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Archives for the ‘Pre-Trial Motions’ Category
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Tuesday, May 25th, 2010
In Gaffney-Romanello v. Romanello, a Supreme Court Justice in Suffolk County determined that a husband had retained a new attorney merely to cause the presiding judge to recuse himself from a matrimonial action. Instead of recusing himself, the judge ordered the husband to hire a new attorney.
In Gaffney-Romanello, the wife commenced the divorce action in 2007. Approximately two years later, the parties represented to the Court that they were on the verge of reaching a settlement. However, in April 2009, the husband fired the firm that had been representing himself and retained new counsel, a Mr. H.
The presiding justice for the parties’ divorce action had previously forwarded a disciplinary matter to the grievance committed pertaining to Mr. H. As a result, the judge had recused himself from all cases handled by that attorney.
The prior disciplinary matter had been limited to Mr. H. personally and not his firm. Thus, the judge questioned Mr. H. if he intended to represent the husband in the pending matrimonial action, or if one of his three partners would be handling the matter. Each of those partners was well versed in matrimonial law.
Mr. H. informed the Court that only he would be representing the husband and thereafter sought the judge’s recusal. The judge denied the husband’s request for recusal, given the previous representation to the Court that the parties had settled the matter. The judge also determined that the husband was forum shopping, stating, “The appearance of impermissible and inappropriate Judge shopping is present and the prejudice to the Plaintiff far outweighs Defendant’s right to this specific counsel.” “Clearly the Defendant, who had previous counsel…hired Mr. H. solely to forum shop,”
Posted in Divorce Laws/ Issues, Pre-Trial Motions | Comments Off
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Friday, May 14th, 2010
In Johnson v. Chapin, 12 N.Y.3d 461 (2009), the trial court awarded temporary maintenance to the wife and child support based upon an estimation of the husband’s income. At trial, it was determined that the Husband in fact earned a lower income than estimated. The Husband sought a credit for his the overpayments of temporary spousal maintenance and child support paid to the Wife.
The court provided the husband a credit for the overpayment of spousal maintenance. On Appeal, the Court of Appeals held that this credit was permissible as an acceptable exercise of discretion by the trial court.
However, the husband was not provided with a credit for the overpayment of temporary child support as calculated on his estimated income. The Appellate Division and Court of Appeals denied the Husband’s request, with the Court of Appeals providing that there is “a strong public policy against restitution or recoupment of [child] support overpayments.”
Given this ruling, it is imperative the litigants and their attorneys strive to provide the trial court with complete documentation and accurate income data prior to the award of temporary child support.
Posted in Child Support, Pre-Trial Motions | Comments Off
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Saturday, October 24th, 2009
An “Automatic Orders” bill was signed by Governor Patterson and effective on September 1, 2009 in New York.
The Automatic Orders bill amends the Domestic Relations Law and requires that specific automatic orders be served upon the Defendant along with the Summons. The automatic orders are binding upon the Plaintiff when the action for divorce is commenced, i.e., when the Summons is filed in the County Clerk’s office, and binding upon the Defendant when he is served with the orders. The orders remain in effect during the matrimonial action unless terminated or modified by court order or stipulation of the parties. There are five automatic orders as follows:
1. Neither party can sell, transfer, encumber, conceal, assign, remove or dispose of any property (including real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney’s fees in connection with the matrimonial action.
2. Neither party can transfer, encumber, assign, remove withdraw or in any way dispose of any tax deferred funds, stocks or any other assets held in any individual retirement accounts, 401(k) accounts, profit sharing plans, Keogh accounts, or any other pension or retirement account, and the parties can further refrain from applying for or requesting the payment of retirement benefits or annuity payments of any kind, without the consent of the other party or order of the court.
3. Neither party can incur unreasonable debts, such as by borrowing against any credit line secured by the family residence, further encumbering any assets, or unreasonably using credit cards or cash advances against credit cards, except in the usual course of business or for customary or usual household expenses, or for reasonable attorney’s fees in connection with the matrimonial action.
4. Neither party can cause the other or the children of the marriage to be removed from any existing medical, hospital and dental insurance coverage and each party must maintain the insurance coverage in full force and effect.
5. Neither party can change the beneficiaries of any existing life insurance policies and each party must maintain the existing life insurance, automobile insurance, homeowners and renters insurance policies in full force and effect.
Posted in Divorce Laws/ Issues, Divorce News, Pre-Trial Motions | Comments Off
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Wednesday, September 30th, 2009
The court can order one spouse to pay legal fees on behalf of the other spouse while an action for divorce is pending.
According to Domestic Relations Law §237, the Supreme Court has the discretion to award counsel fees and expert fees to a spouse who earns significantly less money than the other party in an action for annulment, separation or divorce. The award can be made by the Supreme Court either in the final judgment or while the action is pending.
In most cases, the spouse with lesser financial resources requests an award via a motion while the action is pending.
All requests for counsel fees must contain a Statement of Net Worth by the requesting party and a copy of his or her retainer agreement with their attorney.
For expert fees, the requesting party must disclose to the Court the nature of the marital property involved, the reason for retention of the expert, the difficulties in identifying or valuating the marital property, the services rendered by the expert and an estimate of the time and cost associated with retention of the expert.
The party requesting an award of counsel and/or expert fees need not be indigent for the Court to make such an award. The Court will consider the following factors when such a request is made:
1. Whether one spouse has substantially more income and assets than the other;
2. Whether or not the services performed by the attorney were necessary;
3. Whether the amount requested is reasonable under the circumstances of the case;
4. Whether the spouse with greater financial resources is better able to pay the fees of the requesting spouse;
5. Whether the conduct of the spouse with greater financial resources caused the requesting spouse’s counsel fees to be greater than they should have been, given the circumstances of the case;
6. Whether the litigation was commenced in good faith;
7. The value of the services rendered;
8. The standing of the attorney in the legal community and nature of services;
9. The complexity of the litigation;
10. The results obtained by the attorney;
11. The customary legal fees charged by the legal community as compared to the amount of fees requested.
Posted in Divorce Laws/ Issues, Pre-Trial Motions | Comments Off
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Wednesday, September 2nd, 2009
Many people use social networking sites to keep in touch with family and friends and to post updates and pictures of their children’s milestones. However, the use of these websites during a matrimonial action can be detrimental for your claims of grounds for divorce or custody of the children. For instance, a spouse who claims that her husband is not involved with the children could easily be countered by videos she posts to her account of her husband playing with the children. Or a spouse’s post that she is “out drinking with the girls” does not bode well in a custody dispute. Even worse is posting negative comments about your spouse when you are the one claiming to be the victim of his or her cruel and inhuman treatment. If you are unable to refrain from disclosing details of your divorce action online for all to see, perhaps it would be wise to avoid social networking sites until a Judgment of Divorce is issued.
Posted in Custody and Visitation, Fault Divorce, Pre-Trial Motions | Comments Off
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Wednesday, August 26th, 2009
In an action for divorce, separation or annulment, a New York Supreme Court can award exclusive use and occupancy, also known as exclusive possession, of the marital residence to one party. It is irrelevant if the property is titled jointly to both parties. The Court can issue such an order before the final judgment, known as pendente lite order, or as part of the final judgment of divorce, separation or annulment.
To receive an award of exclusive use and occupancy of the marital residence pendente lite, the requesting party must demonstrate either that the spouse’s presence in the home has caused domestic strife and that spouse has established an alternative residence or that exclusive occupancy is necessary to protect safety of persons or property at the premises.
An application for pendente lite exclusive use and occupancy of the marital residence must be made in a pre-trial motion. The Court can award exclusive use and occupancy without conducting a hearing if the Court believes that sufficient evidence has been presented in the motion papers. Generally, the following evidence is required to be contained in the motion papers for exclusive use to be awarded without a hearing:
- An affidavit submitted by the party in support of the request contains allegations of violent threats by the other spouse;
- Proof of prior police intervention, such as through police reports;
- An order of protection protecting the requesting spouse against the other party was previously issued;
- The presence of uncontroverted medical evidence, such as medical reports of physical and/or emotional abuse;
- Third parties submit affidavits in support of the allegations against the spouse.
If the motion papers contain allegations against the spouse that may be sufficient to warrant an award of exclusive occupancy, but do not include the above evidence, the Supreme Court may schedule a hearing.
Posted in Pre-Trial Motions | Comments Off
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