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 more knowledgeable about New York Divorce and Family law.
Joel R. Brandes, President Joel R. Brandes Consulting Services, Inc.
New York Divorce and Family Law™is owned and published by Joel R. Brandes Consulting Services, Inc., the 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, located at 2881 NE 33rd Court, Fort Lauderdale, Florida 33306. The principals of the Corporation are Joel R. Brandes and Elizabeth Brandes.
Joel R. Brandes Consulting Services, Inc. is not a law firm, and does not give legal advice. We are a litigation support and paralegal service, and only work for attorneys. Joel R. Brandes and Elizabeth Brandes, the owners and operators of Joel R. Brandes Consulting Services, Inc., are not lawyers.
Joel R. Brandes Consulting Services, Inc. is a "virtual" or internet based paralegal service.
We provide paralegal services for matrimonial and family law attorneys.
The services we offer include assisting attorneys with legal research, drafting
agreements, drafting motions and memoranda of law, assisting with discovery
and trial preparation, and drafting briefs for matrimonial and family law
trials and appeals. We do anything a paralegal is permitted to do. "A legal assistant or paralegal is a person qualified by education, training or work experience who is employed or retained by a lawyer, law office, corporation, governmental agency or other entity who performs specifically delegated substantive legal work for which a lawyer is responsible." (American Bar Association, 1997)
Attorneys can contact us by emailor by telephone: 954-564-9883
Court Attorneys and Judges may Subscribe for free to Bits and Bytes™ , our free electronic newsletter published for court attorneys and judges, as a public service, which reports on important new decisions and laws. 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.
Bits and Bytes™ is the affordable alternative. It costs hundreds of dollars less than subscriptions to other similar publications. A yearly subscription for 24 issues costs only $199.00 a year, and includes our monthly compilation of all previous issues, cumulative list of updated citations and cumulative list of topical headnotes. It is the only electronic newsletter for attorneys, covering New York Divorce and Family Law™, that is published twice a month. It contains comprehensive, and accurate summaries of all of the significant decisions reported each week on Westlaw® , written by acknowledged experts in the field.Also included are summaries of important new legislation affecting New York Divorce and Family Law. ™
Bits and Bytes™
is written by Joel R. Brandes, the author of Law and the Family New York, Second Edition Revised, and Law and the Family New York Forms (Thomson-West).
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) (Thomson-West), and "Law and the Family New York Forms"(4 volumes) (Thomson-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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Statement of Clients Rights Rule (22 NYCRR 1210.10)
Amended Effective April 15, 2013
Part 1210.1 of the Official Compilation of Codes
Rules, and Regulations of the State of New York, containing the the
Statement of Clients Rights that must be
posted in every law office, was amended
effective April 15, 2013. Substantial Revisions were made to the Statement.
(Click here to download Revised Statement of Clients
Rights)
Court of Appeals Amends Rules
to Require Digital Copies of Records and Briefs
The Court of Appeals has adopted the Court-Pass system, which provides the public with free access to the Court of Appeals materials for appeals. Parties with appeals, certified questions pursuant to section 500.27 of the Court of Appeals Rules of Practice, or judicial conduct matters before the New York State Court of Appeals must use the Court-PASS Upload Service to submit digital copies of records and briefs as required by the Court's Rules, which were amended effective February 1, 2013. (See 22 NYCRR 500.2). To access the Upload System, New York attorneys must be registered with the New York State Unified Court System's Attorney Online Services. If you do not have an existing Attorney Online Services account, you must first create an account here and then return to this page to login using your Attorney Online Services account credentials. Filers who are not New York attorneys must contact the Clerk's Office to obtain "guest" login credentials.
First Department Holds When Marital Funds Used to Pay off Separate Liabilities or to Increase Value of Separate Property, Court Has Authority to Recoup Such Funds and to Distribute Them When Equity Warrants Recoupment.
In Spathis v Spathis, --- N.Y.S.2d ----, 2013 WL 709570 (N.Y.A.D. 1 Dept.) Supreme Court granted a judgement of divorce and ordered plaintiff to pay pendente lite maintenance arrears, awarded plaintiff $49,087.05 as a distributive award and denied counsel fee awards to both parties. The Appellate Division modified. It held that the court correctly determined that defendant was responsible for a portion of plaintiff's tax liability incurred during the marriage, and also providently exercised its discretion in finding that plaintiff's payments for his mother's care and for the mortgage on his mother's house were not a waste of marital assets. The court correctly found that plaintiff's interest in his business could not be distributed because the court-appointed forensic accountant found that the business had no value.
The court correctly found that defendant could not be awarded a portion of the appreciation in the value of the marital apartment, which was plaintiff's separate property, because defendant failed to demonstrate that the property in question increased in value. Neither party submitted expert appraisals or testimony regarding the apartment (Burgio v. Burgio, 278 A.D.2d 767, 717 N.Y.S.2d 769 [3rd Dept 2000] ). However, defendant should have been awarded half of the mortgage payments made on the apartment with marital funds. When marital funds are used to pay off separate liabilities or to increase the value of separate property, "a court has the authority to effectively recoup [such] marital funds ... and to distribute such funds to the parties in accordance with Domestic Relations Law s 236(B)(5)(c) when equity warrants such recoupment.
Plaintiff also failed to provide the court-appointed forensic expert with sufficient information to value his stock options at the time of the marriage or the present value of the shares he purchased, and thus plaintiff could not be credited in the amount of the value as of the date of the marriage of his right to acquire the shares of stock. Nor could the value of the shares be distributed since the same was unknown. In such circumstances, it is necessary and appropriate to resolve the issue by ordering an in-kind distribution of the shares, and it modified the judgment accordingly.
The Appellate Division held that the trial court providently exercised its discretion in denying maintenance. Defendant was awarded pendente lite maintenance for longer than the length of this short marriage. She was also only 44 years old and was capable of becoming gainfully employed. It also held that the court providently exercised its discretion in denying defendant an award of counsel fees. Both parties had engaged in dilatory tactics and had caused the large expenditure of counsel fees.
First Department Holds Remainder of Agreement That Failed to Comply with Domestic Relations Law § 240[1-b][H] (Cssa)) Could Not Be Salvaged by Deeming it Divisible Where Provisions Pertaining to Child Support Constituted the Main Objective of the Agreement
In David v Cruz, --- N.Y.S.2d ----, 2013 WL 599368 (N.Y.A.D. 1 Dept.) the Appellate Division observed that an agreement purporting to opt out of the basic child support obligations set forth in the Child Support Standards Act (CSSA) must "include a provision stating that the parties have been advised of the provisions of [the CSSA]," must specify the amount that the basic child support obligation would have been, and the reason or reasons for the deviation (Domestic Relations Law § 240[1-b][h]). Here, both the settlement agreement and the subject order effectuating it failed to recite that the parties were aware of the CSSA guidelines, failed to set forth the basic child support obligation, and failed to set forth the reasons for deviating from the guidelines. It held that although the invalidity of a child support provision does not necessarily invalidate the agreement in its entirety the agreement at issue could not be salvaged by deeming it divisible for partial illegality and severing and enforcing the provisions that did not pertain to child support. The provisions pertaining to child support constituted the main objective of the agreement, or the bargained-for consideration inducing defendant to agree to the remainder of the agreement, including the injunctive provisions.
Notwithstanding Waiver of Claim to Final Award Maintenance in Prenuptial Agreement, Court Entitled, in its Discretion, to Award Pendente Lite Relief in Absence of Express Agreement to Exclude.
In Lennox v Weberman,--- N.Y.S.2d ----, 2013 WL 673777 (N.Y.A.D. 1 Dept.) the Appellate Division modified an order which awarded the wife tax-free maintenance pendente lite of $38,000 per month, directed plaintiff to pay, inter alia, defendant's unreimbursed medical expenses up to $2,000 per month, interim counsel fees of $50,000, and expert fees of $35,000. The Appellate Division found that the court properly applied the formula set forth at Domestic Relations Law §236(B)(5-a)(c)(2)(a) in calculating defendant's temporary spousal maintenance award. The court listed all 19 of the enumerated factors, explained how 7 of them supported an upward deviation to $38,000 per month from the $12,500 a month in guideline support, and found that $38,000 per month was not "unjust or inappropriate." It further found that the court properly imputed an annual income to plaintiff of $2.29 million when it computed maintenance, since this was his income on the most recent tax return. A court need not rely upon the party's own account of his or her finances, but may impute income based upon the party's past income or demonstrated earning potential (see Hickland v. Hickland, 39 N.Y.2d 1 [1976]). The court properly took into account plaintiff's income from his investments, voluntarily deferred compensation, and substantial distributions (Domestic Relations Law §§ 236[B)[5-a][b][4]; 240[1-b][b][5][I], [iv] ), which was $50.5 million the previous year. It rejected the plaintiff's argument that defendant waived temporary maintenance in the parties' prenuptial agreement. Notwithstanding that defendant waived any claim to a final award of alimony or maintenance in the prenuptial agreement, the court was entitled, in its discretion, to award pendente lite relief in the absence of an express agreement to exclude an award of temporary maintenance. Under the circumstances of this case, however, it deemed it appropriate to charge the interim awards against the one-half share of the marital property to which defendant is entitled under the prenuptial agreement. In so doing it found it significant that the parties provided in the agreement that each waived any right to the separate property of the other, that living expenses were to be paid out of the marital property, and, that the marital property would be equally divided in the event of divorce. It also found it significant that, here, the equal division of the marital property to which the parties agreed would leave each of them with substantial wealth.
It also held that the court's award of interim counsel fees of $50,000 and expert fees of $35,000 was warranted under the circumstances where the parties' assets, appeared to be anywhere from $77 million to $90 million. While there were some funds in defendant's possession, plaintiff was in a far better financial position than defendant, and defendant should not have to deplete her assets in order to have legal representation comparable to that of plaintiff.
No Credit for Paying Debts Obligated to Pay by Pendente Lite Order and Personal Debts Incurred after the Commencement Date
In Heyman v Heyman, --- N.Y.S.2d ----, 2013 WL 238767 (N.Y.A.D. 2 Dept.) the Appellate Division observed that upon the commencement of this divorce action, the marital partnership ceased for the purposes of equitable distribution of property. Upon the termination of the marital partnership, the plaintiff could use marital property to satisfy joint familial obligations such as educational expenses of the children incurred during the pendency of the action. However, in his trial testimony, the plaintiff admitted that he used the distributions from his deferred compensation account to pay his share of expenses which the parties agreed to split evenly, as well as to pay his obligations pursuant to a pendente lite order which directed him to pay the defendant child support of $3,000 per month, retroactive to December 2009, plus an attorney's fee of $15,000. Since those obligations were the sole obligations of the plaintiff, his use of marital funds to make those payments was improper, and the defendant was entitled to her equitable share of those funds. Accordingly, the defendant was entitled to 50% of all distributions from the deferred compensation account, retroactive to the date of the commencement of this action.
Scroll Down for Court Rules, New York Divorce and Family Laws, Forms, Rules, Court Calendars, Decisions and Information (last updated August 10, 2011), Q & A about New York Marriage, Divorce, Separation and Custody, Library of All Federal and New York Cases decided under the Hague Convention on the Civil Aspects of International Child Abduction, and Articles Published in the New York Family Law Monthly
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.
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.
Federal Criminal Enforcement of Child Support
Obligations, by Hon. George B. Daniels and Joel
R. Brandes, New York Law Journal, December 9, 2011
Enforcement of Unacknowledged Marital Agreements,
by Bari Brandes Corbin and Evan B. Brandes, New York Law Journal, October
15, 2012
Now You Know
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.
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. 
