This presentation was used for the Bridge the Gap CLE at Fordham Law School in January 2015. I co-presented with another family lawyer. My part of the presentation covers the jurisdictional differences between Supreme Court and Family Court, the different divorce paths in New York (e.g., contested divorce, uncontested divorce), Notice of Automatic Orders, matrimonial agreements (e.g, prenuptial agreements), grounds for an annulment and grounds for a divorce, equitable distribution, child support and spousal maintenance.

1. A Primer on Matrimonial Law
Selected Topics
January 24, 2015
By Cari B. Rincker, Esq.

2. Who I Am
• Principal Attorney
at Rincker Law, PLLC
• Family and
Matrimonial Lawyer
• Trained Mediator
for Divorces and
Child Custody
Disputes

3. Supreme Court v. Family Court
•Divorces
Supreme
Court
•For married for divorcing families
•Child Custody and Visitation
•Child Support
•Spousal Support
•Family Offenses
Concurrent
Jurisdiction
•Between unmarried persons
•Child Custody and Visitation
•Child Support
•Family Offenses
•Child protective proceedings
Family Court

4. Commencing a Divorce
• A divorce is a law suit
– Sometime has to be the
Plaintiff and the other has
to be the Defendant
• Summons with Notice
• Summons with Verified
Complaint
– Defendant can (and likely
does) counterclaim for a
divorce
• Court can issue a “Dual
Divorce”

5. What is an “Uncontested Divorce”?
• Does not mean that the
parties agree on all the
issues
• It simply means that no
court intervention was
required
• Parties usually submit a
divorce settlement
agreement with the
court

6. How is a Settlement Reached?
• How Parties reach a
global settlement in a
divorce
– By themselves
– With attorneys
– Alternative Dispute
Resolution
• Mediation
• Collaborative Divorce
• Early Neutral Evaluation
• Arbitration (economic issues
only)

7. Uncontested Divorce Packet
• Uncontested divorce packet list and forms available at
http://www.nycourts.gov/divorce/
• Forms for the packet
– Request for Judicial Intervention ($95) (and addendum if children)
– Sworn Statement of Removal of Barriers to Remarriage (religious marriage only)
– Attorney Affirmation of Regularity
– Affidavit of Plaintiff
– Affidavit of Defendant
– Child Support Worksheet & Child Support Summary Form
– Support Collection Unit Information Sheet and Income Withholding Order
– Qualified Medical Child Support Order
– Proposed Finding of Fact and Conclusions of Law
– Judgment of Divorce
– Certificate of Dissolution
– Part 130 Certification
– DRL 255(2) Addendum (health insurance)
– Notice of Settlement
– Stipulation of Settlement ($35 filing fee)
– Note of Issue ($30)
– Self-addressed envelope

8. So What is a “Contested Divorce”?
• Put simply, it is a divorce that requires court
intervention
• It can be as little as one court appearance and
could last longer than the Civil War
• Only 2 ways out – settle your case or go to
trial
• Mat judges promote settlement
• Discovery is the biggest wild card with this
path

9. Which Path is Better?
• If possible, uncontested divorce path
tends to be cheaper for the parties
and (usually) better if children are
involved
– Because of this, attorneys should at
least attempt the uncontested route
first
• However, some divorces are not
appropriate for an uncontested
divorce scenario
– Think about emergency situations
(e.g., one spouse cut off the other
spouse financially and he/she has no
money to pay living expenses)

10. Notice of Automatic Orders
• Oftentimes people think
their assets will be “frozen”
during a divorce. This isn’t
the case.
• A Notice of Automatic
Orders must be served with
the Summons with
Notice/Verified Complaint -
https://www.nycourts.gov/
divorce/forms_instructions
/Notice.pdf

11. Notice of Automatic Orders
• Under DRL 236, Part B, Section 2, both parties to a
divorce:
– Cannot transfer, encumber, assign, remove, withdraw,
dispose of any property (e.g.,. Real property, personal
property, bank accounts, stocks, mutual funds, cars)
without consent of the other party or order by the court
– Cannot enter into unreasonable debts
• Exceptions
– Usual course of business
– Customary household expenses
– Reasonable attorneys fees for the divorce

12. Notice of Automatic Orders
• Under DRL 236, Part B,
Section 2, both parties
to a divorce:
– Cannot remove other
party or children to any
existing health insurance
– Must keep life insurance,
automobile insurance,
homeowners/renters
insurance coverage
under full force and
effect

13. Types of Matrimonial Agreements
• Extremely rare – may cover issues such as pet custody, tenancy to the apartment, and payment for
household expenses
Cohabitation Agreements
Prenuptial Agreements
Post Nuptial Agreement
• Conversion divorce after 1 year with no reconciliation
Separation Agreement
• Could be a series of agreements (e.g., Parenting Plan or Custody and Visitation Agreement, Child
Support Agreement, Property Settlement Agreement)
Stipulation of Settlement
• You think the drama always ends when the Judgment of Divorce is signed? Think again.
Post-Divorce Settlement Agreements

14. Prenuptial Agreements
• Courts will generally
uphold prenups if:
– Both sides are
represented by separate
attorneys
– Terms are fair and
reasonable
– Notarized by the parties
– No illegality, duress or
undue influence

15. What Do “Prenups” Cover?
Operative Event •What is the definition
Identification Property
•Separate Property defined and identified in a Schedule
•Marital Property Defined
•How will Marital Property be divided?
Spousal Maintenance
•Temporary and/or durational support
•Can be waived
Estate Rights •Waiver or no waiver?
Procedures
•Separation?
•Selling Marital Residence?
•Alternative Dispute Resolution?
Agreements during
Marriage
•Access to accounts
•Life insurance
Miscellaneous
•Confidentiality
•Sunset provision

16. Grounds for an AnnulmentVoidMarriages
• Bigamous marriage
• Marriage with persons
under 14 years of age
• Incestuous marriage
VoidableMarriages
• Marriage with persons
between 14 and 18
• One party is mentally
retarded/ill
• Unless voluntary
cohabitation after sound
mind is restored
• Physical incapacity to enter
marriage
• Consent for marriage by
force, duress or fraud
• Incurable mental illness

17. Grounds for Divorce
• To get divorced in New
York, you need a “ground”
• Fault-Grounds for Divorce
– Adultery
– Cruel & Inhuman Treatment
– Abandonment
• Actual
• Constructive
– Imprisonment

18. Adultery
• Adultery under DRL § 170(4)
includes sexual intercourse, oral
sex, anal sex, sex with an animal or
dead human body.
– 1 act is sufficient
– During marriage
• Doesn’t including kissing, fondling,
sexting, or online sexual
relationships.
• Defenses
– Condonation/forgiveness
– Complaining party must not
procure/arrange infidelity
• SOL is 5 years
Anthony Weiner tweeting/
sexting pics doesn’t
constitute adultery

19. Cruel & Inhuman Treatment
• Under DRL § 170(1), it includes “conduct of
the defendant which so endangers the
physical or mental well-being of the plaintiff
as to render it unsafe or improper for the
plaintiff to cohabit with the defendant.”
– Doesn’t require intent
– Requires a course of conduct
– The longer the marriage, the more proof is
required

20. Cruel & Inhuman Treatment
• Types of conduct that might be
included are the following:
– Physical abuse/violence;
– Verbal/emotional abuse;
– Threats of violence;
– Sexual infidelity and/or telling
spouse about adultery whether or
not it actually occurred;
– False accusations of infidelity;
– Drug and/or alcohol abuse;
– Compulsive gambling;
– Surveillance and/or wiretapping;
– Lure and attraction of a paramour;
– Denial of sexual relations in
addition to other misconduct.
• 5 year statute of limitation

21. Cruel and Inhuman Treatment
• Was does not constitute cruel & inhuman
treatment?
– Incompatibility
– Acrimonious /strained relationship
– Loveless or dead marriage
– Isolated acts of violence
– Public embarrassment
– Fiscal irresponsibility /manipulation
– A few bad names /unkind words (unless very short
marriage)

22. Abandonment
• Actual (Physical)
– Where a spouse’s physical departure from
the marital residence is unjustified,
voluntary, without consent, and with an
intention to not return to the marital
home.
• Constructive
– Where there is an unjustified failure or
refusal of one spouse to engage in sexual
relations.
– Complaining spouse must have repeatedly
requested a resumption of sexual
relations.

23. Imprisonment
• DRL § 170(3) permits
a divorce if Defendant
is imprisoned for a
period of three years
after marriage.
– Doesn’t include time
when “out on bail” or
probation
• 5 Year SOL once
spouse is released
from confinement

24. Grounds for Divorce
• “No Fault” Grounds for
Divorce
– Irretrievable Breakdown in the
relationship for 6 months or
more prior to the
commencement of the divorce
– Conversion Divorce
• Separation Agreement signed
and couple live separate and
apart for 1 year pursuant to the
terms of the agreement

25. Why Does a “Ground” Matter Anyway?
It is one of the factors that the court can
consider with equitable distribution of marital
property
Separate
Property
Marital
Property
Separate
Property
Additionally, some grounds may be helpful for immigration
(e.g., domestic violence visa).

26. Children
• Veronica Escobar to
present on
– Child Custody
– Visitation/ Parenting
Time
– Relocation
– Parental
Alienation/Interference

27. Child Support
• Child Support Standards Act (“CSSA”):
– statutory formula for the basic child support
obligation is based upon a percentage of the first
$141,000 of the parties’ combined gross income plus
a discretionary percentage of the parties’ combined
gross income in excess of $141,000
– Applicable percentages
• 17% - one child;
• 25% - two children;
• 29% - three children;
• 31%- four children; and,
• 35% - five or more children.

28. Child Support
• Factors court consider for an upward for downward modification
– The financial resources of the custodial and noncustodial parent, and those of
the child;
– The physical and emotional health of the child and his/her special needs and
aptitudes;
– The standard of living the child would have enjoyed had the marriage or
household not been dissolved;
– The tax consequences to the party;
– The nonmonetary contributions that the parents will make towards the case
and well-being of the child;
– The educational needs of either parent;
– A determination that the gross income of one parent is substantially less than
the other parents’ gross income;
– The needs of other children of the noncustodial parent for whom the
noncustodial parent is providing support;
– Extraordinary expenses of the noncustodial parent; and
– Any other factor the court determines are relevant to each case.

29. Child Support
• Additionally, the court will order that the parents
pay their pro rata share of “add on” expenses
– Unreimbursed health care expenses
– Health insurance (depending on the income of
parties)
– Educational expenses
– Child care expenses
– Extra-curricular activities
(discretionary)

30. Spousal Support
• 2 Types of Maintenance
– Temporary Maintenance (or
Pendente Lite Maintenance)
– Durational Maintenance
• They both can be waived in
a prenuptial agreement; if
prenup is silent on
temporary maintenance
waiver then it is not waived

31. Temporary Maintenance
• The lesser of:
– 30% of the income of the
payor up to the cap less 20%
of the income of the payee; or
– 40% the sum of the payor’s
income up to and including
the cap and all of the payee’s
income less the income of the
payee
• Cap is currently $543,000

32. Huh? Let’s Look at an Example
Example
1. Plaintiff makes $100K (after Social Security, Medicare and Local
Taxes)
2. Defendant makes $20K (after Social Security, Medicare and Local
Taxes)
Calculation A (30% of Payor’s income minus 20% of Payee’s Income) =
$26,000
Calculation B (40% of Combined Income minus Payor’s Income) =
$28,000
Temporary Maintenance will be $26K a year (or $2,166.67 per month)

33. Let’s Look at a Another Example
Example
1. Plaintiff makes $450K (after Social Security, Medicare and Local
Taxes)
2. Defendant makes $100K (after Social Security, Medicare and Local
Taxes)
Calculation A (30% of Payor’s income minus 20% of Payee’s Income) =
$115,000
Calculation B (40% of Combined Income minus Payor’s Income) =
$120,000
Temporary Maintenance will be $115K a year (or $9,583.33 per month)

34. Let’s Look at a Another Example
Example
1. Plaintiff makes $1 mil (after Social Security, Medicare and Local
Taxes)
2. Defendant makes $0.00 (after Social Security, Medicare and Local
Taxes)
Calculation A (30% of Payor’s income minus 20% of Payee’s Income) =
$162,900
Calculation B (40% of Combined Income minus Payor’s Income) =
$217,200
Temporary Maintenance will be $162,900 a year (or $13,575 per month)
If over the cap, then court will look at various factors…

35. Temporary Spousal Maintenance
• Factors that the Court Will Consider if above “income cap”
– Length of the marriage;
– Substantial differences in the income of the parties;
– Marital standard of living;
– Age and health of the parties;
– Present and future earning capacities of the parties;
– Educational needs of the parties;
– Wasteful dissipation of marital property;
– Transfer or encumbrance made in contemplation of a
matrimonial action without fair consideration;
– Existence and duration or pre-marital joint household or pre-
divorce separate household;
– Acts by one party against the other that have or continue to
inhibit a party’s earning capacity or ability to obtain meaningful
employment, including, but not limited to, domestic violence;

36. Temporary Spousal Maintenance
• More factors
– Availability and cost of medical insurance for the parties;
– Care of the children or stepchildren, disabled adult children, elderly
parents or in-laws that has or continued to inhibit party’s earning capacity;
– Inability of one party to obtain meaningful employment due to age or
absence from the workforce;
– Need to pay for exceptional additional expenses for the child or children,
including, but not limited to, schooling, day care and medical treatment;
– Tax consequences to each party;
– Marital property subject to distribution;
– Reduced or lost earning capacity of the party seeking temporary
maintenance due to forgone/delayed education, training, or employment
during marriage;
– Contribution and services of the party seeking temporary maintenance as
spouse, parent, wage earner and homemaker and to the career or career
potential of the other party; and,
– Any other factor that the Court
deems just and proper.

37. Durational Maintenance
• New York (very rarely) awards lifetime alimony if the Payee is
healthy; it is almost always for a duration.
• The twenty (20) factors used by the courts to determine spousal
maintenance under DRL §236(B)(6) are the following:
– the income and property of the respective parties including marital
property distributed pursuant to subdivision five of this part;
– the length of the marriage;
– the age and health of both parties;
– the present and future earning capacity of both parties;
– the need of one party to incur education or training expenses;
– the existence and duration of a pre-marital joint household or a pre-
divorce separate household;
– acts by one party against another that have inhibited or continue to
inhibit a party's earning capacity or ability to obtain meaningful
employment (e.g., domestic violence);

38. Durational Maintenance
• More factors
– 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;
– the presence of children of the marriage in the
respective homes of the parties;
– the care of the children or stepchildren, disabled
adult children or stepchildren, elderly parents or
in-laws that has inhibited or continues to inhibit a
party's earning capacity;
– the inability of one party to obtain meaningful
employment due to age or absence from the
workforce;
– the need to pay for exceptional additional
expenses for the child/children, including but not
limited to, schooling, day care and medical
treatment;

39. Durational Maintenance
• More factors
– the tax consequences to each party;
– the equitable distribution of marital property;
– 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;
– the wasteful dissipation of marital property by
either spouse;
– the transfer or encumbrance made in
contemplation of a matrimonial action without
fair consideration;
– the loss of health insurance benefits upon
dissolution of the marriage, and the availability
and cost of medical insurance for the parties;
and
– any other factor which the court shall expressly
find to be just and proper.

40. Equitable Distribution
Splitting the “Marital Property” bucket
Marital PropertySeparate Property Separate Property

41. What is in the “Separate Property” Bucket?
• Property acquired before the marriage.
• Property acquired by bequest, devise, descent
(inheritance).
• Gifts to one spouse from anyone other than the
other spouse.
• Compensation for personal injury cases, but only for
the part which is pain and suffering and punitive
damages.
• Separate property acquired in exchange for
separate property.
• Appreciate of separate property if the non-titled
spouse did not contribute towards the appreciation.
• Property deemed such by a validly executed marital
agreement (e.g., prenuptial agreement, postnuptial
agreement).
Prenups define what is separate property-
can add more

42. What is in the “Marital Property”
(Love) Bucket?
• Everything else.
• Property acquired by
either spouse during the
marriage regardless of
title
• Appreciation of separate
property during marriage
if other spouse plays role
in appreciation
– Active vs. passive
appreciation

43. Equitable Distribution
• Equitable does not mean “equal”
• Factors considered for equitable distribution under DRL 236
B(5)(a):
– The income and property of each party at the time of marriage;
– The duration of the marriage and the age and health of both
parties;
– The need of a custodial parent to occupy or own the marital
residence and to use or own its household effects;
– The loss of inheritance and pension rights upon dissolution of
the marriage as of the date of dissolution;
– The loss of health insurance benefits upon dissolution of the
marriage;
– Any award of maintenance under subdivision six of this party;

44. Equitable Distribution
• More factors
– 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;
– The liquid or non-liquid character
of all marital property;
– The probable future financial
circumstances of each party;

45. Equitable Distribution
• More factors
– The impossibility or difficulty of
evaluating any component asset or any
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;
– The tax consequences to each party;
– The wasteful dissipation of assets by
either spouse;
– Any transfer or encumbrance made in
contemplation of a matrimonial action
without fair consideration; and,
– Any other factor which the court shall
expressly find to be just and proper.

46. Same Sex Marriage
• Same sex marriage
became legal in New
York State when the
Marriage Equality Act
came into effect on
July 24, 2011.
• Veronica Escobar, Esq.
to discuss more on the
topic

47. Family Offenses
• Both Family Court and
Supreme Court have
concurrent jurisdiction
on Family Offense
Petitions and Orders of
Protection.
• Veronica Escobar, Esq.
will discuss this topic in
more detail.

48. Please Stay in Touch
• Send Me Snail Mail: 535 Fifth Avenue, 4th Floor,
New York, NY 10017
• Call Me: (212) 427-2049 (office)
• Email Me: cari@rinckerlaw.com
• Visit My Website: www.rinckerlaw.com
• Read My Food, Farm & Family Law Blog:
www.rinckerlaw.com/blog
• Tweet Me: @CariRincker @RinckerLaw
• Facebook Me: www.facebook.com/rinckerlaw
• Link to Me: http://www.linkedin.com/in/caririncker
• Skype Me: Cari.Rincker