5).
WHO MAY ADOPT? (Statsky 454 )
New York has several categories of persons who may adopt:
1. An adult unmarried person
2. An adult husband and an adult wife, together
3. An adult married person who is living separate and apart from his/her spouse pursuant
to a separation agreement or pursuant to a decree or judgment of separation
4. An adult or minor husband and his adult or minor wife together adopting a child born to
either of them in or out of wedlock
5. An adult married person who has been living separate and apart from his or her spouse
for at least three years prior to commencing an adoption proceeding, provided that the
adopted person shall not be deemed to be the child or step-child of the nonadopting
spouse
6. Any adult husband and wife or adult unmarried person, who have cared for a child as foster parent(s) for a continuous period of 12 months or more.
NY DRL § 110 & NY SSL § 383(3).
ADOPTION PROCEDURE (Statsky 458)
Jurisdiction and Venue (Statsky 458)
In New York State, Family Court and Surrogate’s Court have concurrent, original jurisdiction
over adoptions. NY FCA § 641.
Petition (Statsky 458)
Whether the adoption is an agency adoption or a private placement adoption, NY DRL § 112
sets forth the requirements for the petition for adoption. NY DRL §§ 112 & 115 (1)(a).
32
EXHIBIT 15–1
Agency Adoption Petition
33
EXHIBIT 15–1
Continued
34
EXHIBIT 15–1
Continued
35
EXHIBIT 15–1
Continued
36
EXHIBIT 15–1
Continued
37
Notice (Statsky 460)
In New York, notice of adoption is given in certain situations to fathers of children born outof-wedlock. The following persons are included:
1. Any person adjudicated by a court of competent jurisdiction, within the state of New York,
to be the child’s father
2. Any person adjudicated by a court of competent jurisdiction in another state to be the father of the child provided that a certified copy of the order has been filed with the putative
child registry
3. Any person who has timely filed an unrevoked notice of intent to claim the child as his own
4. Any person named on the birth certificate as the child’s father
5. Any person who is openly living with the child’s mother and holding himself out to be the
child’s father
6. Any person who has been identified as the child’s father in a written sworn statement by
the child’s mother
7. Any person who married the child’s mother within six months subsequent to the birth of
the child and prior to the execution of the surrender instrument by the mother
8. Any person who has filed with the putative child registry acknowledging paternity of the
child, pursuant to § 4-1.2 of the EPTL
NY DRL § 111-a (2)(a-h).
Consent (Statsky 461)
Unless dispensed with, the following individuals’ consent is required for the adoption of the
child:
1. The adoptive child, if the child is over the age of 14, unless the judge or surrogate dispenses
with the need for such consent
2. The parents or surviving parent of the child born or conceived in wedlock
3. The mother of the child born out of wedlock
4. The father of the child born out of wedlock and placed with the adoptive parents more than
six months after the birth of said child, but only if the father has maintained substantial
and continuous contact with said child as demonstrated by
a. The payment by the father toward the support of the child a fair and reasonable sum according to the father’s means; and either
i. the father visiting the child at least monthly when physically and financially able to do
so and not prevented by the person or agency having lawful custody of the child; or
ii. the father’s regular communication with the child or the person or agency having
custody of said child
5. The father of a child born out of wedlock who is under the age of six months if the father
has
a. Openly lived with the child’s mother for a continuous period of six months immediately
preceding the placement of the child for adoption; and
38
b. Such father openly held himself out to be the father of such child during the period; and
c. Such father paid a fair and reasonable sum, in accordance with his means, for the expenses incurred with the pregnancy and birth of the child
6. Any person or authorized agency having lawful custody of the adoptive child.
NY DRL § 11(1).
EQUITABLE ADOPTION (Statsky 479 )
In the state of New York, the Doctrine of Equitable Adoption does not create a parent-child relationship. Rather the doctrine refers to a contract for the making of a will for inheritance purposes. For the doctrine to apply, the contract must be definite and certain; be free from fraud,
duress, and misrepresentation; be equitable; have valid consideration; and be capable of being
proved by clear and convincing evidence. In Re Estate of Mazzeo, 95 A.D. 2d 91, 466 N.Y.S. 2d
759 (Third Dept., 1983).
39
16
THE NEW SCIENCE
OF MOTHERHOOD
SURROGACY CONTRACTS (Statsky 488 )
New York State has declared surrogate parenting contracts to be contrary to the public policy
and therefore void. NY DRL § 122.
40
17
TORTS AND FAMILY LAW
INTRAFAMILY TORTS (Statsky 505 )
A husband or wife can sue the other for injury to his or her person or property based on the
action of the other. NY General Obligations Law § 3-313.
VICARIOUS LIABILITY OF FAMILY MEMBERS (Statsky 516 )
In the state of New York, a parent is liable for the tortious actions of his or her child up to $5,000.
NY General Obligations Law § 3-112.
41
APPENDIX A
Statement of Net Worth
42
EXHIBIT A–1
43
EXHIBIT A–1
Continued
44
EXHIBIT A–1
Continued
45
EXHIBIT A–1
Continued
46
EXHIBIT A–1
Continued
47
EXHIBIT A–1
Continued
48
EXHIBIT A–1
Continued
49
EXHIBIT A–1
Continued
50
EXHIBIT A–1
Continued
51
EXHIBIT A–1
Continued
52
EXHIBIT A–1
Continued
53
EXHIBIT A–1
Continued
54
EXHIBIT A–1
Continued
55
EXHIBIT A–1
Continued
56