New York Divorce and Family Law, the definitive site about divorce, child support and custody.
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Welcome to New York Divorce and Family Law ™
Domestic litigation is a part of American life. Almost everyone has been directly or indirectly involved in divorce, custody, or domestic violence proceedings. This site has been designed to make the lawyer and the non-lawyer more knowledgeable about New York Divorce and Family law, and less vulnerable to misinformation.
Joel R. Brandes
New York Divorce and Family Law™is owned and published by Joel R. Brandes Consulting Services, Inc. the ultimate source for litigation support and paralegal services for matrimonial and family law attorneys throughout the World.
Joel R. Brandes Consulting Services, Inc. is a Florida Corporation. We are located at 2881 NE 33rd Court, Fort Lauderdale, Florida 33306 and at 155 Washington Street, Jersey City, New Jersey 07302.
Joel R. Brandes Consulting Services, Inc. is not a law firm and does not give legal advice. We only work for attorneys. Attorneys can contact us by email for a Free Consultation or by telephone 201-434-6614 or 954-564-9883. More about our services.
Attorneys and Judges may Subscribe to Bits and Bytes™ , our free electronic newsletter published for attorneys and judges, as a public service, which reports on important new decisions and laws before they appear on our website. Our electronic newsletter will be sent to you by email twice a month, to keep you up to date on important developments in New York Divorce and Family Law. To subscribe click on this link to fill out a subscription form or send an email containing your name, office address, telephone number and email address to subscribe@nysdivorce.com. Your information will be kept confidential in accordance with our privacy policy.
Joel R. Brandes, the President of Joel R. Brandes Consulting Services, Inc. is the author of "Law and the Family New York 2d" (9 volumes) (West), and "Law and the Family New York Forms"(4 volumes) (West). These sets can be purchased directly from Thomson-West at 1-800-544-3008. For more information, click on the links below the volumes pictured below to go to West.
Description: This set is both a treatise and a procedural guide. The usual family law issues are covered such as Formation of the Family Unit, Divorce, Judicial Separation, and Annulments. It presents such vital practical considerations as counsel fees to prosecute or defend an appeal. The text analyzes statutes, discusses cases, and includes authors' notes which present hints, practice pointers, and pitfalls to avoid. It also features a complete discussion of appellate practice and offers step-by-step guidance on how to handle an appeal in each of the state's judicial departments. Research aids annotate the text.
Description. This set provides you with practitioner-tested forms for a wide variety of family law matters. It includes forms relating to the creation of the marriage relationship, the attorney-client relationship, matrimonial agreements, and matrimonial litigation. Specific topics covered include antenuptial agreements, separation agreements, modification agreements, and matters relating to infants and incompetents, and service of process.
Notice: The information on this site pertains to New York law and is offered as a public service. It is not intended to give legal advice about a specific legal problem. Due to the importance of the individual facts of every case, the information on this site may not necessarily be applicable to any particular case. Changes in the law could at any time make parts of this web site obsolete. The information on this web site was not necessarily written by persons licensed to practice law in a particular jurisdiction. The publisher is not engaged in rendering legal advice and this publication is not intended to give legal advice about a specific legal problem, nor is it a substitute for the advice of an attorney. This information is provided with the understanding that if legal advice is required the services of a competent attorney should be sought.
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Cases of The Week and News (Updated May 4, 2012).
First Department Holds Although Husband Retained All the Property, Court Will Not Set Aside Agreement on Ground of Unconscionability Where Inequitable Conduct Lacking
In
Barocas v Barocas, --- N.Y.S.2d ----, 2012 WL 1293783 (N.Y.A.D. 1 Dept.) the Appellate Division rejected defendant's contention that the property division provisions of the parties prenuptial agreement were unconscionable. Defendant failed to establish that her execution of the agreement was the result of inequitable conduct on plaintiff's part. Rather, the parties fully disclosed their respective assets and net worth, and the agreement was reviewed by independent counsel, who defendant admitted had told her that the agreement was "completely unfair" and advised against signing it. The fact that plaintiff's attorney recommended defendant's counsel, and that plaintiff paid her counsel's fees, was insufficient to demonstrate duress or overreaching. Defendant's claim that she believed that there would be no wedding if she did not sign the agreement, that the wedding was only two weeks away and that wedding plans had been made, was insufficient to demonstrate duress. Although application of the provisions would result in plaintiff retaining essentially all the property, courts will not set aside an agreement on the ground of unconscionability where inequitable conduct was lacking and simply because, in retrospect, the agreement proves to be improvident or one-sided. The circumstances surrounding the execution of the agreement disclosed no issue of fact as to whether there was overreaching. It therefore adhered to the general rule that " '[i]f the execution of the agreement ... be fair, no further inquiry will be made' " (Levine v. Levine, 56 N.Y.2d 42, 47 [1982], citing Christian, 42 N.Y.2d at 73). Moreover, duly executed prenuptial agreements are accorded the same presumption of legality as any other contract" ( Bloomfield v. Bloomfield, 97 N.Y.2d 188, 193 [2001] ). The majority disagreed with the dissent's conclusion that there was an issue of fact as to whether the property division provisions of the instant agreement are unconscionable. They observed that an unconscionable contract is one "which is so grossly unreasonable as to be unenforcible because of an absence of meaningful choice on part of one of the parties together with contract terms which are unreasonably favorable to the other party" ( King v. Fox, 7 NY3d 181, 191 [2006] ). Here, meaningful choice was not an issue inasmuch as defendant knowingly entered into the agreement against the advice of her counsel. The majority also held that although defendant's waiver of spousal support was not unfair or unreasonable at the time she signed the agreement, given her knowing and voluntary execution thereof with benefit of counsel, factual issues existed as to whether the waiver would be unconscionable as applied to the present circumstances (Domestic Relations Law 236[B][3][3] ). A Child support award for the parties' two children had not been established, and it was unclear whether defendant would become a public charge without spousal support. It was also unclear whether waiver of all spousal support would result in inequality "so strong and manifest as to shock the conscience and confound the judgment of any [person] of common sense" ( Christian, 42 N.Y.2d at 71). The evidence showed that, despite the 15-year marriage, under the agreement, plaintiff would be entitled to retain property valued at about $4,600,000, while defendant would be entitled to only an IRA account valued at approximately $30,550. She claimed that she had no other assets or sources of income, and could no longer work, given that she was now 50 years old and that plaintiff had thwarted her efforts to get a college education and pursue a career during the marriage. Plaintiff, contends that defendant chose not to get a college degree or pursue a career, and that, while he supported her various business projects, the projects failed or she would quit after losing interest. The majority found that issues of fact existed as to whether the maintenance waiver would be unconscionable as applied to the current circumstances. Justices Freedman and Manzanet-Daniels dissented in part in separate memoranda.
Court of Appeals Rejects Husbands Argument That Intention to Equally Divide Marital Estate Was Frustrated Because Both Parties Operated under "Mistake" or Misconception as to Existence of a Legitimate Madoff Investment Account
In Simkin v Blank, --- N.E.2d ----, 2012 WL 1080295 (N.Y.) the Court of Appeals held that the post-agreement revelation that the Madoff Investment Account was a Ponzi Scheme, however sympathetic, was not a mutual mistake. It was more akin to a marital asset that unexpectedly loses value after dissolution of a marriage; the asset had value at the time of the settlement but the purported value did not remain cery of theonsistent. The Court found this case analogous to the Appellate Division precedents denying a spouse's attempt to reopen a settlement agreement based on post-divorce changes in asset valuation. The Court also held that the husband's unjust enrichment claim likewise failed to state a cause of action. It is well settled that, where the parties executed a valid and enforceable written contract governing a particular subject matter, recovery on a theory of unjust enrichment for events arising out of that subject matter is ordinarily precluded. ( For a more detailed discussion click here)
Temporary Maintenance Guidelines Income Cap Raised from $500,000 to $524,000.
The "cap" on each spouses annual income, to be utilized in calculating temporary maintenance orders, has increased from $500,000 to $524,000 effective January 31, 2012 in accordance with Domestic Relations Law § 236 [B][5-a][b][5] . (See Temporary Maintenance Guidelines Worksheet, revised January 31, 2012 at www.nycourts.gov/divorce/TMG-worksheet.pdfor Temporary Spousal Maintenance Guidelines Calculator, revised January 31, 2012 at www.nycourts.gov/divorce/calculator.pdf) Beginning January 31, 2010 and every two years thereafter, the income cap increases by the product 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 two year period rounded to the nearest one thousand dollars. The office of court administration is required to determine and publish the income cap. See Domestic Relations Law § 236[B], [5-a][b][5].
"Combined Parental Income Amount" Increased to $136,000
The "combined parental income amount" to be utilized in calculating child support orders has increased from $130,000 to $136,000 effective January 31, 2012. (See Child Support Worksheet (Form UD-8) revised January 2012). The amount of the "combined parental income" is established by Domestic Relations Law § 240 (1-b) (2) as the amount set forth in Social Services Law § 111-I (2) (b). Domestic Relations Law § 240 (1-b) (2) provides that the amount established shall be multiplied by the appropriate child support percentage and such amount shall be prorated in the same proportion as each parent's income is to the combined parental income. Social Services Law § 111-I (2)(b) provides that the $130,000 cap is increased automatically on January 31, 2012 and on January 31 every two years thereafter by the product 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 two year period rounded to the nearest one thousand dollars. (Bureau of Labor Statistics publications are at http://www.bls.gov)
First Department Holds No Double Dipping Allowed Under Temporary Maintenance Guidelines
In Khaira v Khaira, --- N.Y.S.2d ----, 2012 WL 371997 (N.Y.A.D. 1 Dept.) the Appellate Division, in an opinion by Justice Saxe, considered the temporary guidelines for awards of temporary spousal maintenance under Domestic Relations Law § 236 (B)(5-a), particularly with regard to the circumstances in which the court may deviate from the guideline amount derived by formula (the presumptive award), and the procedures that must be undertaken to do so. In considering the husband's challenge to the award, the Court rejected his suggestion that his support obligation should have been calculated based solely on his base pay, without reference to his bonus, or that the court should have taken into consideration his net pay. The statute instructs the court to base the calculations on the payor's gross income as reported in his federal income tax return, and the motion court properly did exactly that, correctly treating the husband's bonuses as income and ignoring his reliance on his net income (which can be manipulated with deductions and deferred compensation). He found that the motion court did not strictly comply with the requisites of Domestic Relations Law §236 (B)(5-a). Justice Saxe observed that no language in either the new temporary maintenance provision or the CSSA specifically addresses whether the statutory formulas are intended to include the portion of the carrying costs of their residence attributable to the non-monied spouse and the children. The new law "does not factor in child support issues or payment of household expenses. In the absence of a specific reference to the carrying charges for the marital residence, the Court considered it reasonable and logical to view the formula adopted by the new maintenance provision as covering all the spouse's basic living expenses, including housing costs as well as the costs of food and clothing and other usual expenses. The Court believed that the new approach of calculating spousal support payments to the non-monied spouse by means of a formula is intended to arrive at the amount that will cover all the payee's presumptive reasonable expenses. By calculating the guideline amount and then simply adding the direct mortgage payment on top of that, the motion court awarded more than the amount reached by the formula, without providing the required explanation. Justice Saxe indicated that it is possible that directing payment above and beyond the guideline amount may be appropriate in certain situations. For instance, the direct mortgage payment might be justifiable as additional support when the payor's income exceeds $500,000 and the applicable factors listed in Domestic Relations Law 236 (B)(5-a)(c)(2)(a) are taken into account; or, depending on the size of the mortgage payment, perhaps only part of it should be treated as the payee's housing costs, and the remainder should be treated as the upkeep of a marital investment. He suggested that perhaps there are other reasons why the guideline amount is unjust or inappropriate. "It may well be that in this case, consideration of the enumerated factors, such as the stark difference in the parties' current earning capacities, their standard of living during the marriage, and the need to pay for day care, would justify the motion court's direction that the husband pay as additional maintenance a specified portion of his income beyond the $500,000 cap."
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Click to Visit New York Divorce and Family Law Blog - Our blog supplements the "Cases of the Week and News Page". We report all of the decisions which appear in Bits and Bytes™ , our free electronic newsletter.
The New York Divorce and Family Law ™ Agreement Creator, quickly drafts a professional agreement for you in no time. It contains an on-screen manual, written by Joel R. Brandes, entitled "Drafting Agreements for the New York Divorce and Family Law Attorney". The manual describes in detail each provision of the separation agreement, stipulation of settlement, "opting-out" agreement or post-nuptial agreement you are composing. The manual offers you practical advice for drafting your agreement, with "Settlement Considerations", "Drafters Notes" and "Law You Should Know". The Agreement Creator creates professional, high quality agreements ready for filing, and is updated annually so that you will always be up to date on New York law of Agreements. It is easy to use and is designed with a pictorial guide. The opening page contains all the instructions you need to run the program. The pages that follow give you simple, easy to understand choices to make, based upon the provisions of the New York Equitable Distribution Law, Domestic Relations Law § 236 [B] [4]), so there is nothing to learn.
System Requirements: The New York Divorce and Family Law™ Agreement Creator requires a computer with at least 1 gigabyte of memory, with the Microsoft Windows Operating System, running the Microsoft® Word Program (MS Word).
The New York Divorce and Family Law ™ Agreement Creator costs $549.00.
Each additional license costs $ 199.00.
The New York Divorce and Family Law™ Child Support Calculator, which contains an on-screen Guide to the Child Support Standards Act, written by Joel R. Brandes, automatically generates a helpful summary report, calculates the child support amount on combined parental income, over $136,000, and drafts for you the language required to be included in agreements, stipulations, and findings of fact. Another feature, useful for purposes of negotiating a settlement, is the ability to do "what if" calculations using a different "combined parental income".
System Requirements: New York Divorce and Family Law™ Child Support Calculator requires a computer with at least 1 gigabyte of memory, with the Microsoft Windows Operating System, running the Microsoft® Word Program (MS Word).
The New York Divorce and Family Law™Child Support Calculator costs $199.00.
Each additonal license beyond three licenses costs $99.00.
The New York and Family Law™ Marital Property Distributor, which contains an on-screen Guide to the Equitable Distribution Law, written by Joel R. Brandes, calculates, on a "what if" basis, the total value of each spouses' share of the marital assets. This program allows the user to re-distribute marital property to any percentage, and has the unique "auto-balancer" function which automatically distributes a selected asset between the parties to create a total 50-50 asset balance. There is no need for a calculator when you use this program.
System Requirements: The New York Divorce and Family Law™ Marital Property Distributor requires a computer with at least 1 gigabyte of memory, with the Microsoft Windows Operating System, running the Microsoft® Word Program (MS Word).
The New York and Family Law™ Marital Property Distributor costs $99.00.
The programs are easy to run and come with pictorial guides, rather than confusing instructions. The contents of all of the programs have been designed by us to meet the demanding needs of the busy practitioner, based upon years of experience in New York divorce and family law practice.
The New York Divorce and Family Law™ Temporary Maintenance Calculator, contains an on-screen "Guide to the Temporary Maintenance Guidelines" written by Joel R. Brandes. It automatically generates a detailed report showing each step of the temporary maintenance calculation required by the new law. As you enter the parties incomes into the program, the " income entry" screen calculates the "presumptive amount" of temporary maintenance, so that you can try a range of scenarios and immediately see the outcome.
System Requirements: New York Divorce and Family Law™ Child Support Calculator requires a computer with at least 1 gigabyte of memory, with the Microsoft Windows Operating System, running the Microsoft® Word Program (MS Word).
The New York Divorce and Family Law™ Temporary Maintenance Calculator costs $199.00. Each additional license after three licenses costs $99.00.
A "Protocol for Emergency Applications", designed to facilitate applications for Emergency Applications outside of regular court hours in the evening and on weekends and holidays when the courthouse is closed, was issued by the Chief Administrative judge. It establishes the central phone number and e-mail address listed above for attorneys to use in the event of an emergency. According to the protocol, staff members from the Division of Technology will pass on the requests to the administrative judge or a designated back-up, who will arrange to have a judge hear the application.
New York Lawyers "Rules of Professional Conduct for Family Law Attorneys," written by Joel R. Brandes, discusses the rules that particularly effect New York Matrimonial and Family law attorneys. (Click here to download the Article )
New York Divorce County Specific Divorce Information from courts that provide county-specific online divorce information:
New York City:
Bronx County: Information on contested and uncontested matrimonial (divorce) actions in Bronx County. Links available to FAQs, forms, flowcharts, checklists, and procedures.
Kings County (Brooklyn): Information on contested and uncontested matrimonial (divorce) actions in Kings County (Brooklyn). Provides links to FAQs, local and statewide forms, and rules.
New York County (Manhattan): Information on contested and uncontested matrimonial (divorce) actions. Information also available on local, reduced-fee mediation program for cases already in court.
Queens County: Information on contested and uncontested matrimonial actions (divorce) in Queens County. Link also available to local, reduced-fee mediation program for cases already in court.
Nassau County—Information on contested and uncontested divorce in Nassau County. Links to checklists, including one for common filing mistakes in uncontested cases, a time-line for contested divorce cases, information on alternate service (when you cannot locate your spouse), and more. Nassau is also home to an innovative Children Come First Program, where trained professionals help people to resolve parenting disputes early on in the divorce process.
Onondaga County — includes: Syracuse Provides contact information for clerk’s office, and for the Dedicated Matrimonial Part in Syracuse. The 5th Judicial District also provides a list of neutral evaluators and mediators for people with cases in court.
Experts are people who know a great deal about very little and who go along learning more and more abut less and less until they know practically everything about nothing. Lawyers, on the other hand are people who know very little about many things and keep learning less and less about more and more until they know practically nothing about everything.
Judges are people who start out knowing everything about everything but end up knowing nothing about everything because of their constant association with experts and lawyers.
Notice: The information on this site pertains to New York law and is offered as a public service. It is not intended to give legal advice about a specific legal problem. Due to the importance of the individual facts of every case, the information on this site may not necessarily be applicable to any particular case. Changes in the law could at any time make parts of this web site obsolete. The information on this web site was not necessarily written by persons licensed to practice law in a particular jurisdiction. The publisher is not engaged in rendering legal advice and this publication is not intended to give legal advice about a specific legal problem, nor is it a substitute for the advice of an attorney. This information is provided with the understanding that if legal advice is required the services of a competent attorney should be sought.
Our web site has many links to web sites of other organizations, including, but not limited to court systems, publishers of legal information, agencies, educational institutions, profit making companies and non-profit associations. While we offer these electronic links for your convenience in accessing New York Divorce and Family Law related information, please be aware that when you exit our web site, the privacy policy stated on our web site may not be the same as that on other web sites. In addition, we cannot attest to the accuracy of the information provided by linked sites. Linking to a web site does not constitute an endorsement by us of the information presented on the linked site or the products that may be sold on the linked site.
Potential clients of any law firm listed on this site are advised to read the Statement of Clients Rights and Responsibilities, which New York matrimonial attorneys are required to provide to them at the initial consultation.
(This web site may be considered Attorney Advertising by New York Court rules)
The New York Divorce and Family Law ™ Agreement Creator, quickly drafts a professional agreement for you in no time. It contains an on-screen manual, written by Joel R. Brandes, entitled "Drafting Agreements for the New York Divorce and Family Law Attorney". The manual describes in detail each provision of the separation agreement, stipulation of settlement, "opting-out" agreement or post-nuptial agreement you are composing. The manual offers you practical advice for drafting your agreement, with "Settlement Considerations", "Drafters Notes" and "Law You Should Know". The Agreement Creator creates professional, high quality agreements ready for filing, and is updated annually so that you will always be up to date on New York law of Agreements. It is easy to use and is designed with a pictorial guide. The opening page contains all the instructions you need to run the program. The pages that follow give you simple, easy to understand choices to make, based upon the provisions of the New York Equitable Distribution Law, Domestic Relations Law § 236 [B] [4]), so there is nothing to learn. 
