B ridge the G ap 2 D ay 2

Transcription

1 Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers Association, 14 Vesey Street, New York, NY presented on Friday, August 9, N Y C L A - C L E I n s t i t u t e B ridge the G ap 2 D ay 2 P r o g r a m F ac u l t y : Briana Denney, Newman & Denney PC Natalie S. Feher, Complete Discovery Source (CDS) Vincent R. Martorana, Reed Smith LLP Dino Medina, Complete Discovery Source (CDS) Philip Smallman, Esq. 8 TRANSITIONAL & NON-TRANSITIONAL MCLE CREDITS: This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 8 Transitional & Non-Transitional credit hours: 5 PP; 3 Skills This program has been approved by the Board of Continuing Legal Education of the Supreme Court of New Jersey for 8 hours of total CLE credit. Of these, 0 qualify as hours of credit for Ethics/Professionalism, and 0 qualify as hours of credit toward certification in civil trial law, criminal trial law, workers compensation law and/or matrimonial law.

2

3 Information Regarding CLE Credits and Certification New York Bridge the Gap August 9, 2013; 9:00 AM to 4:30 PM The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution. i. You must sign-in and note the time of arrival to receive your course materials and receive MCLE credit. The time will be verified by the Program Assistant. ii. iii. iv. You will receive your MCLE certificate as you exit the room at the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate. Please note: We can only certify MCLE credit for the actual time you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week. v. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly, unless you can provide verification of course completion. Your certificate will be mailed to you within one week. Thank you for choosing NYCLA as your CLE provider!

4

5 New York County Lawyers Association Continuing Legal Education Institute 14 Vesey Street, New York, N.Y (212) New York Bridge the Gap August 9, :00AM 4:30PM AGENDA August 9, :00 AM 10:40 AM Introduction to Criminal Trial Practice Philip Smallman, Esq. 10:50 AM 12:30 PM Overview of Matrimonial Law Briana Denney, Newman & Denney P.C. 12:30 PM 1:00 PM LUNCH 1:00 PM - 2:40 PM Intermediate Concepts in Contract Drafting Vincent Martorana, Reed Smith LLP 2:50 PM 4:30 PM What You Must Know about E-Discovery Natalie Feher, Complete Discovery Source Dino Medina, Complete Discovery Source

6

7 Continuing Legal Education Institute 14 Vesey Street, New York, N.Y New York Bridge the Gap August 9, 2013 COURSE MATERIALS Introduction to Criminal Trial Practice 1 Philip Smallman, Esq. Overview of Matrimonial Practice 2 Briana Denney, Newman & Denney PC Intermediate Concepts in Contract Drafting 3 Vincent Martorana, Reed Smith LLP Section What You Must Know about E-Discovery Natalie Feher, Complete Discovery Source Dino Medina, Complete Discovery Source (Separate Book)

8

9 Philip J. Smallman, Esq. 32 Court Street Suite 1702 Brooklyn, New York Phone: Fax: Work History 1994 to Present, Private Law Practice, numerous Supreme Court Trials of Class A Felony Cases, Article 81 Proceedings, Supreme Court Trial Matters, Family Court and Surrogates Court, General Civil Matters; Law Secretary to Acting Supreme Court Justice Seymour Gerschwer, Kings County; Private Law Practice; Assistant District Attorney, Kings County Special Assistant Attorney General, Office of the Special State Prosecutor for Corruption in the New York City Criminal Justice System Assistant District Attorney, Queens County PRO BONO EXPERIENCE I devoted significant parts of four years to conduct an investigation which led to overturning a wrongful conviction and freeing an innocent man who had served nine years of an eighteen year jail sentence Education J.D. Pace University Law School, 1982 B.A. Fordham University, 1977 Guest Lecturer, Pace Law School and Brooklyn Law School Volunteer Associate at The Second Look Program of Brooklyn Law School

10 Philip J. Smallman 32 Court Street Suite 1702 Brooklyn, New York Phone: Fax: BIOGRAPHY Phil Smallman was born, raised and is a lifelong Brooklyn resident. He is married, an the proud father of three and a grandfather. He graduated from Xaverian High School, Fordham University and Pace University School of Law, (J.D. 1982). He has been admitted to the practice of law in the Courts of New York State as well as the Southern and eastern Districts of the Federal Courts. His employment history includes staff, operational and management duties at the New York Daily News. Phil Smallman s law enforcement work history includes service as a Deputy U.S. Marshal, (S.D.N.Y.) and Assistant District Attorney in both Queens and Kings Counties, and a Special Assistant Attorney General for the Office of the Special Prosecutor for Corruption. In the private practice of law, Phil has tried in excess of fifty Class A felony matters many of which were also newsworthy. In the course of his practice, he conducted an investigation of the conviction of Gerald Harris, a young man who served nearly a decade for a crime he did not commit. After nearly four years of work, Phil s motion to vacate his wrongful conviction was joined by the Queens District Attorney and Mr. Harris was freed. Phil volunteers his time to coach 78 th Precinct basketball and baseball and has served on their Executive Board. He coached AYSO youth soccer and started and coached the first sports team in the history of Dominical Academy High School to two consecutive championships. He also served as President of the Genesis School Parents Advisory Committee as a member of the Father s guild of Xavier High School. Phil is a member of Bar Associations and fraternal organizations.

11 NEW YORK CRIMINAL PROCEDURE Hon. Barry Kamins 1. Arrests a) Arrests without a Warrant - CPL b) Desk Appearance Tickets - CPL 150 c) Arrest Warrant - CPL 120 i) Payton v. New York, 445 US 573 (1980) 2. Commencement of the Criminal Action a) Prosecutor s Information - CPL 1.20 b) Misdemeanor Complaint - CPL 1.20 c) Information - CPL 1.20 d) Simplified Traffic Information - CPL 1.20 e) Felony Complaint - CPL 1.20 People v. Alejandro, 70 NY2d 133 (1987) 3. Arraignment a) Bail - CPL Articles 510, 520 and 530 b) Orders of Protection - CPL c) Notices 1

12 CPL CPL People v. O Doherty, 70 NY2d 479 (1987) d) Request for Article 730 examination 4. Preliminary Examination - CPL People v. Hodge, 53 NY2d 313 (1981) 5. Release of Defendant in Custody CPL , ) Grand Jury - CPL Article 190 a) Composition and Quorum People v. Collier, 72 NY2d 298 b) Evidence c) Powers of Grand Jury People v. Lancaster, 69 NY2d 20 (1986) 1) Standard of Proof People v. Lopez, 79 NY2d 402 d) Transactional Immunity Matter of Rush v. Mordue, 68 NY2d 348 (1986) 1) Waiver e) Defendant s Right to Testify People v. Evans, 79 NY2d 407 (1992) f) Secrecy 2

13 Matter of DA of Suffolk Co., 58 NY2d 436 (1985) g) Prosecutor s Duty to Present Exculpatory Evidence People v. Hansen, 99 NY2d 339 (2003) h) Prosecutor s Role as Advisor People v. DeFabio, 79 NY2d 836 (1992) i) Order of Witnesses Morgenthau v. Altman, 58 NY2d 1057 (1983) j) Quorum People v. Collier, 72 NY2d 298 k) Waiver of Indictment - CPL 195 People v. Boston, 75 NY2d 585 (1990) l) Sandoval in the Grand Jury People v. Smith, 87 NY2d 715 (1996) m) Resubmission to the Grand Jury People v. Aarons, 2 NY3d 547 (2004) 7) Indictments - CPL 200, 210, 240 a) Amendments - People v. Taylor, 43 AD2d 519 b) Superceding - People v. Maye, 79 NY2d 104 c) Specificity - People v. Keindl, 68 NY2d 410 (1986) 8) Discovery a) Constitutional - Brady v. Maryland (1963) 3

14 b) Statutory - CPL c) Public Policy - People v. Rosario, 9 NY2d 286 (1961) 9) Guilty Pleas a) Voluntariness - People v. Selikoff, 35 NY2d 227 (1974) b) Serrano Pleas - People v. Serrano, 15 NY2d 304 (1965) c) Immigration Consequences Padilla v. Kentucky, US, 130 S Ct 1473 (2010) 10) Pre-Trial Hearings A) Suppression of Physical Evidence (Mapp Hearing) Mapp v. Ohio, 367 US 643 (1961) 1) Motion to Suppress a) Motion must be made as part of omnibus motion within 45 days of Criminal Court or Superior Court arraignment. (Court can also grant extension for good cause ). b) Motion must state a legal basis for suppression (CPL (1)). Suppression can be based upon an unlawful search and seizure under the federal or state constitutions. c) Legal basis for suppression must be supported by sworn allegations of fact (CPL (1). 1) Factual sufficiency is evaluated under the three-pronged test of People v. Mendoza, 82 NY2d 415 (1993). 4

15 a) The defendant must allege facts rather than conclusions. b) The defendant s allegations must be read in context with the prosecutor s theory of the case. c) The court must consider the defendant s access to information necessary to support suppression. 2) The facts must establish both a substantive theory of suppression and the defendant s standing to challenge the unlawful conduct. 3) A suppression court can summarily deny a motion to suppress when the defendant uses boilerplate or conclusory language (People v. Vega, 210 AD2d 41 (1 st Dept. 1994). d) Prosecution is not required to file a written answer to the motion (CPL (I); however the court can then determine the motion on the undisputed assertions of the defense. 1) If the prosecution files a written response, the failure to deny the truth of a fact alleged by the defense is deemed an admission (People v. Gruden, 42 NY2d 214 (1977). However, the People can assert that they controvert a particular allegation without filing a specific denial. (People v. Weaver, 49 NY2d 1012). 2) Disposition of Motion to Suppress 5

16 a) Court must summarily grant a motion to suppress (no hearing is necessary) when 1) The prosecution concedes the allegations of fact or the legal basis for suppression (CPL (2)(a) 2) The prosecution stipulates that it will not offer the physical evidence against the defendant (CPL (2)(b) b) Court may summarily deny a motion to suppress when 1) The defense fails to allege sworn allegations of fact to support a legal basis for the motion. 2) The defense fails to allege a legal basis for the motion c) If a court does not summarily grant or deny a suppression motion, it must conduct a hearing. (CPL (4). 3) The Hearing a) A defendant has an absolute right of counsel at a Mapp hearing (People v. Anderson, 16 NY2d 282) (1965). b) While a defendant can forfeit his right to attend the hearing by absconding, he does not forfeit his right to the hearing itself. (People v. Whitehead, 143 AD2d 1066 (2d Dept. 1988). c) Hearsay is admissible at the hearing (CPL (4). d) The defendant is entitled to Brady and Rosario material at the hearing (People v. Geaslen, 54 NY2d 510 (1981); People v. Banch, 80 NY2d 610 (1992). 6

17 e) The prosecution has the burden of going forward to establish the legality of police conduct (People v. Malinsky, 15 NY2d 86 (1965). 1) The prosecution must present credible testimony. The burden will not be met if the testimony is: a) incredible as a matter of law; b) has all the appearances of having been tailored to nullify constitutional objections; c) evasive or disingenuous; d) physically impossible; e) contrary to experience; f) self-contradictory. f) Once the prosecution meets its burden, the defendant has the ultimate burden, by a fair preponderance of the evidence, to establish the illegality of the police conduct. (People v. Berrios, 28 NY2d 361 (1971). g) There are several exceptions to the rule placing the ultimate burden on the defense. In the following situations, the People have the ultimate burden: 1) The defendant consents to a search (People v. Whitehurst, 25 NY2d 389 (1969) (by clear and positive evidence). 2) The defendant abandons property (People v. Howard, 50 NY2d 583 (1980). 7

18 4) The Court s Ruling 3) The three exceptions to the fruit of the poisonous tree doctrine. a) Inevitable Discovery Doctrine (People v. Bookless, 120 AD2d 950 (4 th Dept. 1986). b) Attenuation (People v. Martinez, 37 NY2d 662 (1975). c) Independent Source (People v. Arnau, 58 NY2d 27 (1982). a) The suppression court must state on the record its finding of fact, conclusions of law and the reasons for its determination (CPL (6).. b) The ruling must be made prior to jury selection (CPL (3) c) Defendant has the right to a transcript of the hearing prior to the commencement of a trial provided the request is made before the hearing concludes. (People v. Sanders, 31 NY2d 463 (1973). B) Suppression of Statements (Huntley Hearing) (People v. Huntley, 15 NY 72 (1965) 1) Motion to Suppress a) Motion must be made as part of omnibus motion within 45 days of Criminal Court or Superior Court arraignment. The 45 day period begins to run from date when statement or identification notice is served. (Court can also grant extension for good cause ). 8

19 b) Motion must state a legal basis for suppression (710.60(1)). Suppression can be based on one of the following grounds: 1) A violation of Miranda v. Arizona, 384 US 436 (1966) (5 th Amendment). 2) A violation of traditional involuntariness rules (14 th Amendment). 3) A violation of the New York right to counsel rules (Article 1, Section 6, New York State Constitution). 4) A violation of the prohibition against illegal searches and seizures (4 th Amendment) (See also CPL that discusses suppression of statements involuntarily made ). c) Legal basis for suppression must normally be supported by sworn allegations of fact (CPL (1)). 1) When a Huntley hearing is requested there is an exception to the factual pleading requirement. (CPL (3)(b) and (3)). 2) The absence or inadequacy of factual allegations is not a basis on which the court may summarily deny the motion. 3) The exception does not apply when the defendant seeks to suppress a confession as fruit of an unlawful search or seizure; the defendant must allege sufficient sworn allegations of fact. (People v. Rosario, 245 AD2d 151 (1 st Dept. 1997); People v. Mendoza, 82 NY2d 415 (1993). 9

20 d) Prosecution is not required to file a written answer to the motion (CPL (1)); however the court can then determine the motion on the undisputed assertions of the defense. 1) If the prosecution files a written response, the failure to deny the truth of a fact alleged by the defense is deemed an admission (People v. Gruden, 42 NY2d 214 (1977)). However, the People can assert that they controvert a particular allegation without filing a specific denial. (People v. Weaver, 49 NY2d 1012) 2) Disposition of Motion to Suppress a) Court must summarily grant a motion to suppress (no hearing is necessary) when: 1) The prosecution concedes the allegations of fact or the legal basis for suppression (CPL (2)(a))... 2) The prosecution stipulates that it will not offer the statement against the defendant (CPL (2)(b)) b) The court may summarily deny a motion to suppress if the defense fails to allege a legal basis or ground for suppression c) If a Court does not summarily grant or deny a suppression motion, it must conduct a hearing. (CPL (4)). 3) The Hearing a) A defendant has an absolute right to counsel at a Huntley hearing (People v. Anderson, 16 N&2d 282 (1965)). 10

21 b) While a defendant can forfeit his right to attend the hearing by absconding, he does not forfeit his right to attend the hearing itself. (People v. Logan, 271 AD2d 549 (2d Dept. 2000)). c) Hearsay is admissible at the hearing (CPL (4)). d) The hearing is not designed to determine the truth or accuracy of a statement or whether the defendant actually made the statement; those issues are to be determined at trial (People v. Schompert, 19 NY2d 300 (1967)). e) The defendant is entitled to Brady and Rosario material at the hearing (People v. Geaslen, 54 NY2d 510 (1981)); People v. Banch, 80 NY2d 610 (1992)). f) The prosecution has the burden of going forward to establish either a lawful rationale for the conduct of the police or some other basis for averting suppression of a statement. (People v. Wesley, 73 NY2d 351 (1989)); People v. Chavis, 147 AD2d 582 (2d Dept. 1989)). g) With respect to traditional voluntariness issues (14 th Amendment), the prosecution has the ultimate burden to establish, beyond a reasonable doubt, that the statement was voluntary (People v. Huntley, 15 NY2d 72 (1965)); People v. Valeruis, 31 NY2d 52 (1972)). h) With respect to a violation of Miranda: 1) The people have the burden of going forward to establish: a) That the defendant was adequately advised of his Miranda rights (People v. Ringer, 140 AD2d

22 (2d Dept. 1988)); People v. Gonzalez, 55 NY2d 720 (1981). 2) Once the People meet this burden, the defendant has the ultimate burden of establishing: a) The rights were not given or understood (People v. Love, 85 AD2d 799 (3d Dept. 1981)). b) The defendant was in custody at the time he was interrogated. (Berkemer v. McCarty, 468 US 420 (1984)); cf People v. Alls, 83 N&2d 94 (1993). c) When the defendant has made two statements, and the first is obtained unlawfully, but the second lawfully, the first statement taints the later one (People v. Tanner, 30 NY2d 102 (1972)). I) With respect to New York s right to counsel rules, once the prosecution has met its burden of going forward, the defense has the ultimate burden of persuasion to establish that the defendant s right to counsel had attached at the time of the statement (People v. West, 81 NY2d 370 (1993)). 1) Once the defendant carries this burden, the prosecution then has the burden to establish: a) That the representation by counsel had ceased (People v. West, 81 NY2d 370 (1993)). b) That the right to counsel was validly waived if waiver was possible (People v. Davis, 75 NY2d 517 (1990)). 4) The Court s Ruling 12

23 a) The suppression Court must state on the record its findings of fact, conclusions of law and the reasons for its determination (CPL (6)). b) The ruling must be made prior to jury selection (CPL (3)). c) Defendant has the right to a transcript of the hearing prior to the commencement of a trial provided the request is made before the hearing concludes (People v. Sander, 31 NY2d 463 (1973)). d) A ruling suppressing a statement at trial is different from a preclusion order that prevents the People from introducing a statement because the People failed to serve proper notice of the evidence (CPL (3)). 1) The people may appeal a suppression ruling but may not appeal a preclusion order (CPL ). (People v. Laing, 79 NY2d 166 (1992)). C) Suppression of Identification Evidence (Wade Hearing) U.S. v. Wade, 388 US 218 (1967) 1) Motion to Suppress a) Motion must be made as part of omnibus motion within 45 days of Criminal Court or Superior Court arraignment. The 45 day period begins to run from date when statement or identification notice is served. (Court can also grant extension for good cause ). 13

24 b) Motion must state a legal basis for suppression (710.60(1)). Suppression can be based on one of the following three grounds: 1) Product of an unduly suggestive identification procedure (lack of due process) (14 th Amendment). 2) Violation fo an accused person s right to counsel (Sixth Amendment). 3) Fruit of an unlawful search or seizure (Fourth Amendment). c) Legal basis for suppression must normally be supported by sworn allegations of fact (CPL (1)). 1) When a Wade hearing is requested, there is an exception to the factual pleading requirement (CPL (3)(b) and (6)). 2) The absence or inadequacy of factual allegations is not a basis on which the court may summarily deny the motion. 3) The exception does not apply when the defendant seeks to suppress identification evidence as fruit of an unlawful search or seizure; the defendant must allege sufficient sworn allegations of fact. (People v. Mendoza, 82 NY2d 415 (1993)). d) Prosecution is not required to file a written answer to the motion (CPL (1)); however, the court can then determine the motion on the undisputed assertions of the defense. 14

25 1) If the prosecution files a written response, the failure to deny the truth of a fact alleged by the defense is deemed an admission. (People v. Gruden, 42 NY2d 214 (1977)). However, the People can assert that they controvert a particular allegation without filing a specific denial. (People v. Weaver, 49 NY2d 1012)). 2) Disposition of Motion to Suppress a) Court must summarily grant a motion to suppress (no hearing is necessary) when: 1) The prosecution concedes the allegations of fact or the legal basis for suppression (CPL (2)(a)). 2) The prosecution stipulates that it will not offer the identification evidence against the defendant (CPL (2)(b)). b) Court may summarily deny a motion to suppress when: 1) The defense fails to allege sworn specific facts when the identification evidence is the fruit of an unlawful search or seizure. 2) The defense fails to allege a legal basis or ground for suppression. 3) The defense alleges a legal basis for suppression but the prosecution demonstrates with sworn factual allegations that, as a matter of law, there is no identification subject to suppression under CPL , e.g. confirmatory identification. 15

26 a) If there is an issue of fact as to whether the identification is exempt from CPL , a hearing must be ordered. c) If a court does not summarily grant or deny a suppression motion, it must conduct a hearing. (CPL (4)). 3) The Hearing a) A defendant has an absolute right to counsel at a Wade hearing. (People v. Carracedo, 214 AD2d 404 (1 st Dept. 1995)). b) While a defendant can forfeit his right to attend the hearing by absconding he does not forfeit his right to the hearing itself (People v. Griffin, 225 AD2d 792 (2d Dept. 1996)); People v. Whitehead, 143 AD2d 1066 (2d Dept. 1988)). c) Hearsay is admissible at the hearing (CPL (4)). d) The defendant is entitled to Brady and Rosario material at the hearing. (People v. Geaslen, 54 NY2d 510 (1981)); People v. Banch, 80 NY2d 610 (1992). e) The prosecution has the burden of going forward with credible evidence that the police acted lawfully and that the pre-trial identification was non-suggestive (People v. Chipp, 75 NY2d 327 (1990)); People v. Ortiz, 90 NY2d 533 (1997). 1) To meet this burden the prosecution is not required to call the identifying witness, and can call the police officer who conducted the identification. People v. Brown, 111 AD2d 928 (2d Dept. 1985)). f) Once the prosecution goes forward, the defense has the burden, by a fair preponderance of the evidence to prove that the 16

27 pre-trial identification was unduly suggestive (People v. Jackson, 161 Misc.45 (Sup. Ct., Bronx Co., 1994)); People v. Chipp, 75 NY2d 327 (1990). 1) The defendant does not have the right to call the identifying witness unless the defense can make an offer of proof that the witness might fill a material gap in the police officer s narrative or that the witness account differs from the narrative (People v. Chipp, 75 NY2d 327 (1990)). g) Once the defense establishes that the pre-trial identification was unduly suggestive, the prosecution must prove, by clear and convincing evidence that there was an independent source for the identification. (People v. Ballot, 20 NY2d 600 (1967)); People v. Rahming, 26 NY2d 411 (1970)). The prosecution s purpose in doing so is to establish the admissibility of the in-court identification. 1) In order to establish independent source, the People must call the identifying witness to prove subjective facts known to that witness. (People v. Riley, 70 NY2d 523 (1987)). h) The People are expected to maintain a record of the identification procedure and a failure to retain the photographs used or a picture of the lineup creates a presumption of suggestiveness. (People v. Brennan, 222 AD2d 445 (2d Dept. 1995)). 1) The presumption may be rebutted by evidence detailing what the photographs would have demonstrated. (People v. Brennan, supra). 17

28 i) A suppression court should resolve both the issue of the prior identification as well as the admissibility of the in-court identification. 1) If a suppression court rules that there was no suggestiveness and then fails to address the issue of the in-court identification, should an appellate court reverse the ruling on suggestiveness, a new trial must be ordered (preceded by a new independent source hearing, unless the admission of the witness entire identification evidence was harmless error. (People v. Burts, 78 NY2d 20 (1991)). j) When the defendant s claim is that the right to counsel had attached, the defendant has the burden of proof as to the facts essential to that claim. (People v. Green, 188 AD2d 385 (1 st Dept. 1992)). 18

29 4) The Court s Ruling a) The suppression court must state on the record its finding of fact, conclusions of law and the reasons for its determination. (CPL (6)). b) The ruling must be made prior to jury selection (CPL (3)). c) Defendant has the right to a transcript of the hearing prior to the commencement of a trial provided the request is made before the hearing concludes. (People v. Sanders, 31 NY2d 463 (1973)). d) A ruling suppressing identification at trial is different from a preclusion order that prevents the People from introducing identification evidence because of the People s failure to serve proper notice of the evidence. (CPL (3)). 1) The People may appeal a suppression ruling but may not appeal a preclusion order (CPL ). People v. Laing, 79 NY2d 166 (1992). D) Other Pre-Trial Hearings 1) Alfinito Hearing (also called Franks hearing) Challenges veracity of affidavit in support of search warrant. (People v. Alfinito, 16 NY2d 181 (1965); Franks v. Delaware, 438 US 154 (1978)) 2) Darden Hearing In camera examination of confidential informant to establish probable cause (People v. Darden, 34 NY2d 177 (1974)) 3) Dunaway Hearing Whether evidence should be suppressed because defendant was placed in custodial detention on less 19

30 than probable cause. (Dunaway v. New York, 442 US 200 (1979)) 4) Forman Hearing Defendant challenges an order of protection that directs him to leave premises (People v. Forman, 145 Misc.2d 115 (NY Crim Ct 1989)) 5) Frye Hearing Court must rule on the admissibility of scientific evidence (still held in New York courts but superceded in federal courts by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579 (1993) (Frye v. U.S., 293 F (1923)) 6) Gomberg Hearing Court s examination of defense counsel s conflict in representing more than one defendant (People v. Gomberg, 38 NY2d 307 (1975)) 7) Hinton Hearing Hearing to rule on courtroom closure (People v. Hinton, 31 NY2d 71 (1972)) 8) Martin Hearing - Admissibility of a defendant s refusal to take a breathalyzer test (People v. Martin, 143 Misc2d 341 (1989)) 9) Pringle Hearing Hearing conducted prior to conclusion of arraignment to determine whether a suspension of a driver s license would constitute a hardship (Pringle v. Wolfe, 88 NY2d 426 (1996)) 10) Rodriguez Hearing pre-wade hearing to determine whether defendant was known to the identifying witness, rendering a Wade hearing unnecessary (People v. Rodriguez, 79 NY2d 445 (1992)) 11) Sandoval Hearing Use of defendant s prior convictions for impeachment purposes (People v. Sandoval, 34 NY2d 371 (1974)) 20

31 12) Sirois Hearing (also Mastrangelo Hearing) Whether grand jury testimony should be admitted because defendant caused the unavailability of a witness (Holtzman v. Hellebrand, 92 AD2d 405 (2d Dept. 1983); U.S. v. Mastrangelo, 693 F2d 269 (2d Cir 1982)) 13) Ventimiglia Hearing Admissibility of prior similar acts or crimes by defendant as part of prosecution s direct case (People v. Ventimiglia, 52 NY2d 350 (1981)) 14) Parker Hearing People v. Parker, 57 NY2d ) Severance Motion - CPL , ) Bruton issue Bruton v. U.S., 391 US 123 (1968) 2) Antagonistic defenses People v. Mahboubian, 74 NY2d 174 (1989) 12) Youthful Offender - CPL 720 People v. Drayton, 39 NY2d 580 (1976) 13) Juvenile Offender - CPL 1.20(42) 14) Fitness to Proceed - Article 730 CPL Incapacitated Person - CPL (1) - A defendant who, as a result of mental disease or defect, lacks capacity to 1) understand the proceeding against him; or 2) assist in his own defense 15) Defendant s right to be present at critical stages of a trial 21

32 16) Jury Selection a) Pre-trial hearings 1) Sandoval - People v. Dokes, 79 NY2d 656 (1992) 2) Ventimiglia - People v. Spotford, 85 NY2d 593 (1998) b) Jury Selection People v. Antommarchi, 80 NY2d 247 (1992) c) Closing the Courtroom People v. Hinton, 31 NY2d 71 a) Voir Dire People v. Jean, 75 NY2d 744 (1989) b) Challenge for Cause - CPL , c) Peremptory Challenge - CPL Batson v. Kentucky, 476 US 79 (1986) J.E.B. Alabama ex rel T.B. 511 US 127 (1994) People v. Garcia, 217 AD2d 119 (2d Dept. 1995) (black females People v. Kein, 75 NY2d 638 (1990) 1) Batson Challenge a) A prima facie showing of discrimination b) The race neutral explanation c) The issue of whether the explanation is pretextual 22

33 17) Removal of Sworn Jurors - CPL a) Grossly unqualified People v. Buford, 69 NY2d 290 (1987) b) Unavailable for continued service - CPL (2) 18) Preliminary Instruction - CPL ) Opening Statement - CPL (3)(4) 20) Objections by defense counsel must sufficiently preserve error People v. Balls, 69 NY2d 641 (1988) 21) Trial Order of Dismissal - end of People s Case - CPL ) Defendant s Case a) Alibi - PL (1), CPL b) Justiftication - PL c) Agency People v. Roche, 45 NY2d 78 (1978) d) Intoxication - PL e) Affirmative Defenses - PL ) Not responsible - PL 40.15, CPL ) Extreme Emotional Difference 3) Entrapment - PL

34 4) Duress - PL ) Renunciation - PL ) Motion for Trial Order of Dismissal - end of entire case - CPL ) Pre-Charge Conference - CPL ) Summation 26) Court s Charge - CPL 300 a) Must be oral b) Written notations or instructions - CPL (2) c) Jury Note Taking People v. Tucker, 77 NY2d 861 (1991) 27) Jury Deliberations a) Jurors must be kept together - CPL People v. Coons, 75 NY2d 796 (1990) b) Alternate jurors cannot converse with regular jurors c) Jurors can go home with consent of defendant People v. Webb, 78 NY2d 335 (1991) 28) Response to Jury Note a) Timing of response People v. Aleman, 12 NY2d 806 (2009) 24

35 b) Nature of response People v. Greene, 75 NY2d 875 (1990) c) Notice to counsel - CPL People v. O Rama, 78 NY2d 270 (1991) 29) Allen Charge Allen v. U.S., 164 US 492 (1896) 30) The Verdict - CPL a) Repugnant Verdicts People v. Green, 71 NY2d 1006 (1988) b) Partial Verdicts - CPL ) Polling the Jury 32) Mistrial - Deadlocked Jury Matter of Plummer v. Rothwax, 63 NY2d 243 (1984) 33) Motion to Set Aside Verdict - CPL a) Grounds which require reversal upon appeal b) Improper Jury Conduct c) Newly discovered evidence People v. Salemi, 39 NY2d 208 (1955) 34) Sentencing a) Requirement of Pre-Sentence Report - CPL b) Victim s Impact Statement - CPL (2)(b) 25

36 c) Cruel and Unusual Punishment People v. Thompson, 83 NY2d 477 (1994) d) Sentence of Probation - CPL 410 e) Sentence of Imprisonment 1) First felony offender - PL ) Second felony offender - PL ) Persistent felony offender - PL ) Persistent violent felony offender - PL ) Post Judgment Proceedings a) Judgment of Not Responsible by Reason of Mental Disease or Defect - CPL ) Orders of Conditions 2) Retention Hearing b) Motion to Vacate Judgment - CPL 440 c) Writ of Habeas Corpus People v. Bachert, 69 NY2d 593 (1987) d) Bail Pending Appeal - CPL , , ) Appeals - CPL 450, 460, 470 a) Intermediate Appellate Courts 26

37 1) Appealability 2) Reviewability 3) Verdict against the weight of evidence People v. Bleakely, 69 NY2d 490 (1987) b) Court of Appeals 1) Appealability 2) Reviewability a) Preservation People v. Balls, 69 NY2d 641 (1986) b) Questions of Law 27

38

39 BRIDGE THE GAP Matrimonial Law August 9, 2013 Briana Denney, Esq. THE PATHS TO OBTAINING A JUDGMENT OF DIVORCE OR ANNULMENT 1. Uncontested: Parties either have reached an agreement or a party has not appeared and there is no property, etc. to divide. All paperwork is submitted to the Supreme Court and processed. No court appearance is required. The divorce forms can be found at: 2. Contested: Parties are unable to reach an agreement and one, or several, issues must be brought before the Court. Or, a party defaults and the Court must take testimony or a motion must be filed in order to address property and other issues which need to be resolved. A request for judicial intervention is filed and the case is placed on the Court calendar. a. If the parties resolve the dispute(s) prior to trial, an agreement is submitted with the divorce forms. (Some judges also require that an inquest and allocution be completed). b. If the parties are unable to resolve the dispute, the disputed areas are sent to trial and the Court issues a decision. Some of the forms that are required for uncontested divorces are required to be submitted: check with the clerk of each county s Matrimonial Support office for requirements. ANNULMENT (and Declaration of Nullity of Void Marriage) DRL Sections Grounds Defenses Right to Jury Trial Three (3) year statute of limitations if ground is fraud (CPLR 214(7))

40 GROUNDS FOR DIVORCE Effect of ground for divorce alleged upon economics of the divorce None, except in regards to egregious fault, which impacts economic distribution and permits discovery as to grounds See, e.g., Howard S. v. Lillian S., 62 AD3d 187 (1st Dept. 2009) (Husband s allegations did not rise to the level of egregious fault, but history of cases which have constituted egregious fault are discussed.) McKinney's DRL Action for divorce An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds: (1) The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental wellbeing of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant. (2) The abandonment of the plaintiff by the defendant for a period of one or more years. (3) The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant. (4) The commission of an act of adultery, provided that adultery for the purposes of articles ten, eleven, and eleven-a of this chapter, is hereby defined as the commission of an act of sexual intercourse, oral sexual conduct or anal sexual conduct, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant. Oral sexual conduct and anal sexual conduct include, but are not limited to, sexual conduct as defined in subdivision two of section and subdivision three of section of the penal law. (5) The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment. (6) The husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. Such agreement shall be filed in the office of the clerk of the county wherein either party resides. In lieu of filing such agreement, either party to such agreement may file a memorandum of such agreement, which memorandum shall be similarly subscribed and acknowledged or proved as was the agreement of separation and shall contain the following information: (a) the names and addresses of each of the parties, (b) the date of marriage of the parties, (c) the date of the agreement of separation and (d) the date of this subscription and acknowledgment or proof of such agreement of separation. 2

41 (7) The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. No judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce. Defenses to Grounds for Divorce 1. DRL 171: applicable to adultery 2. DRL 210: five (5) year statute of limitations if ground is cruel and inhuman treatment or confinement to prison for 3 or more years (applies to certain grounds for Separation also) Right to Jury Trial DRL 173: In an action for divorce there is a right to trial by jury of the issues of the grounds for granting the divorce. Defenses and Right to Jury Trial Regarding Irretrievable Breakdown The Appellate Division has yet to rule on these issues. The majority of the trial court decisions state that there is no right to a jury trial and no defenses. Holding no right to jury trial: Williams v. Robins, NYLJ (Sup Ct. NY Co., 2012) ( There are no triable issues of fact with regard to irretrievable breakdown. ); several other trial courts have also ruled there is no right to a jury trial or a trial on this ground, which cases are cited in this opinion. Holding there is a right to jury trial: Strack v. Strack, 31 Misc.3d 258 (Sup. Ct. Essex Co., 2011), and Schiffer v. Schiffer, 33 Misc.3d 795 (Sup. Ct. Dutchess Co. 2011) (DRL 170(7) is subject to the trial requirement of DRL 173). 3

42 SEPARATION DRL Defenses DRL 202: justification DRL 210: five (5) year statute of limitations if ground is cruel and inhuman treatment or neglect or refusal to provide support (applies to certain grounds for divorce also) DRL 203: judgment of separation may be revoked by issuing court upon joint application of parties with proof of reconciliation DISSOLUTION OF MARRIAGE ON GROUND OF ABSENCE DRL ( Enoch Arden Law): Basis is belief that spouse is dead Special proceeding, not an action, required (CPLR Article 4) 4

43 1. Must be Verified: DRL 211 PLEADINGS IN MATRIMONIAL ACTIONS McKinney's DRL Pleadings, proof and motions A matrimonial action shall be commenced by the filing of a summons with the notice designated in section two hundred thirty-two of this chapter, or a summons and verified complaint as provided in section three hundred four of the civil practice law and rules. A final judgment shall be entered by default for want of appearance or pleading, or by consent, only upon competent oral proof or upon written proof that may be considered on a motion for summary judgment. Where a complaint or counterclaim in an action for divorce or separation charges adultery, the answer or reply thereto may be made without verifying it, except that an answer containing a counterclaim must be verified as to that counterclaim. All other pleadings in a matrimonial action shall be verified. 2. Summons Must Contain Language as Specified: DRL 232 McKinney's DRL Notice of nature of matrimonial action; proof of service a. In an action to annul a marriage or for divorce or for separation, if the complaint is not personally served with the summons, the summons shall have legibly written or printed upon the face thereof: Action to annul a marriage, Action to declare the nullity of a void marriage, Action for a divorce, or Action for a separation, as the case may be, and shall specify the nature of any ancillary relief demanded. A judgment shall not be rendered in favor of the plaintiff upon the defendant's default in appearing or pleading, unless either (1) the summons and a copy of the complaint were personally delivered to the defendant; or (2) the copy of the summons (a) personally delivered to the defendant, or (b) served on the defendant pursuant to an order directing the method of service of the summons in accordance with the provisions of section three hundred eight or three hundred fifteen of the civil practice law and rules, shall contain such notice. b. An affidavit or certificate proving service shall state affirmatively in the body thereof that the required notice was written or printed on the face of the copy of the summons delivered to the defendant and what knowledge the affiant or officer who executed the certificate had that he was the defendant named and how he acquired such knowledge. The court may require the affiant or officer who executed the affidavit or certificate to appear in court and be examined in respect thereto. 5

44 SUMMONS MUST CONTAIN THE FOLLOWING NOTICES 1. DRL 236(B)(2)(b): Automatic Orders With respect to matrimonial actions which commence on or after the effective date of this paragraph, the plaintiff shall cause to be served upon the defendant, simultaneous with the service of the summons, a copy of the automatic orders set forth in this paragraph. The automatic orders shall be binding upon the plaintiff in a matrimonial action immediately upon the filing of the summons, or summons and complaint, and upon the defendant immediately upon the service of the automatic orders with the summons. The automatic orders shall remain in full force and effect during the pendency of the action, unless terminated, modified or amended by further order of the court upon motion of either of the parties or upon written agreement between the parties duly executed and acknowledged. The automatic orders are as follows: (1) Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, 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 this action. (2) Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of any tax deferred funds, stocks or other assets held in any individual retirement accounts, 401K accounts, profit sharing plans, Keogh accounts, or any other pension or retirement account, and the parties shall 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 in writing, or upon further order of the court; except that any party who is already in pay status may continue to receive such payments thereunder. (3) Neither party shall incur unreasonable debts hereafter, including, but not limited to further borrowing against any credit line secured by the family residence, further encumbrancing 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 this action. (4) Neither party shall cause the other party or the children of the marriage to be removed from any existing medical, hospital and dental insurance coverage, and each party shall maintain the existing medical, hospital and dental insurance coverage in full force and effect. (5) Neither party shall change the beneficiaries of any existing life insurance policies, and each party shall maintain the existing life insurance, automobile insurance, homeowners and renters insurance policies in full force and effect. *New as of January 30, 2013 the Summons must also contain the following language:* (NYCRR a) (6) These automatic orders shall remain in full force and effect during the pendency of the action unless terminated, modified or amended by further order of the court or upon written agreement between the parties. (7) The failure to obey these automatic orders may be deemed a contempt of court. 6

45 2. DRL 255(1): Notice regarding health care coverage Both parties have been notified, at such time and by such means as the court shall determine, that once the judgment is signed, a party thereto may or may not be eligible to be covered under the other party's health insurance plan, depending on the terms of the plan. Provided, however, service upon the defendant, simultaneous with the service of the summons, of a notice indicating that once the judgment is signed, a party thereto may or may not be eligible to be covered under the other party's health insurance plan, depending on the terms of the plan, shall be deemed sufficient notice to a defaulting defendant. OBTAINING JURISDICTION; METHODS OF SERVICE DRL CPLR 308, 309, 312-a, Personal service required unless not possible All other methods require court order, which requires motion (e.g., Hollow v. Hollow, 193 Misc.2d 691, (Sup. Ct., Oswego Co. 2002) (service by permitted under CPLR 308(5) combined with international registered airmail and international standard mail) RESIDENCY REQUIREMENTS (Remember, residence does not equal domicile) McKinney's DRL Required residence of parties An action to annul a marriage, or to declare the nullity of a void marriage, or for divorce or separation may be maintained only when: 1. The parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or 2. The parties have resided in this state as husband and wife and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or 3. The cause occurred in the state and either party has been a resident thereof for a continuous period of at least one year immediately preceding the commencement of the action, or 4. The cause occurred in the state and both parties are residents thereof at the time of the commencement of the action, or 5. Either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action. 7

46 DISCLOSURE Governed by the CPLR, but specific matrimonial requirements are set out in the DRL and 22 NYCRR Section Matrimonial actions; calendar control of financial disclosure in actions and proceedings involving alimony, maintenance, child support and equitable distribution; motions for alimony, counsel fees pendente lite,and child support; special rules. (a) Applicability. This section shall be applicable to all contested actions and proceedings in the Supreme Court in which statements of net worth are required by section 236 of the Domestic Relations Law to be filed and in which a judicial determination may be made with respect to alimony, counsel fees, pendente lite, maintenance, custody and visitation, child support, or the equitable distribution of property, including those referred to Family Court by the Supreme Court pursuant to section 464 of the Family Court Act. (b) Form of Statements of Net Worth. Sworn statements of net worth, except as provided in subdivision (k) of this section, exchanged and filed with the court pursuant to section 236 of the Domestic Relations Law, shall be in substantial compliance with the Statement of Net Worth form contained in Chapter III, Subchapter A of Subtitle D (Forms) of this Title. (c) Retainer Agreements (1) A signed copy of the attorney's retainer agreement with the client shall accompany the statement of net worth filed with the court, and the court shall examine the agreement to assure that it conforms to Appellate Division attorney conduct and disciplinary rules. Where substitution of counsel occurs after the filing with the court of the net worth statement, a signed copy of the attorney's retainer agreement shall be filed with the court within 10 days of its execution. (2) An attorney seeking to obtain an interest in any property of his or her client to secure payment of the attorney's fee shall make application to the court for approval of said interest on notice to the client and to his or her adversary. The application may be granted only after the court reviews the finances of the parties and an application for attorney's fees. (d) Request for Judicial Intervention. A request for judicial intervention shall be filed with the court by the plaintiff no later than 45 days from the date of service of the summons and complaint or summons with notice upon the defendant, unless both parties file a notice of no necessity with the court, in which event the request for judicial intervention may be filed no later than 120 days from the date of service of 8

47 the summons and complaint or summons with notice upon the defendant. Notwithstanding section 202.6(a) of this Part, the court shall accept a request for judicial intervention that is not accompanied by other papers to be filed in court. (e) Certification. Every paper served on another party or filed or submitted to the court in a matrimonial action shall be signed as provided in section a of this Title. (f) Preliminary Conference. (1) In all actions or proceedings to which this section of the rules is applicable, a preliminary conference shall be ordered by the court to be held within 45 days after the action has been assigned. Such order shall set the time and date for the conference and shall specify the papers that shall be exchanged between the parties. These papers must be exchanged no later than 10 days prior to the preliminary conference, unless the court directs otherwise. These papers shall include: (i) statements of net worth, which also shall be filed with the court no later than 10 days prior to the preliminary conference; (ii) all paycheck stubs for the current calendar year and the last paycheck stub for the immediately preceding calendar year; (iii) all filed State and Federal income tax returns for the previous three years, including both personal returns and returns filed on behalf of any partnership or closely held corporation of which the party is a partner or shareholder; (iv) all W-2 wage and tax statements, 1099 forms, and K-1 forms for any year in the past three years in which the party did not file State and Federal income tax returns; (v) all statements of accounts received during the past three years from each financial institution in which the party has maintained any account in which cash or securities are held; (vi) the statements immediately preceding and following the date of commencement of the matrimonial action pertaining to: (a) any policy of life insurance having a cash or dividend surrender value; and (b) any deferred compensation plan of any type or nature in which the party has an interest including, but not limited to, Individual Retirement Accounts, pensions, profit- sharing plans, Keogh plans, 401(k) plans and other retirement plans. Both parties personally must be present in court at the time of the conference, and the judge 9

48 personally shall address the parties at some time during the conference. (2) The matters to be considered at the conference may include, among other things: (i) applications for pendente lite relief, including interim counsel fees; (ii) compliance with the requirement of compulsory financial disclosure, including the exchange and filing of a supplemental statement of net worth indicating material changes in any previously exchanged and filed statement of net worth; (iii) simplification and limitation of the issues; (iv) the establishment of a timetable for the completion of all disclosure proceedings, provided that all such procedures must be completed and the note of issue filed within six months from the commencement of the conference, unless otherwise shortened or extended by the court depending upon the circumstances of the case; (v) the completion of a preliminary conference order substantially in the form contained in Appendix "G " to these rules, with attachments; and (vi) any other matters which the court shall deem appropriate. (3) At the close of the conference, the court shall direct the parties to stipulate, in writing or on the record, as to all resolved issues, which the court then shall "so order," and as to all issues with respect to fault, custody and finance that remain unresolved. Any issues with respect to fault, custody and finance that are not specifically described in writing or on the record at that time may not be raised in the action unless good cause is shown. The court shall fix a schedule for discovery as to all unresolved issues and, in a noncomplex case, shall schedule a date for trial not later than six months from the date of the conference. The court may appoint an attorney for the infant children, or may direct the parties to file with the court, within 30 days of the conference, a list of suitable attorneys for children for selection by the court. The court also may direct that a list of expert witnesses be filed with the court within 30 days of the conference from which the court may select a neutral expert to assist the court. The court shall schedule a compliance conference unless the court dispenses with the conference based upon a stipulation of compliance filed by the parties. Unless the court excuses their presence, the parties personally must be present in court at the time of the compliance conference. If the parties are present in court, the judge personally shall address them at some time during the conference. (g) Expert Witnesses. (1) Responses to demands for expert information pursuant to CPLR section 3101(d) shall be served within 20 days following service of such demands. (2) Each expert witness whom a party expects to call at the trial shall file with the court a 10

49 written report, which shall be exchanged and filed with the court no later than 60 days before the date set for trial, and reply reports, if any, shall be exchanged and filed no later than 30 days before such date. Failure to file with the court a report in conformance with these requirements may, in the court's discretion, preclude the use of the expert. Except for good cause shown, the reports exchanged between the parties shall be the only reports admissable at trial. Late retention of experts and consequent late submission of reports shall be permitted only upon a showing of good cause as authorized by CPLR 3101(d)(1)(i). In the discretion of the court, written reports may be used to substitute for direct testimony at the trial, but the reports shall be submitted by the expert under oath, and the expert shall be present and available for crossexamination. In the discretion of the court, in a proper case, parties may be bound by the expert's report in their direct case. (h) Statement of Proposed Disposition. (1) Each party shall exchange a statement setting forth the following: (i) the assets claimed to be marital property; (ii) the assets claimed to be separate property; (iii) an allocation of debts or liabilities to specific marital or separate assets, where appropriate; (iv) the amount requested for maintenance, indicating and elaborating upon the statutory factors forming the basis for the maintenance request; (v) the proposal for equitable distribution, where appropriate, indicating and elaborating upon the statutory factors forming the basis for the proposed distribution; (vi) the proposal for a distributive award, if requested, including a showing of the need for a distributive award; (vii) the proposed plan for child support, indicating and elaborating upon the statutory factors upon which the proposal is based; and (viii) the proposed plan for custody and visitation of any children involved in the proceeding, setting forth the reasons therefor. (2) A copy of any written agreement entered into by the parties relating to financial arrangements or custody or visitation shall be annexed to the statement referred to in paragraph (1) of this subdivision. (3) The statement referred to in paragraph (1) of this subdivision, with proof of service upon the other party, shall, with the note of issue, be filed with the court. The other party, if he or she has not already done so, shall file with the court a statement complying with paragraph (1) of 11

50 this subdivision within 20 days of such service. (i) Filing of Note of Issue. No action or proceeding to which this section is applicable shall be deemed ready for trial unless there is compliance with this section by the party filing the note of issue and certificate of readiness. (j) Referral to Family Court. In all actions or proceedings to which this section is applicable referred to the Family Court by the Supreme Court pursuant to section 464 of the Family Court Act, all statements, including supplemental statements, exchanged and filed by the parties pursuant to this section shall be transmitted to the Family Court with the order of referral. (k) Motions for Alimony, Maintenance, Counsel Fees Pendente Lite and Child support (other than under section 237(c) or 238 of the Domestic Relations Law). Unless, on application made to the court, the requirements of this subdivision be waived for good cause shown, or unless otherwise expressly provided by any provision of the CPLR or other statute, the following requirements shall govern motions for alimony, maintenance, counsel fees (other than a motion made pursuant to section 237(c) or 238 of the Domestic Relations Law for counsel fees for services rendered by an attorney to secure the enforcement of a previously granted order or decree) or child support or any modification of an award thereof: (1) Such motion shall be made before or at the preliminary conference, if practicable. (2) No motion shall be heard unless the moving papers include a statement of net worth in the official form prescribed by subdivision (b) of this section. (3) No motion for counsel fees and expenses shall be heard unless the moving papers also include the affidavit of the movant's attorney stating the moneys, if any, received on account of such attorney's fee from the movant or any other person on behalf of the movant, the hourly amount charged by the attorney, the amounts paid, or to be paid, to counsel and any experts, and any additional costs, disbursements or expenses, and the moneys such attorney has been promised by, or the agreement made with, the movant or other persons on behalf of the movant, concerning or in payment of the fee. Fees and expenses of experts shall include appraisal, accounting, actuarial, investigative and other fees and expenses to enable a spouse to carry on or defend a matrimonial action or proceeding in the Supreme Court. (4) The party opposing any motion shall be deemed to have admitted, for the purpose of the motion but not otherwise, such facts set forth in the moving party's statement of net worth as are not controverted in: 12

51 (i) a statement of net worth, in the official form prescribed by this section, completed and sworn to by the opposing party, and made a part of the answering papers; or (ii) other sworn statements or affidavits with respect to any fact which is not feasible to controvert in the opposing party's statement of net worth. (5) The failure to comply with the provisions of this subdivision shall be good cause, in the discretion of the judge presiding, either: (i) to draw an inference favorable to the adverse party with respect to any disputed fact or issue affected by such failure; or (ii) to deny the motion without prejudice to renewal upon compliance with the provisions of this section. (6) The notice of motion submitted with any motion for or related to interim maintenance or child support shall contain a notation indicating the nature of the motion. Any such motion shall be determined within 30 days after the motion is submitted for decision. (7) Upon any application for an award of counsel fees or fees and expenses of experts made prior to the conclusion of the trial of the action, the court shall set forth in specific detail, in writing or on the record, the factors it considered and the reasons for its decision. (l) Hearings or trials pertaining to temporary or permanent custody or visitation shall proceed from day to day conclusion. With respect to other issues before the court, to the extent feasible, trial should proceed from day to day to conclusion. Section a Matrimonial Actions; Automatic Orders (a) Applicability. This section shall be applicable to all matrimonial actions and proceedings in the Supreme Court authorized by section 236(2) of the Domestic Relations Law. (b) Service. The plaintiff in a matrimonial action shall cause to be served upon the defendant, simultaneous with the service of the summons, a copy of the automatic orders set forth in this section in a notice that substantially conforms to the notice contained in Appendix F. The notice shall state legibly on its face that automatic orders have been entered against the parties named in the summons or in the summons and complaint pursuant to this rule, and that failure to comply with these orders may be deemed a contempt of court. The automatic orders shall be binding upon the plaintiff immediately upon filing of the summons, or summons and complaint, and upon the defendant immediately upon service of the automatic orders with the summons. The orders shall remain in full force and effect during the pendency of the action unless terminated, modified or amended by further order of the court or upon written agreement between the parties. 13

52 (c) Automatic Orders. The automatic orders served with the summons shall provide as follows: Upon service of the summons in every matrimonial action, it is hereby ordered that: (1) Neither part shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, 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 this action. (2) Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of any tax deferred funds, stocks or other assets held in any individual retirement accounts, 401K accounts, profit sharing plans, Keogh accounts, or any other pension or retirement account, and the parties shall 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 in writing, or upon further order of the court, except that any party who is already in pay status may continue to receive such payments thereunder. (3) Neither party shall incur unreasonable debts hereafter, including but not limited to further borrowing against any credit line secured by the family residence, further encumbrancing 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 this action. (4) Neither party shall cause the other party or the children of the marriage to be removed from any existing medical, hospital and dental insurance coverage, and each party shall maintain the existing medical, hospital and dental insurance coverage in full force and effect. (5) Neither party shall change the beneficiaries of any existing life insurance policies, and each party shall maintain the existing life insurance, automobile insurance, homeowners and renters insurance policies in full force and effect. (6) These automatic orders shall remain in full force and effect during the pendency of the action unless terminated, modified or amended by further order of the court or upon written agreement between the parties. (7) The failure to obey these automatic orders may be deemed a contempt of court. Note: there is no discovery regarding grounds or child custody and visitation in the First or Second Departments (unless the grounds rise to the level of egregious conduct, for which there is discovery). There is discovery regarding grounds and child custody and visitation in the Third and Fourth Departments. 14

53 DRL 236(B)(4) 4. Compulsory financial disclosure. a. In all matrimonial actions and proceedings in which alimony, maintenance or support is in issue, there shall be compulsory disclosure by both parties of their respective financial states. No showing of special circumstances shall be required before such disclosure is ordered. A sworn statement of net worth shall be provided upon receipt of a notice in writing demanding the same, within twenty days after the receipt thereof. In the event said statement is not demanded, it shall be filed with the clerk of the court by each party, within ten days after joinder of issue, in the court in which the proceeding is pending. As used in this part, the term net worth shall mean the amount by which total assets including income exceed total liabilities including fixed financial obligations. It shall include all income and assets of whatsoever kind and nature and wherever situated and shall include a list of all assets transferred in any manner during the preceding three years, or the length of the marriage, whichever is shorter; provided, however that transfers in the routine course of business which resulted in an exchange of assets of substantially equivalent value need not be specifically disclosed where such assets are otherwise identified in the statement of net worth. All such sworn statements of net worth shall be accompanied by a current and representative paycheck stub and the most recently filed state and federal income tax returns including a copy of the W-2(s) wage and tax statement(s) submitted with the returns. In addition, both parties shall provide information relating to any and all group health plans available to them for the provision of care or other medical benefits by insurance or otherwise for the benefit of the child or children for whom support is sought, including all such information as may be required to be included in a qualified medical child support order as defined in section six hundred nine of the employee retirement income security act of 1974 (29 USC 1169) including, but not limited to: (i) the name and last known mailing address of each party and of each dependent to be covered by the order; (ii) the identification and a description of each group health plan available for the benefit or coverage of the disclosing party and the child or children for whom support is sought; (iii) a detailed description of the type of coverage available from each group health plan for the potential benefit of each such dependent; (iv) the identification of the plan administrator for each such group health plan and the address of such administrator; (v) the identification numbers for each such group health plan; and (vi) such other information as may be required by the court. Noncompliance shall be punishable by any or all of the penalties prescribed in section thirty-one hundred twenty-six of the civil practice law and rules, in examination before or during trial. 15

54 CUSTODY AND VISITATION 1. Governed by DRL 240: standard of best interests of the child 2. There is no presumption of joint custody: The Court cannot order joint custody when the parties have a demonstrated inability to cooperate on matters concerning the children. (See, e.g., Matter of Solovay v. Solovay, 94 AD3d 898 (2d Dept. 2012). 3. Factors considered in making a custody and/or visitation award: a. The effect of domestic violence upon the child (DRL 240) b. Which parent has acted as the primary caretaker for the child. c. The ability of each parent to provide for the child's emotional and intellectual development, the quality of the home environment, and the parental guidance to be provided. d. The mental health of the parent. e. A parent s conduct, stability, lifestyle, morality, financial status, professional achievements, and personal associations are relevant in assessing parental fitness. f. Past parental performance. g. The availability of the parents to care for the children. h. A parent s ability to foster the child s relationship with the other parent. McKinney's DRL Custody and child support; orders of protection 1. (a) In any action or proceeding brought (1) to annul a marriage or to declare the nullity of a void marriage, or (2) for a separation, or (3) for a divorce, or (4) to obtain, by a writ of habeas corpus or by petition and order to show cause, the custody of or right to visitation with any child of a marriage, the court shall require verification of the status of any child of the marriage with respect to such child's custody and support, including any prior orders, and shall enter orders for custody and support as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child and subject to the provisions of subdivision one-c of this section. Where either party to an action concerning custody of or a right to visitation with a child alleges in a sworn petition or complaint or sworn answer, cross-petition, counterclaim or other sworn responsive pleading that the other party has committed an act of domestic violence against the party making the allegation or a family or household member of either party, as such family or household member is defined in article eight of the family court act, and such allegations are proven by a preponderance of the evidence, the court must consider the effect of such domestic violence upon the best interests of the child, together with such other facts and circumstances as the court deems relevant in making a direction pursuant to this section and state on the record how such findings, facts and circumstances factored into the direction. If a parent makes a good faith allegation based on a reasonable belief supported by facts that the child is the victim of child abuse, child neglect, or the effects of domestic violence, and if that parent acts lawfully and in good faith in response to that reasonable belief to protect the child or seek treatment for the child, then that parent shall not be deprived of custody, visitation or contact with the child, or restricted in custody, visitation or 16

55 contact, based solely on that belief or the reasonable actions taken based on that belief. If an allegation that a child is abused is supported by a preponderance of the evidence, then the court shall consider such evidence of abuse in determining the visitation arrangement that is in the best interest of the child, and the court shall not place a child in the custody of a parent who presents a substantial risk of harm to that child, and shall state on the record how such findings were factored into the determination. An order directing the payment of child support shall contain the social security numbers of the named parties. In all cases there shall be no prima facie right to the custody of the child in either parent. Such direction shall make provision for child support out of the property of either or both parents. The court shall make its award for child support pursuant to subdivision one-b of this section. Such direction may provide for reasonable visitation rights to the maternal and/or paternal grandparents of any child of the parties. Such direction as it applies to rights of visitation with a child remanded or placed in the care of a person, official, agency or institution pursuant to article ten of the family court act, or pursuant to an instrument approved under section three hundred fifty-eight-a of the social services law, shall be enforceable pursuant to part eight of article ten of the family court act and sections three hundred fifty-eight-a and three hundred eighty-four-a of the social services law and other applicable provisions of law against any person having care and custody, or temporary care and custody, of the child. Notwithstanding any other provision of law, any written application or motion to the court for the establishment, modification or enforcement of a child support obligation for persons not in receipt of public assistance and care must contain either a request for child support enforcement services which would authorize the collection of the support obligation by the immediate issuance of an income execution for support enforcement as provided for by this chapter, completed in the manner specified in section one hundred eleven-g of the social services law; or a statement that the applicant has applied for or is in receipt of such services; or a statement that the applicant knows of the availability of such services, has declined them at this time and where support enforcement services pursuant to section one hundred eleven-g of the social services law have been declined that the applicant understands that an income deduction order may be issued pursuant to subdivision (c) of section fifty-two hundred forty-two of the civil practice law and rules without other child support enforcement services and that payment of an administrative fee may be required. The court shall provide a copy of any such request for child support enforcement services to the support collection unit of the appropriate social services district any time it directs payments to be made to such support collection unit. Additionally, the copy of any such request shall be accompanied by the name, address and social security number of the parties; the date and place of the parties' marriage; the name and date of birth of the child or children; and the name and address of the employers and income payors of the party from whom child support is sought or from the party ordered to pay child support to the other party. Such direction may require the payment of a sum or sums of money either directly to the custodial parent or to third persons for goods or services furnished for such child, or for both payments to the custodial parent and to such third persons; provided, however, that unless the party seeking or receiving child support has applied for or is receiving such services, the court shall not direct such payments to be made to the support collection unit, as established in section one hundred eleven-h of the social services law. Every order directing the payment of support shall require that if either parent currently, or at any time in the future, has health insurance benefits available that may be extended or obtained to cover the child, such parent is required to exercise the option of additional coverage in favor of such child and execute and deliver to such person any forms, notices, documents or instruments 17

56 necessary to assure timely payment of any health insurance claims for such child. (a-1)(1) Permanent and initial temporary orders of custody or visitation. Prior to the issuance of any permanent or initial temporary order of custody or visitation, the court shall conduct a review of the decisions and reports listed in subparagraph three of this paragraph. (2) Successive temporary orders of custody or visitation. Prior to the issuance of any successive temporary order of custody or visitation, the court shall conduct a review of the decisions and reports listed in subparagraph three of this paragraph, unless such a review has been conducted within ninety days prior to the issuance of such order. (3) Decisions and reports for review. The court shall conduct a review of the following: (i) related decisions in court proceedings initiated pursuant to article ten of the family court act, and all warrants issued under the family court act; and (ii) reports of the statewide computerized registry of orders of protection established and maintained pursuant to section two hundred twenty-one-a of the executive law, and reports of the sex offender registry established and maintained pursuant to section one hundred sixty-eight-b of the correction law. (4) Notifying counsel and issuing orders. Upon consideration of decisions pursuant to article ten of the family court act, and registry reports and notifying counsel involved in the proceeding, or in the event of a self-represented party, notifying such party of the results thereof, including any court appointed attorney for children, the court may issue a temporary, successive temporary or final order of custody or visitation. (5) Temporary emergency order. Notwithstanding any other provision of the law, upon emergency situations, including computer malfunctions, to serve the best interest of the child, the court may issue a temporary emergency order for custody or visitation in the event that it is not possible to timely review decisions and reports on registries as required pursuant to subparagraph three of this paragraph. (6) After issuing a temporary emergency order. After issuing a temporary emergency order of custody or visitation, the court shall conduct reviews of the decisions and reports on registries as required pursuant to subparagraph three of this paragraph within twenty-four hours of the issuance of such temporary emergency order. Should such twenty-four hour period fall on a day when court is not in session, then the required reviews shall take place the next day the court is in session. Upon reviewing decisions and reports the court shall notify associated counsel, selfrepresented parties and attorneys for children pursuant to subparagraph four of this paragraph and may issue temporary or permanent custody or visitation orders. Relocation of the child and custodial parent Leading case: Tropea v. Tropea, 87 N.Y.2d 727 (1996): Each relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the 18

57 child. While the respective rights of the custodial and noncustodial parents are unquestionably significant factors that must be considered (see, Strahl v. Strahl, 66 A.D.2d 571, 414 N.Y.S.2d 184, affd 49 N.Y.2d 1036, 429 N.Y.S.2d 635, 407 N.E.2d 479, supra ), it is the rights and needs of the children that must be accorded the greatest weight, since they are innocent victims of their parents' decision to divorce and are the least equipped to handle the stresses of the changing family situation. 19

58 CHILD SUPPORT Child Support Standards Act (CSSA): DRL 240 Pendente lite (while the case is pending): The Court may apply the CSSA, but is not required to After trial: Must apply the CSSA Child support is awarded and paid to the custodial parent until age 21 in New York State. See annexed Child Support Worksheets for child support calculations (available at In addition to basic child support, the following are mandatory add-on s, additional expenses paid by each parent above and beyond the basic child support in proportion to each party s income: 1. Unreimbursed medical expenses (including the cost of covering the child or children on health insurance). 2. Childcare which entitles the custodial parent to work or complete education to obtain work. In addition to basic child support, the following are discretionary add-on s, additional expenses which the parties may agree to pay, or the Court may order each parent to pay: 1. Post-secondary, private, special, or enriched education for the child or children. 2. Childcare which entitles the custodial parent to seek employment. Agreements: Must strictly comply with the statutory language, including any deviation from the CSSA formula, or 1. Judgment may not be approved by the Court; 2. Agreement may be vacated years later. McKinney's DRL Custody and child support (only part of statute cited below) 1. (a) In any action or proceeding brought (1) to annul a marriage or to declare the nullity of a void marriage, or (2) for a separation, or (3) for a divorce, or (4) to obtain, by a writ of habeas corpus or by petition and order to show cause, the custody of or right to visitation with any child of a marriage, the court shall require verification of the status of any child of the marriage with respect to such child's custody and support, including any prior orders, and shall enter orders for custody and support as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child and subject to the provisions of subdivision one-c of this section. An order directing the payment of child support shall contain the social security numbers of the named parties. In all cases there shall be no prima facie right to the custody of the child in either parent. Such direction shall make provision for child support out of the property of either or both parents. The court shall make its award for child support pursuant to subdivision one-b of this section. (b) As used in this section, the following terms shall have the following meanings: (1) Health insurance benefits means any medical, dental, optical and prescription drugs and health care services or other health care benefits that may be provided for a dependent through an 20

59 employer or organization, including such employers or organizations which are self insured, or through other available health insurance or health care coverage plans. (2) Available health insurance benefits means any health insurance benefits that are reasonable in cost and that are reasonably accessible to the person on whose behalf the petition is brought. Health insurance benefits that are not reasonable in cost or whose services are not reasonably accessible to such person, shall be considered unavailable. (3) When the person on whose behalf the petition is brought is a child in accordance with paragraph (c) of this subdivision, health insurance benefits shall be considered reasonable in cost if the cost of health insurance benefits does not exceed five percent of the combined parental gross income. The cost of health insurance benefits shall refer to the cost of the premium and deductible attributable to adding the child or children to existing coverage or the difference between such costs for self-only and family coverage. Provided, however, the presumption that the health insurance benefits are reasonable in cost may be rebutted upon a finding that the cost is unjust or inappropriate which finding shall be based on the circumstances of the case, the cost and comprehensiveness of the health insurance benefits for which the child or children may otherwise be eligible, and the best interests of the child or children. In no instance shall health insurance benefits be considered reasonable in cost if a parent's share of the cost of extending such coverage would reduce the income of that parent below the selfsupport reserve. Health insurance benefits are reasonably accessible if the child lives within the geographic area covered by the plan or lives within thirty minutes or thirty miles of travel time from the child's residence to the services covered by the health insurance benefits or through benefits provided under a reciprocal agreement; provided, however, this presumption may be rebutted for good cause shown including, but not limited to, the special health needs of the child. The court shall set forth such finding and the reasons therefor in the order of support. (c) When the person on whose behalf the petition is brought is a child, the court shall consider the availability of health insurance benefits to all parties and shall take the following action to ensure that health insurance benefits are provided for the benefit of the child: (1) Where the child is presently covered by health insurance benefits, the court shall direct in the order of support that such coverage be maintained, unless either parent requests the court to make a direction for health insurance benefits coverage pursuant to paragraph two of this subdivision. (2) Where the child is not presently covered by health insurance benefits, the court shall make a determination as follows: (i) If only one parent has available health insurance benefits, the court shall direct in the order of support that such parent provide health insurance benefits. (ii) If both parents have available health insurance benefits the court shall direct in the order of support that either parent or both parents provide such health insurance. The court shall make such determination based on the circumstances of the case, including, but not limited to, the cost and comprehensiveness of the respective health insurance benefits and the best interests of the child. (iii) If neither parent has available health insurance benefits, the court shall direct in the order of support that the custodial parent apply for the state's child health insurance plan pursuant to title one-a of article twenty-five of the public health law and the medical assistance program established pursuant to title eleven of article five of the social services law. A direction issued under this subdivision shall not limit or alter either parent's obligation to obtain health insurance 21

60 benefits at such time as they become available, as required pursuant to paragraph (a) of this subdivision. Nothing in this subdivision shall alter or limit the authority of the medical assistance program to determine when it is considered cost effective to require a custodial parent to enroll a child in an available group health insurance plan pursuant to paragraphs (b) and (c) of subdivision one of section three hundred sixty-seven-a of the social services law. (d) The cost of providing health insurance benefits or benefits under the state's child health insurance plan or the medical assistance program, pursuant to paragraph (c) of this subdivision, shall be deemed cash medical support, and the court shall determine the obligation of either or both parents to contribute to the cost thereof pursuant to subparagraph five of paragraph (c) of subdivision one-b of this section. (e) The court shall provide in the order of support that the legally responsible relative immediately notify the other party, or the other party and the support collection unit when the order is issued on behalf of a child in receipt of public assistance and care or in receipt of services pursuant to section one hundred eleven-g of the social services law, of any change in health insurance benefits, including any termination of benefits, change in the health insurance benefit carrier, premium, or extent and availability of existing or new benefits. (f) Where the court determines that health insurance benefits are available, the court shall provide in the order of support that the legally responsible relative immediately enroll the eligible dependents named in the order who are otherwise eligible for such benefits without regard to any seasonal enrollment restrictions. Such order shall further direct the legally responsible relative to maintain such benefits as long as they remain available to such relative. Such order shall further direct the legally responsible relative to assign all insurance reimbursement payments for health care expenses incurred for his or her eligible dependents to the provider of such services or the party actually having incurred and satisfied such expenses, as appropriate. (g) When the court issues an order of child support or combined child and spousal support on behalf of persons in receipt of public assistance and care or in receipt of services pursuant to section one hundred eleven-g of the social services law, such order shall further direct that the provision of health care benefits shall be immediately enforced pursuant to section fifty-two hundred forty-one of the civil practice law and rules. (h) When the court issues an order of child support or combined child and spousal support on behalf of persons other than those in receipt of public assistance and care or in receipt of services pursuant to section one hundred eleven-g of the social services law, the court shall also issue a separate order which shall include the necessary direction to ensure the order's characterization as a qualified medical child support order as defined by section six hundred nine of the employee retirement income security act of 1974 (29 USC 1169). Such order shall: (i) clearly state that it creates or recognizes the existence of the right of the named dependent to be enrolled and to receive benefits for which the legally responsible relative is eligible under the available group health plans, and shall clearly specify the name, social security number and mailing address of the legally responsible relative, and of each dependent to be covered by the order; (ii) provide a clear description of the type of coverage to be provided by the group health plan to each such 22

61 dependent or the manner in which the type of coverage is to be determined; and (iii) specify the period of time to which the order applies. The court shall not require the group health plan to provide any type or form of benefit or option not otherwise provided under the group health plan except to the extent necessary to meet the requirements of a law relating to medical child support described in section one thousand three hundred and ninety-six g of title forty-two of the United States code. (i) Upon a finding that a legally responsible relative wilfully failed to obtain health insurance benefits in violation of a court order, such relative will be presumptively liable for all health care expenses incurred on behalf of such dependents from the first date such dependents were eligible to be enrolled to receive health insurance benefits after the issuance of the order of support directing the acquisition of such coverage. (j) The order shall be effective as of the date of the application therefor, and any retroactive amount of child support due shall be support arrears/past due support and shall, except as provided for herein, be paid in one lump sum or periodic sums, as the court shall direct, taking into account any amount of temporary support which has been paid. In addition, such retroactive child support shall be enforceable in any manner provided by law including, but not limited to, an execution for support enforcement pursuant to subdivision (b) of section fifty-two hundred forty-one of the civil practice law and rules. When a child receiving support is a public assistance recipient, or the order of support is being enforced or is to be enforced pursuant to section one hundred eleven-g of the social services law, the court shall establish the amount of retroactive child support and notify the parties that such amount shall be enforced by the support collection unit pursuant to an execution for support enforcement as provided for in subdivision (b) of section fifty-two hundred forty-one of the civil practice law and rules, or in such periodic payments as would have been authorized had such an execution been issued. In such case, the courts shall not direct the schedule of repayment of retroactive support. Where such direction is for child support and paternity has been established by a voluntary acknowledgement of paternity as defined in section forty-one hundred thirty-five-b of the public health law, the court shall inquire of the parties whether the acknowledgement has been duly filed, and unless satisfied that it has been so filed shall require the clerk of the court to file such acknowledgement with the appropriate registrar within five business days. Such direction may be made in the final judgment in such action or proceeding, or by one or more orders from time to time before or subsequent to final judgment, or by both such order or orders and the final judgment. Such direction may be made notwithstanding that the court for any reason whatsoever, other than lack of jurisdiction, refuses to grant the relief requested in the action or proceeding. Any order or judgment made as in this section provided may combine in one lump sum any amount payable to the custodial parent under this section with any amount payable to such parent under section two hundred thirty-six of this article. Upon the application of either parent, or of any other person or party having the care, custody and control of such child pursuant to such judgment or order, after such notice to the other party, parties or persons having such care, custody and control and given in such manner as the court shall direct, the court may annul or modify any such direction, whether made by order or final judgment, or in case no such direction shall have been made in the final judgment may, with respect to any judgment of annulment or declaring the nullity of a void marriage rendered on or after September first, nineteen hundred forty, or any judgment of separation or divorce whenever rendered, amend the judgment by inserting such direction. 23

62 Subject to the provisions of section two hundred forty-four of this article, no such modification or annulment shall reduce or annul arrears accrued prior to the making of such application unless the defaulting party shows good cause for failure to make application for relief from the judgment or order directing such payment prior to the accrual of such arrears. Such modification may increase such child support nunc pro tunc as of the date of application based on newly discovered evidence. Any retroactive amount of child support due shall be support arrears/past due support and shall be paid in one lump sum or periodic sums, as the court shall direct, taking into account any amount of temporary child support which has been paid. In addition, such retroactive child support shall be enforceable in any manner provided by law including, but not limited to, an execution for support enforcement pursuant to subdivision (b) of section fifty-two hundred forty-one of the civil practice law and rules... 1-b. (a) The court shall make its award for child support pursuant to the provisions of this subdivision. The court may vary from the amount of the basic child support obligation determined pursuant to paragraph (c) of this subdivision only in accordance with paragraph (f) of this subdivision. (b) For purposes of this subdivision, the following definitions shall be used: (1) Basic child support obligation shall mean the sum derived by adding the amounts determined by the application of subparagraphs two and three of paragraph (c) of this subdivision except as increased pursuant to subparagraphs four, five, six and seven of such paragraph. (2) Child support shall mean a sum to be paid pursuant to court order or decree by either or both parents or pursuant to a valid agreement between the parties for care, maintenance and education of any unemancipated child under the age of twenty-one years. (3) Child support percentage shall mean: (i) seventeen percent of the combined parental income for one child; (ii) twenty-five percent of the combined parental income for two children; (iii) twenty-nine percent of the combined parental income for three children; (iv) thirty-one percent of the combined parental income for four children; and (v) no less than thirty-five percent of the combined parental income for five or more children. (4) Combined parental income shall mean the sum of the income of both parents. (5) Income shall mean, but shall not be limited to, the sum of the amounts determined by the application of clauses (i), (ii), (iii), (iv), (v) and (vi) of this subparagraph reduced by the amount determined by the application of clause (vii) of this subparagraph: (i) gross (total) income as should have been or should be reported in the most recent federal income tax return. If an individual files his/her federal income tax return as a married person filing jointly, such person shall be required to prepare a form, sworn to under penalty of law, disclosing his/her gross income individually; (ii) to the extent not already included in gross income in clause (i) of this subparagraph, investment income reduced by sums expended in connection with such investment; (iii) to the extent not already included in gross income in clauses (i) and (ii) of this subparagraph, the amount of income or compensation voluntarily deferred and income received, if any, from the following sources: 24

63 (A) workers' compensation, (B) disability benefits, (C) unemployment insurance benefits, (D) social security benefits, (E) veterans benefits, (F) pensions and retirement benefits, (G) fellowships and stipends, and (H) annuity payments; (iv) at the discretion of the court, the court may attribute or impute income from, such other resources as may be available to the parent, including, but not limited to: (A) non-income producing assets, (B) meals, lodging, memberships, automobiles or other perquisites that are provided as part of compensation for employment to the extent that such perquisites constitute expenditures for personal use, or which expenditures directly or indirecly 2 confer personal economic benefits, (C) fringe benefits provided as part of compensation for employment, and (D) money, goods, or services provided by relatives and friends; (v) an amount imputed as income based upon the parent's former resources or income, if the court determines that a parent has reduced resources or income in order to reduce or avoid the parent's obligation for child support; (vi) to the extent not already included in gross income in clauses (i) and (ii) of this subparagraph, the following self-employment deductions attributable to self-employment carried on by the taxpayer: (A) any depreciation deduction greater than depreciation calculated on a straight-line basis for the purpose of determining business income or investment credits, and (B) entertainment and travel allowances deducted from business income to the extent said allowances reduce personal expenditures; (vii) the following shall be deducted from income prior to applying the provisions of paragraph (c) of this subdivision: (A) unreimbursed employee business expenses except to the extent said expenses reduce personal expenditures, (B) alimony or maintenance actually paid to a spouse not a party to the instant action pursuant to court order or validly executed written agreement, (C) alimony or maintenance actually paid or to be paid to a spouse that is a party to the instant action pursuant to an existing court order or contained in the order to be entered by the court, or pursuant to a validly executed written agreement, provided the order or agreement provides for a specific adjustment, in accordance with this subdivision, in the amount of child support payable upon the termination of alimony or maintenance to such spouse, (D) child support actually paid pursuant to court order or written agreement on behalf of any child for whom the parent has a legal duty of support and who is not subject to the instant action, (E) public assistance, (F) supplemental security income, (G) New York city or Yonkers income or earnings taxes actually paid, and (H) federal insurance contributions act (FICA) taxes actually paid. (6) Self-support reserve shall mean one hundred thirty-five percent of the poverty income guidelines amount for a single person as reported by the federal department of health and human services. For the calendar year nineteen hundred eighty-nine, the self-support reserve shall be 25

64 eight thousand sixty-five dollars. On March first of each year, the self-support reserve shall be revised to reflect the annual updating of the poverty income guidelines as reported by the federal department of health and human services for a single person household. (c) The amount of the basic child support obligation shall be determined in accordance with the provision of this paragraph: (1) The court shall determine the combined parental income. (2) The court shall multiply the combined parental income up to the amount set forth in paragraph (b) of subdivision two of section one hundred eleven-i of the social services law 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. (3) Where the combined parental income exceeds the dollar amount set forth in subparagraph two of this paragraph, the court shall determine the amount of child support for the amount of the combined parental income in excess of such dollar amount through consideration of the factors set forth in paragraph (f) of this subdivision and/or the child support percentage. (4) Where the custodial parent is working, or receiving elementary or secondary education, or higher education or vocational training which the court determines will lead to employment, and incurs child care expenses as a result thereof, the court shall determine reasonable child care expenses and such child care expenses, where incurred, shall be prorated in the same proportion as each parent's income is to the combined parental income. Each parent's pro rata share of the child care expenses shall be separately stated and added to the sum of subparagraphs two and three of this paragraph. (5) the court shall determine the parties' obligation to provide health insurance benefits pursuant to this section and to pay cash medical support as provided under this subparagraph. (i) Cash medical support means an amount ordered to be paid toward the cost of health insurance provided by a public entity or by a parent through an employer or organization, including such employers or organizations which are self insured, or through other available health insurance or health care coverage plans, and/or for other health care expenses not covered by insurance. (ii) Where health insurance benefits pursuant to subparagraph one and clauses (i) and (ii) of subparagraph two of paragraph (c) of subdivision one of this section are determined by the court to be available, the cost of providing health insurance benefits shall be prorated between the parties in the same proportion as each parent's income is to the combined parental income. If the custodial parent is ordered to provide such benefits, the non-custodial parent's pro rata share of such costs shall be added to the basic support obligation. If the non-custodial parent is ordered to provide such benefits, the custodial parent's pro rata share of such costs shall be deducted from the basic support obligation. (iii) Where health insurance benefits pursuant to subparagraph one and clauses (i) and (ii) of subparagraph two of paragraph (c) of subdivision one of this section are determined by the court to be unavailable, if the child or children are determined eligible for coverage under the medical assistance program established pursuant to title eleven of article five of the social services law, the court shall order the non-custodial parent to pay cash medical support as follows: (A) In the case of a child or children authorized for managed care coverage under the medical assistance program, the lesser of the amount that would be required as a family contribution under the state's child health insurance plan pursuant to title one-a of article twenty-five of the public health law for the child or children if they were in a two-parent household with income 26

65 equal to the combined income of the non-custodial and custodial parents or the premium paid by the medical assistance program on behalf of the child or children to the managed care plan. The court shall separately state the non-custodial parent's monthly obligation. The non-custodial parent's cash medical support obligation under this clause shall not exceed five percent of his or her gross income, or the difference between the non-custodial parent's income and the selfsupport reserve, whichever is less. (B) In the case of a child or children authorized for fee-for-service coverage under the medical assistance program other than a child or children described in item (A) of this clause, the court shall determine the non-custodial parent's maximum annual cash medical support obligation, which shall be equal to the lesser of the monthly amount that would be required as a family contribution under the state's child health insurance plan pursuant to title one-a of article twentyfive of the public health law for the child or children if they were in a two-parent household with income equal to the combined income of the non-custodial and custodial parents times twelve months or the number of months that the child or children are authorized for fee-for-service coverage during any year. The court shall separately state in the order the non-custodial parent's maximum annual cash medical support obligation and, upon proof to the court that the noncustodial parent, after notice of the amount due, has failed to pay the public entity for incurred health care expenses, the court shall order the non-custodial parent to pay such incurred health care expenses up to the maximum annual cash medical support obligation. Such amounts shall be support arrears/past due support and shall be subject to any remedies as provided by law for the enforcement of support arrears/past due support. The total annual amount that the non-custodial parent is ordered to pay under this clause shall not exceed five percent of his or her gross income or the difference between the non-custodial parent's income and the self-support reserve, whichever is less. (C) The court shall order cash medical support to be paid by the non-custodial parent for health care expenses of the child or children paid by the medical assistance program prior to the issuance of the court's order. The amount of such support shall be calculated as provided under item (A) or (B) of this clause, provided that the amount that the non-custodial parent is ordered to pay under this item shall not exceed five percent of his or her gross income or the difference between the non-custodial parent's income and the self-support reserve, whichever is less, for the year when the expense was incurred. Such amounts shall be support arrears/past due support and shall be subject to any remedies as provided by law for the enforcement of support arrears/past due support. (iv) Where health insurance benefits pursuant to subparagraph one and clauses (i) and (ii) of subparagraph two of paragraph (c) of subdivision one of this section are determined by the court to be unavailable, and the child or children are determined eligible for coverage under the state's child health insurance plan pursuant to title one-a of article twenty-five of the public health law, the court shall prorate each parent's share of the cost of the family contribution required under such child health insurance plan in the same proportion as each parent's income is to the combined parental income, and state the amount of the non-custodial parent's share in the order. The total amount of cash medical support that the non-custodial parent is ordered to pay under this clause shall not exceed five percent of his or her gross income, or the difference between the non-custodial parent's income and the self-support reserve, whichever is less. (v) In addition to the amounts ordered under clause (ii), (iii), or (iv), the court shall pro rate each parent's share of reasonable health care expenses not reimbursed or paid by insurance, the medical assistance program established pursuant to title eleven of article five of the social 27

66 services law, or the state's child health insurance plan pursuant to title one-a of article twentyfive of the public health law, in the same proportion as each parent's income is to the combined parental income, and state the non-custodial parent's share as a percentage in the order. The noncustodial parent's pro rata share of such health care expenses determined by the court to be due and owing shall be support arrears/past due support and shall be subject to any remedies provided by law for the enforcement of support arrears/past due support. In addition, the court may direct that the non-custodial parent's pro rata share of such health care expenses be paid in one sum or in periodic sums, including direct payment to the health care provider. (vi) Upon proof by either party that cash medical support pursuant to clause (ii), (iii), (iv), or (v) of this subparagraph would be unjust or inappropriate pursuant to paragraph (f) of this subdivision, the court shall: (A) order the parties to pay cash medical support as the court finds just and appropriate, considering the best interests of the child; and (B) set forth in the order the factors it considered, the amount calculated under this subparagraph, the reason or reasons the court did not order such amount, and the basis for the amount awarded. (6) Where the court determines that the custodial parent is seeking work and incurs child care expenses as a result thereof, the court may determine reasonable child care expenses and may apportion the same between the custodial and non-custodial parent. The non-custodial parent's share of such expenses shall be separately stated and paid in a manner determined by the court. (7) Where the court determines, having regard for the circumstances of the case and of the respective parties and in the best interests of the child, and as justice requires, that the present or future provision of post-secondary, private, special, or enriched education for the child is appropriate, the court may award educational expenses. The non-custodial parent shall pay educational expenses, as awarded, in a manner determined by the court, including direct payment to the educational provider. (d) Notwithstanding the provisions of paragraph (c) of this subdivision, where the annual amount of the basic child support obligation would reduce the non-custodial parent's income below the poverty income guidelines amount for a single person as reported by the federal department of health and human services, the basic child support obligation shall be twenty-five dollars per month, provided, however, that if the court finds that such basic child support obligation is unjust or inappropriate, which finding shall be based upon considerations of the factors set forth in paragraph (f) of this subdivision, the court shall order the non-custodial parent to pay such amount of the child support as the court finds just and appropriate. Notwithstanding the provisions of paragraph (c) of this subdivision, where the annual amount of the basic child support obligation would reduce the non-custodial parent's income below the self-support reserve but not below the poverty income guidelines amount for a single person as reported by the federal department of health and human services, the basic child support obligation shall be fifty dollars per month or the difference between the non-custodial parent's income and the selfsupport reserve, whichever is greater, in addition to any amounts that the court may, in its discretion, order in accordance with subparagraphs four, five, six and/or seven of paragraph (c) of this subdivision. (e) Where a parent is or may be entitled to receive non-recurring payments from extraordinary sources not otherwise considered as income pursuant to this section, including but not limited to: (1) Life insurance policies; 28

67 (2) Discharges of indebtedness; (3) Recovery of bad debts and delinquency amounts; (4) Gifts and inheritances; and (5) Lottery winnings, the court, in accordance with paragraphs (c), (d) and (f) of this subdivision may allocate a proportion of the same to child support, and such amount shall be paid in a manner determined by the court. (f) The court shall calculate the basic child support obligation, and the non-custodial parent's pro rata share of the basic child support obligation. Unless the court finds that the non-custodial parents's 2 pro-rata share of the basic child support obligation is unjust or inappropriate, which finding shall be based upon consideration of the following factors: (1) The financial resources of the custodial and non-custodial parent, 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 household not been dissolved; (4) The tax consequences to the parties; (5) The non-monetary 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 the other parent's gross income; (8) The needs of the children of the non-custodial parent for whom the non-custodial parent is providing support who are not subject to the instant action and whose support has not been deducted from income pursuant to subclause (D) of clause (vii) of subparagraph five of paragraph (b) of this subdivision, and the financial resources of any person obligated to support such children, provided, however, that this factor may apply only if the resources available to support such children are less than the resources available to support the children who are subject to the instant action; (9) Provided that the child is not on public assistance (i) extraordinary expenses incurred by the non-custodial parent in exercising visitation, or (ii) expenses incurred by the non-custodial parent in extended visitation provided that the custodial parent's expenses are substantially reduced as a result thereof; and (10) Any other factors the court determines are relevant in each case, the court shall order the non-custodial parent to pay his or her pro rata share of the basic child support obligation, and may order the non-custodial parent to pay an amount pursuant to paragraph (e) of this subdivision. (g) Where the court finds that the non-custodial parent's pro rata share of the basic child support obligation is unjust or inappropriate, the court shall order the non-custodial parent to pay such amount of child support as the court finds just and appropriate, and the court shall set forth, in a written order, the factors it considered; the amount of each party's pro rata share of the basic child support obligation; and the reasons that the court did not order the basic child support obligation. Such written order may not be waived by either party or counsel; provided, however, and notwithstanding any other provision of law, the court shall not find that the non-custodial parent's pro rata share of such obligation is unjust or inappropriate on the basis that such share 29

68 exceeds the portion of a public assistance grant which is attributable to a child or children. Where the non-custodial parent's income is less than or equal to the poverty income guidelines amount for a single person as reported by the federal department of health and human services, unpaid child support arrears in excess of five hundred dollars shall not accrue. (h) A validly executed agreement or stipulation voluntarily entered into between the parties after the effective date of this subdivision presented to the court for incorporation in an order or judgment shall include a provision stating that the parties have been advised of the provisions of this subdivision, and that the basic child support obligation provided for therein would presumptively result in the correct amount of child support to be awarded. In the event that such agreement or stipulation deviates from the basic child support obligation, the agreement or stipulation must specify the amount that such basic child support obligation would have been and the reason or reasons that such agreement or stipulation does not provide for payment of that amount. Such provision may not be waived by either party or counsel. Nothing contained in this subdivision shall be construed to alter the rights of the parties to voluntarily enter into validly executed agreements or stipulations which deviate from the basic child support obligation provided such agreements or stipulations comply with the provisions of this paragraph. The court shall, however, retain discretion with respect to child support pursuant to this section. Any court order or judgment incorporating a validly executed agreement or stipulation which deviates from the basic child support obligation shall set forth the court's reasons for such deviation. (i) Where either or both parties are unrepresented, the court shall not enter an order or judgment other than a temporary order pursuant to section two hundred thirty-seven of this article, that includes a provision for child support unless the unrepresented party or parties have received a copy of the child support standards chart promulgated by the commissioner of the office of temporary and disability assistance pursuant to subdivision two of section one hundred eleven-i of the social services law. Where either party is in receipt of child support enforcement services through the local social services district, the local social services district child support enforcement unit shall advise such party of the amount derived from application of the child support percentage and that such amount serves as a starting point for the determination of the child support award, and shall provide such party with a copy of the child support standards chart. (j) In addition to financial disclosure required in section two hundred thirty-six of this article, the court may require that the income and/or expenses of either party be verified with documentation including, but not limited to, past and present income tax returns, employer statements, pay stubs, corporate, business, or partnership books and records, corporate and business tax returns, and receipts for expenses or such other means of verification as the court determines appropriate. Nothing herein shall affect any party's right to pursue discovery pursuant to this chapter, the civil practice law and rules, or the family court act. (k) When a party has defaulted and/or the court is otherwise presented with insufficient evidence to determine gross income, the court shall order child support based upon the needs or standard of living of the child, whichever is greater. Such order may be retroactively modified upward, without a showing of change in circumstances. 30

69 (l) In any action or proceeding for modification of an order of child support existing prior to the effective date of this paragraph, brought pursuant to this article, the child support standards set forth in this subdivision shall not constitute a change of circumstances warranting modification of such support order; provided, however, that (1) where the circumstances warrant modification of such order, or (2) where any party objects to an adjusted child support order made or proposed at the direction of the support collection unit pursuant to section one hundred eleven-h or one hundred eleven-n of the social services law, and the court is reviewing the current order of child support, such standards shall be applied by the court in its determination with regard to the request for modification, or disposition of an objection to an adjusted child support order made or proposed by a support collection unit. In applying such standards, when the order to be modified incorporates by reference or merges with a validly executed separation agreement or stipulation of settlement, the court may consider, in addition to the factors set forth in paragraph (f) of this subdivision, the provisions of such agreement or stipulation concerning property distribution, distributive award and/or maintenance in determining whether the amount calculated by using the standards would be unjust or inappropriate. Modification of child support after an agreement or judgment: DRL 236 (B)(9)(b)(2)(i-ii) UNLESS parties specifically opt-out (2)(i) The court may modify an order of child support, including an order incorporating without merging an agreement or stipulation of the parties, upon a showing of a substantial change in circumstances. Incarceration shall not be a bar to finding a substantial change in circumstances provided such incarceration is not the result of nonpayment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment. (ii) In addition, unless the parties have specifically opted out of the following provisions in a validly executed agreement or stipulation entered into between the parties, the court may modify an order of child support where: (A) three years have passed since the order was entered, last modified or adjusted; or (B) there has been a change in either party's gross income by fifteen percent or more since the order was entered, last modified, or adjusted. A reduction in income shall not be considered as a ground for modification unless it was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability, and experience. (iii) No modification or annulment shall reduce or annul any arrears of child support which have accrued prior to the date of application to annul or modify any prior order or judgment as to child support. Such modification may increase child support nunc pro tunc as of the date of application based on newly discovered evidence. Any retroactive amount of child support due shall, except as provided for in this subparagraph, be paid in one sum or periodic sums, as the court directs, taking into account any temporary or partial payments which have been made. Any retroactive amount of child support due shall be support arrears/past due support. In addition, such retroactive child support shall be enforceable in any manner provided by law including, but not limited to, an execution for support enforcement pursuant to subdivision (b) of section fifty-two hundred forty-one of the civil practice law and rules. When a child receiving support is a public assistance recipient, or the order of support is being enforced or is to be enforced pursuant to 31

70 section one hundred eleven-g of the social services law, the court shall establish the amount of retroactive child support and notify the parties that such amount shall be enforced by the support collection unit pursuant to an immediate execution for support enforcement as provided for by this chapter, or in such periodic payments as would have been authorized had such an execution been issued. In such case, the court shall not direct the schedule of repayment of retroactive support. c. Notwithstanding any other provision of law, any written application or motion to the court for the modification or enforcement of a child support or combined maintenance and child support order for persons not in receipt of family assistance must contain either a request for child support enforcement services which would authorize the collection of the support obligation by the immediate issuance of an income execution for support enforcement as provided for by this chapter, completed in the manner specified in section one hundred eleven-g of the social services law; or a statement that the applicant has applied for or is in receipt of such services; or a statement that the applicant knows of the availability of such services, has declined them at this time and where support enforcement services pursuant to section one hundred eleven-g of the social services law have been declined that the applicant understands that an income deduction order may be issued pursuant to subdivision (c) of section five thousand two hundred forty-two of the civil practice law and rules without other child support enforcement services and that payment of an administrative fee may be required. The court shall provide a copy of any such request for child support enforcement services to the support collection unit of the appropriate social services district any time it directs payments to be made to such support collection unit. Additionally, the copy of such request shall be accompanied by the name, address and social security number of the parties; the date and place of the parties' marriage; the name and date of birth of the child or children; and the name and address of the employers and income payors of the party ordered to pay child support to the other party. Unless the party receiving child support or combined maintenance and child support has applied for or is receiving such services, the court shall not direct such payments to be made to the support collection unit, as established in section one hundred eleven-h of the social services law. Modification of child support where the parties have opted out of DRL 236 (B)(9)(b)(2)(i-ii) Boden v. Boden, 42 N.Y.2d 210 (1977), Brescia v Fitts, 56 N.Y.2d 132 (1982): There been an unreasonable and unanticipated change of circumstances sufficient to change the support provisions of the Agreement and a concomitant showing of need. 32

71 SUPPORT ENFORCEMENT Income Execution and Income Deduction for Support Enforcement CPLR 5241: Income execution CPLR 5242: Income deduction CPLR 5205: Personal Property Exempt from Application to the Satisfaction of Money Judgments But See 5205(c)(4) IRAs, 401Ks, Keoghs, etc. can be invaded for child support and maintenance in certain circumstances; and 5205(d)(3) Court awarded maintenance and child support not exempt Other Enforcement Devices and Remedies DRL , 237(c), 238 Judiciary Law 753 (contempt) 1 1 Different standard for finding of Contempt in Family Court vs. Supreme Court: Supreme Court (which requires use of Judiciary Law Section 753, along with applicable DRL Sections) requires showing that party seeking enforcement has exhausted all other enforcement remedies OR that attempt to utilize them would be futile; Family Court has no such requirement. Also, presumption of willfulness leading to finding of contempt more easily in Family Court merely by showing failure to pay Court ordered support (which you must show in Supreme Court as well) 33

72 MAINTENANCE Pendente lite Maintenance: DRL 236(B)(5-a) A summary of the lengthy statute below: The presumptive amount of temporary maintenance to be paid is determined by the following formula. 1. Determine Payor s income ( income as defined by the CSSA) 2. Determine Payee s income ( income as defined by the CSSA) 3. Calculation A: 30% of Payor s income minus 20% of Payee s income 4. Calculation B: 40% of combined income minus Payee s income 5. Presumptive amount of maintenance is the lesser of calculation A or B, unless: a. If either A or B is a negative number or 0, the presumptive amount is $0. b. The above calculations include income up to a cap amount (presently $524,000). If the Payor s income exceeds $524,000, the court must consider the 19 factors as specified in the statute in awarding any maintenance based on the income above $524,000. c. If the presumptive amount reduces the Payor s income below the self-support reserve (currently, $15,080), the presumptive amount is the Payor s income minus the selfsupport reserve. d. The Court may adjust any award if it finds the award to be unjust or inappropriate based on 17 factors as specified in the statute. There is a handy temporary maintenance calculator at: 5-a. Temporary maintenance awards. a. Except where the parties have entered into an agreement pursuant to subdivision three of this part providing for maintenance, in any matrimonial action the court shall make its award for temporary maintenance pursuant to the provisions of this subdivision. b. For purposes of this subdivision, the following definitions shall be used: (1) Payor shall mean the spouse with the higher income. (2) Payee shall mean the spouse with the lower income. (3) Length of marriage shall mean the period from the date of marriage until the date of commencement of action. (4) Income shall mean: (a) income as defined in the child support standards act and codified in section two hundred forty of this article and section four hundred thirteen of the family court act; and (b) income from income producing property to be distributed pursuant to subdivision five of this part. (5) Income cap shall mean up to and including five hundred thousand dollars of the payor's annual income; provided, however, beginning January thirty-first, two thousand twelve and every two years thereafter, the payor's annual income amount shall increase 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 shall determine and publish the income cap. (6) Guideline amount of temporary maintenance shall mean the sum derived by the application of paragraph c of this subdivision. 34

73 (7) Guideline duration shall mean the durational period determined by the application of paragraph d of this subdivision. (8) Presumptive award shall mean the guideline amount of the temporary maintenance award for the guideline duration prior to the court's application of any adjustment factors as provided in subparagraph one of paragraph e of this subdivision. (9) Self-support reserve shall mean the self-support reserve as defined in the child support standards act and codified in section two hundred forty of this article and section four hundred thirteen of the family court act. c. The court shall determine the guideline amount of temporary maintenance in accordance with the provisions of this paragraph after determining the income of the parties: (1) Where the payor's income is up to and including the income cap: (a) the court shall subtract twenty percent of the income of the payee from thirty percent of the income up to the income cap of the payor. (b) the court shall then multiply the sum of the payor's income up to and including the income cap and all of the payee's income by forty percent. (c) the court shall subtract the income of the payee from the amount derived from clause (b) of this subparagraph. (d) the guideline amount of temporary maintenance shall be the lower of the amounts determined by clauses (a) and (c) of this subparagraph; if the amount determined by clause (c) of this subparagraph is less than or equal to zero, the guideline amount shall be zero dollars. (2) Where the income of the payor exceeds the income cap: (a) the court shall determine the guideline amount of temporary maintenance for that portion of the payor's income that is up to and including the income cap according to subparagraph one of this paragraph, and, for the payor's income in excess of the income cap, the court shall determine any additional guideline amount of temporary maintenance through consideration of the following factors: (i) the length of the marriage; (ii) the substantial differences in the incomes of the parties; (iii) the standard of living of the parties established during the marriage; (iv) the age and health of the parties; (v) the present and future earning capacity of the parties; (vi) the need of one party to incur education or training expenses; (vii) the wasteful dissipation of marital property; (viii) the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; (ix) the existence and duration of a pre-marital joint household or a pre-divorce separate household; (x) acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law; (xi) the availability and cost of medical insurance for the parties; (xii) 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 or ability to obtain meaningful employment; 35

74 (xiii) the inability of one party to obtain meaningful employment due to age or absence from the workforce; (xiv) the need to pay for exceptional additional expenses for the child or children, including, but not limited to, schooling, day care and medical treatment; (xv) the tax consequences to each party; (xvi) marital property subject to distribution pursuant to subdivision five of this part; (xvii) the reduced or lost earning capacity of the party seeking temporary maintenance as a result of having foregone or delayed education, training, employment or career opportunities during the marriage; (xviii) the contributions and services of the party seeking temporary maintenance as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and (xix) any other factor which the court shall expressly find to be just and proper. (b) In any decision made pursuant to this subparagraph, the court shall set forth the factors it considered and the reasons for its decision. Such written order may not be waived by either party or counsel. (3) Notwithstanding the provisions of this paragraph, where the guideline amount of temporary maintenance would reduce the payor's income below the self-support reserve for a single person, the presumptive amount of the guideline amount of temporary maintenance shall be the difference between the payor's income and the self-support reserve. If the payor's income is below the self-support reserve, there is a rebuttable presumption that no temporary maintenance is awarded. d. The court shall determine the guideline duration of temporary maintenance by considering the length of the marriage. Temporary maintenance shall terminate upon the issuance of the final award of maintenance or the death of either party, whichever occurs first. e. (1) The court shall order the presumptive award of temporary maintenance in accordance with paragraphs c and d of this subdivision, unless the court finds that the presumptive award is unjust or inappropriate and adjusts the presumptive award of temporary maintenance accordingly based upon consideration of the following factors: (a) the standard of living of the parties established during the marriage; (b) the age and health of the parties; (c) the earning capacity of the parties; (d) the need of one party to incur education or training expenses; (e) the wasteful dissipation of marital property; (f) the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; (g) the existence and duration of a pre-marital joint household or a pre-divorce separate household; (h) acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law; (i) the availability and cost of medical insurance for the parties; (j) the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents 36

75 or in-laws that has inhibited or continues to inhibit a party's earning capacity or ability to obtain meaningful employment; (k) the inability of one party to obtain meaningful employment due to age or absence from the workforce; (l) the need to pay for exceptional additional expenses for the child or children, including, but not limited to, schooling, day care and medical treatment; (m) the tax consequences to each party; (n) marital property subject to distribution pursuant to subdivision five of this part; (o) the reduced or lost earning capacity of the party seeking temporary maintenance as a result of having foregone or delayed education, training, employment or career opportunities during the marriage; (p) the contributions and services of the party seeking temporary maintenance as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and (q) any other factor which the court shall expressly find to be just and proper. (2) Where the court finds that the presumptive award of temporary maintenance is unjust or inappropriate and the court adjusts the presumptive award of temporary maintenance pursuant to this paragraph, the court shall set forth, in a written order, the amount of the unadjusted presumptive award of temporary maintenance, the factors it considered, and the reasons that the court adjusted the presumptive award of temporary maintenance. Such written order shall not be waived by either party or counsel. (3) Where either or both parties are unrepresented, the court shall not enter a temporary maintenance order unless the unrepresented party or parties have been informed of the presumptive award of temporary maintenance. f. A validly executed agreement or stipulation voluntarily entered into between the parties in an action commenced after the effective date of this subdivision presented to the court for incorporation in an order shall include a provision stating that the parties have been advised of the provisions of this subdivision, and that the presumptive award provided for therein results in the correct amount of temporary maintenance. In the event that such agreement or stipulation deviates from the presumptive award of temporary maintenance, the agreement or stipulation must specify the amount that such presumptive award of temporary maintenance would have been and the reason or reasons that such agreement or stipulation does not provide for payment of that amount. Such provision may not be waived by either party or counsel. Nothing contained in this subdivision shall be construed to alter the rights of the parties to voluntarily enter into validly executed agreements or stipulations which deviate from the presumptive award of temporary maintenance provided such agreements or stipulations comply with the provisions of this subdivision. The court shall, however, retain discretion with respect to temporary, and postdivorce maintenance awards pursuant to this section. Any court order incorporating a validly executed agreement or stipulation which deviates from the presumptive award of temporary maintenance shall set forth the court's reasons for such deviation. g. When a party has defaulted and/or the court is otherwise presented with insufficient evidence to determine gross income, the court shall order the temporary maintenance award based upon the needs of the payee or the standard of living of the parties prior to commencement of the 37

76 divorce action, whichever is greater. Such order may be retroactively modified upward without a showing of change in circumstances upon a showing of newly discovered or obtained evidence. h. In any action or proceeding for modification of an order of maintenance or alimony existing prior to the effective date of this subdivision, brought pursuant to this article, the temporary maintenance guidelines set forth in this subdivision shall not constitute a change of circumstances warranting modification of such support order. i. In any decision made pursuant to this subdivision the court shall, where appropriate, consider the effect of a barrier to remarriage, as defined in subdivision six of section two hundred fiftythree of this article, on the factors enumerated in this subdivision. Post-Divorce/Durational Maintenance No formula. Award is based on the 20 factors as set forth in the statute below. 6. Post-divorce maintenance awards. a. Except where the parties have entered into an agreement pursuant to subdivision three of this part providing for maintenance, in any matrimonial action the court may order maintenance in such amount as justice requires, having regard for the standard of living of the parties established during the marriage, whether the party in whose favor maintenance is granted lacks sufficient property and income to provide for his or her reasonable needs and whether the other party has sufficient property or income to provide for the reasonable needs of the other and the circumstances of the case and of the respective parties. Such order shall be effective as of the date of the application therefor, and any retroactive amount of maintenance due shall be paid in one sum or periodic sums, as the court shall direct, taking into account any amount of temporary maintenance which has been paid. In determining the amount and duration of maintenance the court shall consider: (1) the income and property of the respective parties including marital property distributed pursuant to subdivision five of this part; (2) the length of the marriage; (3) the age and health of both parties; (4) the present and future earning capacity of both parties; (5) the need of one party to incur education or training expenses; (6) the existence and duration of a pre-marital joint household or a pre-divorce separate household; (7) acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law; (8) the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor; (9) 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; (10) the presence of children of the marriage in the respective homes of the parties; (11) the care of the children or stepchildren, disabled adult children or stepchildren, elderly 38

77 parents or in-laws that has inhibited or continues to inhibit a party's earning capacity; (12) the inability of one party to obtain meaningful employment due to age or absence from the workforce; (13) the need to pay for exceptional additional expenses for the child/children, including but not limited to, schooling, day care and medical treatment; (14) the tax consequences to each party; (15) the equitable distribution of marital property; (16) 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; (17) the wasteful dissipation of marital property by either spouse; (18) the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; (19) the loss of health insurance benefits upon dissolution of the marriage, and the availability and cost of medical insurance for the parties; and (20) any other factor which the court shall expressly find to be just and proper. b. In any decision made pursuant to this subdivision, the court shall set forth the factors it considered and the reasons for its decision and such may not be waived by either party or counsel. c. The court may award permanent maintenance, but an award of maintenance shall terminate upon the death of either party or upon the recipient's valid or invalid marriage, or upon modification pursuant to paragraph b of subdivision nine of this part or section two hundred forty-eight of this chapter. d. In any decision made pursuant to this subdivision the court shall, where appropriate, consider the effect of a barrier to remarriage, as defined in subdivision six of section two hundred fiftythree of this article, on the factors enumerated in paragraph a of this subdivision. 39

78 COUNSEL FEES McKinney's DRL Counsel fees and expenses (a) In any action or proceeding brought (1) to annul a marriage or to declare the nullity of a void marriage, or (2) for a separation, or (3) for a divorce, or (4) to declare the validity or nullity of a judgment of divorce rendered against a spouse who was the defendant in any action outside the State of New York and did not appear therein where such spouse asserts the nullity of such foreign judgment, (5) to obtain maintenance or distribution of property following a foreign judgment of divorce, or (6) to enjoin the prosecution in any other jurisdiction of an action for a divorce, the court may direct either spouse or, where an action for annulment is maintained after the death of a spouse, may direct the person or persons maintaining the action, to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse to enable the other party to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties. There shall be rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court's discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding. Applications for the award of fees and expenses may be made at any time or times prior to final judgment. Both parties to the action or proceeding and their respective attorneys, shall file an affidavit with the court detailing the financial agreement between the party and the attorney. Such affidavit shall include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses. Any applications for fees and expenses may be maintained by the attorney for either spouse in his own name in the same proceeding. Payment of any retainer fees to the attorney for the petitioning party shall not preclude any awards of fees and expenses to an applicant which would otherwise be allowed under this section. (b) Upon any application to enforce, annul or modify an order or judgment for alimony, maintenance, distributive award, distribution of marital property or for custody, visitation, or maintenance of a child, made as in section two hundred thirty-six or section two hundred forty of this article provided, or upon any application by writ of habeas corpus or by petition and order to show cause concerning custody, visitation or maintenance of a child, the court may direct a spouse or parent to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse or parent to enable the other party to carry on or defend the application or proceeding by the other spouse or parent as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties. There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court's discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding. Applications for the award of fees and expenses may be made at any time or times prior to final judgment. Both parties to the action or proceeding and their respective attorneys, shall file an 40

79 affidavit with the court detailing the financial agreement, between the party and the attorney. Such affidavit shall include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses. Any applications for fees and expenses may be maintained by the attorney for either spouse in counsel's own name in the same proceeding. Payment of any retainer fees to the attorney for the petitioning party shall not preclude any awards of fees and expenses to an applicant which would otherwise be allowed under this section. (c) In any action or proceeding for failure to obey any lawful order compelling payment of support or maintenance, or distributive award the court shall, upon a finding that such failure was willful, order respondent to pay counsel fees to the attorney representing the petitioner. (d) The term expenses as used in subdivisions (a) and (b) of this section shall include, but shall not be limited to, accountant fees, appraisal fees, actuarial fees, investigative fees and other fees and expenses that the court may determine to be necessary to enable a spouse to carry on or defend an action or proceeding under this section. In determining the appropriateness and necessity of fees, the court shall consider: 1. The nature of the marital property involved; 2. The difficulties involved, if any, in identifying and evaluating the marital property; 3. The services rendered and an estimate of the time involved; and 4. The applicant's financial status. Other rules which apply to matrimonial practitioners Failure to substantially comply with the following can result in 1. Your client not receiving a counsel fee award from the other spouse; and/or 2. A dismissal of any law suit against your former client seeking payment of your fees. NYCRR : a Statement of Client s Rights and Responsibilities must be provided to the client NYCRR : a written retainer agreement must be provided with specific requirements of the terms, and the retainer agreement must be filed with the Court NYCRR : nonrefundable retainers are prohibited (although minimum fee retainers are permitted). NYCRR : security interests are permissible only when certain requirements are met, including court approval of same. 41

80 EQUITABLE DISTRIBUTION DRL Section 236, Part B b. The term distributive award shall mean payments provided for in a valid agreement between the parties or awarded by the court, in lieu of or to supplement, facilitate or effectuate the division or distribution of property where authorized in a matrimonial action, and payable either in a lump sum or over a period of time in fixed amounts. Distributive awards shall not include payments which are treated as ordinary income to the recipient under the provisions of the United States Internal Revenue Code. c. The term marital property shall mean all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held, except as otherwise provided in agreement pursuant to subdivision three of this part. Marital property shall not include separate property as hereinafter defined. d. The term separate property shall mean: (1) property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse; (2) compensation for personal injuries; (3) 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 the other spouse; (4) property described as separate property by written agreement of the parties pursuant to subdivision three of this part. 5. Disposition of property in certain matrimonial actions. a. Except where the parties have provided in an agreement for the disposition of their property pursuant to subdivision three of this part, the court, in an action wherein all or part of the relief granted is divorce, or the dissolution, annulment or declaration of the nullity of a marriage, and in proceedings to obtain a distribution of marital property following a foreign judgment of divorce, shall determine the respective rights of the parties in their separate or marital property, and shall provide for the disposition thereof in the final judgment. b. Separate property shall remain such. c. Marital property shall be distributed equitably between the parties, considering the circumstances of the case and of the respective parties. d. In determining an equitable disposition of property under paragraph c, the court shall consider: (1) the income and property of each party at the time of marriage, and at the time of the commencement of the action; (2) the duration of the marriage and the age and health of both parties; (3) the need of a 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 dissolution of the marriage as of the date of dissolution; (5) the loss of health insurance benefits upon dissolution of the marriage; (6) any award of maintenance under subdivision six of this part; (7) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of 42

81 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; (8) the liquid or non-liquid character of all marital property; (9) the probable future financial circumstances of each party; (10) 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; (11) the tax consequences to each party; (12) the wasteful dissipation of assets by either spouse; (13) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; (14) any other factor which the court shall expressly find to be just and proper. e. In any action in which the court shall determine that an equitable distribution is appropriate but would be impractical or burdensome or where the distribution of an interest in a business, corporation or profession would be contrary to law, the court in lieu of such equitable distribution shall make a distributive award in order to achieve equity between the parties. The court in its discretion, also may make a distributive award to supplement, facilitate or effectuate a distribution of marital property. f. In addition to the disposition of property as set forth above, the court may make such order regarding the use and occupancy of the marital home and its household effects as provided in section two hundred thirty-four of this chapter, without regard to the form of ownership of such property. g. In any decision made pursuant to this subdivision, the court shall set forth the factors it considered and the reasons for its decision and such may not be waived by either party or counsel. h. In any decision made pursuant to this subdivision the court shall, where appropriate, consider the effect of a barrier to remarriage, as defined in subdivision six of section two hundred fiftythree of this article, on the factors enumerated in paragraph d of this subdivision. 43

82 OTHER REQUIREMENTS McKinney's DRL Removal of barriers to remarriage 1. This section applies only to a marriage solemnized in this state or in any other jurisdiction by a person specified in subdivision one of section eleven of this chapter. 2. Any party to a marriage defined in subdivision one of this section who commences a proceeding to annul the marriage or for a divorce must allege, in his or her verified complaint: (i) that, to the best of his or her knowledge, that he or she has taken or that he or she will take, prior to the entry of final judgment, all steps solely within his or her power to remove any barrier to the defendant's remarriage following the annulment or divorce; or (ii) that the defendant has waived in writing the requirements of this subdivision. 3. No final judgment of annulment or divorce shall thereafter be entered unless the plaintiff shall have filed and served a sworn statement: (i) that, to the best of his or her knowledge, he or she has, prior to the entry of such final judgment, taken all steps solely within his or her power to remove all barriers to the defendant's remarriage following the annulment or divorce; or (ii) that the defendant has waived in writing the requirements of this subdivision. 4. In any action for divorce based on subdivisions five and six of section one hundred seventy of this chapter in which the defendant enters a general appearance and does not contest the requested relief, no final judgment of annulment or divorce shall be entered unless both parties shall have filed and served sworn statements: (i) that he or she has, to the best of his or her knowledge, taken all steps solely within his or her power to remove all barriers to the other party's remarriage following the annulment or divorce; or (ii) that the other party has waived in writing the requirements of this subdivision. 5. The writing attesting to any waiver of the requirements of subdivision two, three or four of this section shall be filed with the court prior to the entry of a final judgment of annulment or divorce. 6. As used in the sworn statements prescribed by this section barrier to remarriage includes, without limitation, any religious or conscientious restraint or inhibition, of which the party required to make the verified statement is aware, that is imposed on a party to a marriage, under the principles held by the clergyman or minister who has solemnized the marriage, by reason of the other party's commission or withholding of any voluntary act. Nothing in this section shall be construed to require any party to consult with any clergyman or minister to determine whether there exists any such religious or conscientious restraint or inhibition. It shall not be deemed a barrier to remarriage within the meaning of this section if the restraint or inhibition cannot be removed by the party's voluntary act. Nor shall it be deemed a barrier to remarriage if the party must incur expenses in connection with removal of the restraint or inhibition and the other party refuses to provide reasonable reimbursement for such expenses. All steps solely within his or her power shall not be construed to include application to a marriage tribunal or other similar organization or agency of a religious denomination which has authority to annul or dissolve a 44

83 marriage under the rules of such denomination. 7. No final judgment of annulment or divorce shall be entered, notwithstanding the filing of the plaintiff's sworn statement prescribed by this section, if the clergyman or minister who has solemnized the marriage certifies, in a sworn statement, that he or she has solemnized the marriage and that, to his or her knowledge, the plaintiff has failed to take all steps solely within his or her power to remove all barriers to the defendant's remarriage following the annulment or divorce, provided that the said clergyman or minister is alive and available and competent to testify at the time when final judgment would be entered. 8. Any person who knowingly submits a false sworn statement under this section shall be guilty of making an apparently sworn false statement in the first degree and shall be punished in accordance with section of the penal law. 9. Nothing in this section shall be construed to authorize any court to inquire into or determine any ecclesiastical or religious issue. The truth of any statement submitted pursuant to this section shall not be the subject of any judicial inquiry, except as provided in subdivision eight of this section. 45

84 SAME SEX MARRIAGE & DIVORCE 1. Marriage: DRL 10-a and 10-b. There is no residency requirement in order to be married in New York. McKinney's DRL 10-a 10-a. Parties to a marriage 1. A marriage that is otherwise valid shall be valid regardless of whether the parties to the marriage are of the same or different sex. 2. No government treatment or legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage, whether deriving from statute, administrative or court rule, public policy, common law or any other source of law, shall differ based on the parties to the marriage being or having been of the same sex rather than a different sex. When necessary to implement the rights and responsibilities of spouses under the law, all gender-specific language or terms shall be construed in a gender-neutral manner in all such sources of law. McKinney's DRL 10-b 10-b. Religious exception 1. Notwithstanding any state, local or municipal law, rule, regulation, ordinance, or other provision of law to the contrary, a religious entity as defined under the education law or section two of the religious corporations law, or a corporation incorporated under the benevolent orders law or described in the benevolent orders law but formed under any other law of this state, or a not-for-profit corporation operated, supervised, or controlled by a religious corporation, or any employee thereof, being managed, directed, or supervised by or in conjunction with a religious corporation, benevolent order, or a not-for-profit corporation as described in this subdivision, shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage. Any such refusal to provide services, accommodations, advantages, facilities, goods, or privileges shall not create any civil claim or cause of action or result in any state or local government action to penalize, withhold benefits, or discriminate against such religious corporation, benevolent order, a not-for-profit corporation operated, supervised, or controlled by a religious corporation, or any employee thereof being managed, directed, or supervised by or in conjunction with a religious corporation, benevolent order, or a not-for-profit corporation. 2. Notwithstanding any state, local or municipal law or rule, regulation, ordinance, or other provision of law to the contrary, nothing in this article shall limit or diminish the right, pursuant to subdivision eleven of section two hundred ninety-six of the executive law, of any religious or denominational institution or organization, or any organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious organization, to limit employment or sales or rental of housing accommodations or admission to or give preference to persons of the same religion or denomination or from taking such action as is calculated by such organization to promote the religious principles for which it is established or maintained. 46

85 3. Nothing in this section shall be deemed or construed to limit the protections and exemptions otherwise provided to religious organizations under section three of article one of the constitution of the state of New York. 2. Divorce: All the same statutes apply. However, some words of warning: a. Couples who are not residents of NY cannot be divorced in NY. The state(s) in which they reside may not recognize same-sex marriage and therefore, will not permit same-sex divorce. b. Due to the Defense of Marriage Act, which prohibits the federal government from recognizing same-sex marriages, there are major tax and estate and trust implications for same sex divorce. Just a partial list of these implications: i. Maintenance paid from one spouse to the other is not a tax deduction to the payor and taxable income to the payee for federal tax purposes (although it is for NYS tax purposes) ii. Property distribution incident to a divorce is not tax-free for federal tax purposes (although it is for NYS tax purposes) iii. Distribution of retirement plans are not tax-free. Distribution of retirement plans are controlled by ERISA. 47

86

87

88

89

90

91

92 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF X Index/Docket No.: Plaintiff, / against TEMPORARY MAINTENANCE GUIDELINES WORKSHEET (See Attached Instructions on page 8) Defendant X This Worksheet is submitted by Plaintiff Defendant. NOTE: If you and your spouse have entered into an agreement about temporary maintenance, check the box below and submit a copy of the agreement to the court along with the completed Worksheet. Plaintiff and Defendant have entered into a written agreement about maintenance. 1. ENTER INCOME OF PARTIES A. Enter Plaintiff s Annual Income from Line 17 of Appendix A...$ B. Enter Defendant s Annual Income from Line 17 of Appendix A...$ NOTE: If you do not know your spouse s income write unknown. 2. DETERMINE WHO IS THE PAYOR AND WHO IS THE PAYEE A. Enter the higher of Lines 1A and 1B. The person with the higher income is the PAYOR....$ B. Enter the lower of Lines 1A and 1B. The person with the lower income is the PAYEE....$ continued WORKSHEET 1

93 3. CALCULATE GUIDELINE AWARD ON INCOME UP TO AND INCLUDING $524,000 1 A. Check the box to indicate how you made the calculation: Use the Online Calculator available at: and enter the amount from Line 12 of the Online Calculator in Line 3B below OR Use Appendix B to make the calculation and enter the amount from Line 16 of Appendix B in Line 3B below B. The Guideline Award of Temporary Maintenance (based on Payor s Income up to $524,000) is:...$ 2 I have carefully read this statement and attest that it is true and accurate to the best of my knowledge. Signature of party who presented this worksheet Subscribed and Sworn to before me Print or type name on NOTARY PUBLIC Signature of Attorney, if any Print or type name Attorney s Address Attorney s Telephone Number NOTES: 1 Temporary Maintenance Award on Portion of Payor s Income above $524,000. If the Payor's income exceeds $524,000, the court considers 19 factors set forth in Section 236 Part B (5-A) (C)(2) (A) of the Domestic Relations Law in determining any additional temporary maintenance based on the income above $524,000. See Appendix C for a list of the 19 factors. 2 Unjust or Inappropriate Awards: If a party believes that the Guideline Award of Temporary Maintenance is unjust or inappropriate, the party can ask the court to vary the award based on 17 factors set forth in Section 236 Part B (5-A)(E)(1) of the Domestic Relations Law. See Appendix D for a list of the 17 factors. WORKSHEET 2

94 APPENDIX A TO TEMPORARY MAINTENANCE GUIDELINES WORKSHEET Itemization of Income and Deductions I. GROSS INCOME (Annual Figures Only) PLAINTIFF DEFENDANT 1. Gross (total) income (as should have been or should be reported in most recent federal income tax return)... $ $ 2. Investment income (not already included in item 1) reduced by amount expended in connection with the investments Income or compensation from the following sources (not already included in items 1 or 2)... a. deferred compensation... b. worker's compensation... c. disability benefits... d. unemployment insurance benefits... e. social security benefits... f. veterans benefits... g. pensions and retirement benefits... h. fellowships and stipends... i. annuity payments Former income or resources voluntarily reduced Self-employment deductions (not already included in items 1 or 2)... a. depreciation deduction... b. entertainment and travel allowances Other Income not already listed above (including but not limited to: Income from non-income producing assets; employment perks and reimbursed expenses to the extent that they reduce personal expenses; fringe benefits as a result of employment; money, goods and services provided by friends and relatives;) GROSS ANNUAL INCOME (Add lines 1-6)...$ $ PLAINTIFF DEFENDANT APPENDIX A 3

95 II. DEDUCTIONS (Annual Figures Only) PLAINTIFF DEFENDANT 8. Unreimbursed employee business expenses (except to extent expenses reduce personal expenditures)...$ $ 9. Alimony or maintenance actually paid to non-party spouse pursuant to court order or agreement Alimony or maintenance actually paid or to be paid to party-spouse pursuant to court order or agreement (but only if child support will increase when alimony or maintenance ends Child support actually paid pursuant to court order or agreement for non-party child Public assistance Supplemental social security Income N.Y.C. or Yonkers taxes Federal Insurance Contributions Act (FICA) taxes TOTAL ANNUAL DEDUCTIONS (Add lines 8-15)...$ $ III. NET INCOME 17. NET ANNUAL INCOME (Subtract line 16 from line 7 and insert on lines 1A and 1B of the Worksheet)...$ $ PLAINTIFF DEFENDANT APPENDIX A 4

96 APPENDIX B TO TEMPORARY MAINTENANCE GUIDELINES WORKSHEET Calculation of Guideline Amount Of Temporary Maintenance Up To And Including $524,000, and Adjustment for Low Income, If Any I. BASIC CALCULATION STEP A: 1. Enter Payor's income from Line 2A on page 1 of the Worksheet: If this amount is greater than $524,000, enter $524, Enter Payee's income from Line 2B on page 1 of the Worksheet... STEP B: 3. Multiply Line 1 (Payor s Income) by 30% Multiply Line 2 (Payee s Income) by 20% Subtract Line 4 from Line 3... STEP C: 6. Add Line 2A (Payor s Income) and Line 2B (Payee s Income) Multiply 40% of Line Subtract Line 2 from Line 7... STEP D: 9. Enter the lower of Line 8 and Line 5, but if Line 8 is less than or equal to zero, enter zero... II. THE LOW INCOME ADJUSTMENT STEP E: (Determine if the low income adjustment applies) 10. Enter payor s income from Line Enter calculated guideline amount from Line Subtract Line 11 from Line If Line 12 is greater than $15,080, there is no low income adjustment. Enter the amount from Line 9 in Line 16. If Line 12 is less than $15,080, there is a low income adjustment. Go to Step F to calculate the amount of the award. STEP F: (Determine the amount of the award after the low income adjustment) 13. Enter payor s income from Line Enter $15,080 (the self support reserve) Subtract Line 14 from Line If the amount on Line 15 is greater than zero, enter that amount in Line 16. If the amount on Line 15 is less than or equal to zero, enter zero in Line 16. III. AWARD 16. Enter the amount as directed in either Step E or Step F, whichever applies. Also enter this amount in Line 3B of the Worksheet...$ APPENDIX B 5

97 APPENDIX C TO TEMPORARY MAINTENANCE GUIDELINES WORKSHEET Income Exceeds $524,000: For the Payor's Income In Excess Of $524,000, The Court Shall Determine Any Additional Guideline Amount of Temporary Maintenance Through Consideration of the Following Factors: 1. The Length of the Marriage; 2. The Substantial Differences in the Incomes of the Parties; 3. The Standard of Living of the Parties Established During the Marriage; 4. The Age and Health of the Parties; 5. The Present and Future Earning Capacity of the Parties; 6. The Need of One Party to Incur Education or Training Expenses; 7. The Wasteful Dissipation of Marital Property; 8. The Transfer or Encumbrance Made in Contemplation of a Matrimonial Action Without Fair consideration; 9. The Existence and Duration of a Pre-marital Joint Household or a Pre-divorce Separate Household; 10. Acts by One Party Against Another That Have Inhibited or Continue to Inhibit a Party's Earning Capacity or Ability to Obtain Meaningful Employment. Such Acts Include but Are Not Limited to Acts of Domestic Violence as Provided in Section Four Hundred Fifty-Nine-A of the Social Services Law; 11. The Availability and Cost of Medical Insurance for the Parties; 12. 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 or Ability to Obtain Meaningful Employment; 13. The Inability of One Party to Obtain Meaningful Employment Due to Age or Absence from the Workforce; 14. The Need to Pay for Exceptional Additional Expenses for the Child or Children, Including, but Not Limited To, Schooling, Day Care and Medical Treatment; 15. The Tax Consequences to Each Party; 16. Marital Property Subject to Distribution Pursuant to Subdivision Five of this Part; 17. The Reduced or Lost Earning Capacity of the Party Seeking Temporary Maintenance as a Result of Having Foregone or Delayed Education, Training, Employment or Career Opportunities During the Marriage; 18. The Contributions and Services of the Party Seeking Temporary Maintenance as a Spouse, Parent, Wage Earner and Homemaker and to the Career or Career Potential of the Other Party; and 19. Any Other Factor Which the Court Shall Expressly Find to Be Just and Proper. APPENDIX C 6

98 APPENDIX D TO TEMPORARY MAINTENANCE GUIDELINES WORKSHEET Adjustment of Award The court may adjust an award if it finds the award is unjust or inappropriate based on consideration of the following factors: 1. The Standard of Living of the Parties Established During the Marriage; 2. The Age and Health of the Parties; 3. The Earning Capacity of the Parties; 4. The Need of One Party to Incur Education or Training Expenses; 5. The Wasteful Dissipation of Marital Property; 6. The Transfer or Encumbrance Made in Contemplation of a Matrimonial Action Without Fair Consideration; 7. The Existence and Duration of a Pre-marital Joint Household or a Pre-divorce Separate Household; 8. Acts by One Party Against Another That Have Inhibited or Continue to Inhibit a Party s Earning Capacity or Ability to Obtain Meaningful Employment. Such Acts Include but Are Not Limited to Acts of Domestic Violence as Provided in Section Four Hundred Fifty-nine-a of the Social Services Law; 9. The Availability and Cost of Medical Insurance for the Parties; 10. 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 or Ability to Obtain Meaningful Employment; 11. The Inability of One Party to Obtain Meaningful Employment Due to Age or Absence from the Workforce; 12. The Need to Pay for Exceptional Additional Expenses for the Child or Children, Including, but Not Limited To, Schooling, Day Care and Medical Treatment; 13. The Tax Consequences to Each Party; 14. Marital Property Subject to Distribution Pursuant to Subdivision Five of this Part; 15. The Reduced or Lost Earning Capacity of the Party Seeking Temporary Maintenance as a Result of Having Foregone or Delayed Education, Training, Employment or Career Opportunities During the Marriage; 16. The Contributions and Services of the Party Seeking Temporary Maintenance as a Spouse, Parent, Wage Earner and Homemaker and to the Career or Career Potential of the Other Party; and 17. Any Other Factor Which the Court Shall Expressly Find to Be Just and Proper. APPENDIX D 7

99 Instructions for Temporary Maintenance Guidelines Worksheet SECTION 1 Complete Income Computations for Plaintiff and Defendant in Appendix A. Insert the amounts from Appendix A, Line 17 on Lines 1A and 1B of the worksheet. If you do not know your spouse s income, write the word unknown in the relevant section. SECTION 2 Determine whether Plaintiff or Defendant has greater income; that spouse will be called the payor and the other spouse will be called the payee. Enter amounts on Lines 2A and 2B of Section 2 of the Worksheet SECTION 3 Calculate the guideline amount of temporary maintenance on income up to an including $524,000, and any low income adjustment, by either of the following methods: use the court s online calculator available at or make the calculations yourself on Appendix B to the worksheet Check the applicable box on the Worksheet that indicates which method you chose to make the calculations Enter the result of your calculations from Line 12 of the online calculator or Line 16 of Appendix B on Line 3B of the Worksheet. This is the guideline award of temporary maintenance on income up to and including $524,000 after adjustment for low income, if any After you have completed Sections 1-3 of the Worksheet, sign your name on Page 2 of the Worksheet before a notary public and print your name below the line. If you are represented by an attorney, the attorney should also sign. Then submit the original of the Worksheet to the court. Have a copy served on your spouse and keep a copy for yourself. Attach copies of your most recent tax returns and W-2 statements if you have not already submitted them with your Net Worth Statement. INSTRUCTIONS 8

100 Briana Denney is a partner in the law firm of Newman & Denney P.C., and represents clients in all stages of matrimonial and family law negotiation and litigation, including the drafting of prenuptial and postnuptial agreements, divorce, child custody and visitation, and enforcement of divorce agreements and judgments. Prior to private practice, she worked for a matrimonial judge in New York Supreme Court. She was formerly co-chair of the New York Women's Bar Matrimonial and Family Law Committee and is an active member of the New York City Bar Matrimonial Committee, providing monthly matrimonial law updates. She is also a member of the Interdisciplinary Forum on Mental Health and Family Law. In addition to bar associations, she volunteers her time by providing pro bono legal services through the NYWBA Pro Bono Program. Briana grew up in Arizona and attended the University of Arizona, where she earned her B.A. degree with honors. She moved from Boston to attend the City University of New York where she earned her J.D.

101 Intermediate Concepts in Drafting Contracts Presented by Vincent R. Martorana Reed Smith LLP For New York County Lawyers Association August 9, 2013 Supplemental Outline US_ACTIVE VRMARTOR

102 INDEX TOPIC PAGE # I. Recap of Basic Concepts... 1 II. More-advanced concepts... 1 A. Conditional Language Definition of a Condition Components Do not use shall If vs. To the extent that... 2 B. Language of Exception and Subordination Identifying Language Localized Exceptions vs. Broad Inoculations... 4 a. Location (or potential location) of trumping language... 4 b. Scope of trumping language Trailing Exceptions Implied Exceptions Unless the context otherwise requires... 5 C. The Concept of Deemed Function of deemed Use of the Passive Voice not [be] deemed to vs. [be] deemed not to i -

103 TOPIC PAGE # D. References to Time Function Start and End Points Avoid within... 6 E. And / Or Ambiguities And Or... 7 III. Legal Archaisms... 9 A. that vs. which vs., which... 9 B. Table of Legal Archaisms... 9 IV. Attorney Bio: Vincent R. Martorana... 9 Exhibit A: Exhibit B: Exhibit C: Summary Tables: Anatomy of a Typical Contract and of Categories of Language Fixing Words and Phrases from Ye Olde Contracte Attorney Bio: Vincent R. Martorana - ii -

104 Notice; Disclaimer These supplemental materials and the presentation related to these supplemental materials (these supplemental materials and such presentation, collectively, the Materials ) are intended to constitute a continuing legal education course and are intended for an audience of attorneys. Neither the Materials, nor any portion thereof, is intended for any other purpose or for anyone other than an attorney. Neither the Materials nor any portion thereof constitutes legal advice. Neither the Materials nor any portion thereof is permitted to be distributed without the express written consent of Vincent R. Martorana. - iii -

105 I. RECAP OF BASIC CONCEPTS OUTLINE See Exhibit A for summary tables regarding the structure of a typical contract and of the categories of contract-drafting language. II. MORE-ADVANCED CONCEPTS Example: A. Conditional Language 1. Definition of a Condition. A condition is an uncertainty upon which the applicability of certain contract language depends. 2. Components. a. Conditional clause b. Subordinator (e.g., if, as long as, so long as, until, unless) c. Matrix clause If the Seller becomes aware that a representation contained in Article 3 is inaccurate, then the Seller shall promptly notify the Buyer thereof. o Subordinator, conditional clause, matrix clause Practice Tip: Use then to create an If, then structure; by doing so, you ll clearly delineate the conditional clause and the matrix clause. Practice Tip: Avoid using provided that to create a condition. Depending upon the context, it can be unclear whether provided that is being used to create a condition, limitation, addition, or exception. 3. Do not use shall. Do not use shall in the conditional clause

106 Example: If the Borrower shall be in default, then the Interest Rate will increase to the Default Rate by virtue thereof. If the Borrower defaults, then the Interest Rate will increase to the Default Rate by virtue thereof. 4. If vs. To the extent that. a. If is a binary concept; the language in the matrix clause will apply to its full extent if the language in the conditional clause is true. b. To the extent that is a sliding scale concept; it implies that the language in the matrix clause will apply to varying degrees. Practice Tip. Don t use to the extent that for conditional clauses expressing a binary concept. To the extent that the Company is a Delaware corporation, the Company shall file all applicable reports required by Delaware state law

107 B. Language of Exception and Subordination 1. Identifying Language. except subject to Ernie shall not annoy Bert, except that Ernie is permitted to annoy Bert on Christmas morning. Section 1. Subject to Section 2, Ernie shall not annoy Bert. Section 2. Ernie is permitted to annoy Bert on Christmas morning. notwithstanding except as otherwise provided in Ernie shall not annoy Bert. Notwithstanding the immediately foregoing sentence, Ernie is permitted to annoy Bert on Christmas morning. Except as otherwise provided in the Lease, Ernie shall not annoy Bert. Practice Tip: You don t need to use both subject to and notwithstanding to convey a single subordinated concept

108 2. Localized Exceptions vs. Broad Inoculations. a. Location (or potential location) of trumping language Examples: Local Remote Each Party shall not make any public statements with respect to the Transaction; except that each Party is permitted to make internal announcements to their respective employees regarding the Transaction. Subject to Section 9.5, each Party shall not make any public statements with respect to the Transaction. Except as otherwise permitted hereunder, each Party shall not make any public statements with respect to the Transaction. Except as otherwise permitted under the Confidentiality Agreement, each Party shall not make any public statements with respect to the Transaction. Except as the Parties have otherwise agreed or might otherwise agree, each Party shall not make any public statements with respect to the Transaction. b. Scope of trumping language Example: Subject to Section 9.5, each Party shall not make any public statements with respect to the Transaction. Length of trumping language Short Long Section 9.5. Each Party is permitted to disclose the Transaction to Bob. Section 9.5. Each Party is permitted to disclose the Transaction under the following 37 circumstances: Specificity/Vagueness of trumping language Specific Vague Section 9.5. Each Party is permitted to disclose to Sonny and Cher the existence of the Merger Agreement, the identity of the Parties, and the Purchase Price. Section 9.5. Each Party is permitted to disclose the Transaction to the extent that it is reasonably necessary to do so

109 Practice Tip: If possible, take a localized approach. Examples: 3. Trailing Exceptions. Be clear how far back a trailing exception reaches. The Seller is not obligated to indemnify a Buyer Indemnitee in respect of a Claim: (i) to the extent that Losses in respect of all Claims exceed $1,000,000; and (ii) except to the extent that the amount of Losses suffered by the Buyer in respect of such Claim exceeds $50,000; except that the foregoing does not apply with respect to Claims based upon breaches of the Seller s obligations set forth in Section 6.5. The Seller is not obligated to indemnify a Buyer Indemnitee in respect of a Claim: (i) to the extent that Losses in respect of all Claims exceed $1,000,000; and (ii) except to the extent that the amount of Loss suffered by the Buyer in respect of such Claim exceeds $50,000; except that the foregoing clauses (i) and (ii) do not apply with respect to Claims based upon breaches of the Seller s obligations set forth in Section Implied Exceptions. Don t imply an exception in circumstances in which there is no exception. Doing so implies a prohibition. Example: During the Post-Closing Period, the Buyer shall not sell the Assets to any Competing Enterprise; except that, after the Post-Closing Period, the Buyer is permitted to sell the Assets to the Key Vendors. 5. Unless the context otherwise requires. Do not use unless the context otherwise requires ; that phrase is ambiguous. C. The Concept of Deemed 1. Function of deemed. Creates (or potentially creates) a legal fiction for purposes of a contract (or portion thereof)

110 Examples: All apples are deemed to be vegetables. If Jack passes the bar exam, then he will thereby be deemed to be worthy of a job at a big law firm. 2. Use of the Passive Voice. It is acceptable to use the passive voice to express a deemed concept. 3. not [be] deemed to vs. [be] deemed not to. These two expressions have different effects. D. References to Time a. not [be] deemed to negates a deemed rule. b. [be] deemed not to is a deemed rule that expresses that something does not possess a certain quality or characteristic. 1. Function. References to time could be used in a contract: (a) to reference the date of something or to give a date to something; (b) to specify a point in time; (c) to specify the beginning or end of a time period; or (d) to apportion a quantity per unit of time. 2. Start and End Points. Be clear as to when a referenced time period starts and ends. Consider including a time of day of a referenced date. Practice Tip: Consider whether a time zone should be referenced. Example: 3. Avoid within. Avoid using within when referencing a time period. Within might create ambiguity as to whether a referenced time period includes the end point referenced and/or whether the referenced time period is meant to refer to the period before or after a specified point in time. The term of this Agreement ends at 5 p.m. New York time on August 9, 2013; except that if, within 10 days of a Major Event, the Company - 6 -

111 provides notice of termination of this Agreement to the Consultant, then this Agreement will thereby terminate. E. And / Or Ambiguities 1. And. a. General. And concerns a set in its totality. b. Potential Ambiguity. Depending upon the context, it might be unclear whether the members of an AND SET are acting, being acted upon, or to be considered (1) collectively only, (2) separately only, or (3) either collectively or separately. Example of distributive ambiguity with and : i. Whether there is ambiguity depends upon (among other things) the category of language being used and whether the members of the AND SET are the subject or the direct object of the sentence. Transfers and Loans made in contravention of this Agreement will be void. o Does made in contravention of this Agreement modify (i) Transfers and Loans or (ii) Loans only? 2. Or. a. General. Or concerns a choice between members of a set. b. Potential Ambiguity. Depending upon the context, it might be unclear whether the members of an OR SET are acting, being acted upon, or to be considered (1) exclusively or (2) inclusively. i. Whether there is ambiguity depends upon (among other things) the category of language being used and whether the - 7 -

112 members of the OR SET are subject or the direct object of the sentence. ii. The exclusive or. If or is read to be an exclusive or, then that interpretation implies that the selection of one member of the OR SET precludes the selection of each other member of the OR SET. Examples: Caroline shall not eat any dessert, except that Caroline is permitted to eat for dessert ice cream or cake. o o Inclusive Or : Caroline shall not eat any dessert, except that Caroline is permitted to eat for dessert ice cream, cake, or both ice cream and cake. Exclusive Or : Caroline shall not eat any dessert, except that Caroline is permitted to eat for dessert ice cream or cake, but not both ice cream and cake. Moe shall not terminate any employees; except that Moe is permitted to terminate employees who are (a) knuckleheads or (b) wise guys. o In this instance, the attributes of the direct object might overlap. There is ambiguity as to whether Moe can terminate knuckleheadwise guys. And there is added ambiguity as to whether the or is inclusive or exclusive (i.e., whether Moe can terminate knuckleheads only, wise guys only, or both). Practice Tip: Any given use of and or or can give rise to one or more ambiguities. If there is uncertainty, ask yourself: And : (1) collectively; (2) separately; or (3) either collectively or separately? Or : inclusive or exclusive? - 8 -

113 III. LEGAL ARCHAISMS A. that vs. which vs., which 1. That. That is restrictive. It limits the scope of a clause. 2., which., which is descriptive. It describes a clause. 3. which [no preceding comma]. When used to modify a clause, which [no preceding comma] is ambiguous. Example: Suppose I have 20 books in my library and I ve read 15 of them. I ll give you all the books in my library that I ve read. You ll get 15 books. I ll give you all the books in my library, which I ve read. You ll get 20 books. I ll give you all the books in my library which I ve read. It s unclear how many books you ll get. Practice Tip: If there is uncertainty between using that and using which, that is usually the correct choice. B. Table of Legal Archaisms and Suitable Replacements See Exhibit B for a list of common legal archaisms from Ye Olde Contracte and suitable replacements. IV. ATTORNEY BIO: VINCENT R. MARTORANA My attorney bio is attached as Exhibit C. Please feel free to contact me if you have any questions or comments. Please also visit my blog, Drafting Points, at

114 Exhibit A Summary Tables: Anatomy of a Typical Contract and of Categories of Language

115 Anatomy of a Typical of a Contract Preamble Type of agreement, date of agreement, parties (name, jurisdiction, entity type) Save descriptive relationship between the parties for the recitals or reps Recitals Provide background, context, evidence of intent Only area of a contract that might address why? Do not include operative provisions But ok to define terms Body Main part of contract Preceded by The Parties hereby agree as follows: (or something similar) Contains categories of language Signature Pages Need to get to an individual Attachments (Exhibits, Schedules, Annexes, Appendices) Practical considerations: obtaining signature pages in advance; holding signature pages in escrow ; correct signature blocks; footers; warehousing/following up after closing Form part of the contract Beware of unintended rights and obligations

116 Categories of Language Category Description Think Example Notes Language of Performance Addresses actions being taken by the parties by virtue of the contract hereby Willie hereby transfers to Charlie all of his rights, title, and interest in and to the Chocolate Factory. Use the active voice Don t use shall Obligation Addresses what a party has to do pursuant to the contract shall hereby has/have a duty to Charlie shall arrive at the Chocolate Factory no later than 11 a.m. on Friday. Don t use will (which conveys futurity) Don t use must (save that for conditions and other contexts) Don t try to impose obligations on third parties Prohibition Addresses what a party is prohibited from doing pursuant to the contract shall not hereby has/have a duty not to Willie shall not unduly pressure children to run his Chocolate Factory. Discretionary Language Addresses what a party is permitted to do under a contract is/are permitted to Willie shall not unduly pressure children to run his Chocolate Factory, except that Willie is permitted to do so with respect to any child who passes the Test. Use discretionary language as an exception to a prohibition; no naked discretion may is/are permitted to or might possibly

117 Category Description Think Example Notes Language of Declaration: Representation Statement made by a party of what was, is, or will be true to induce the other party to enter into the contract Assertion of truth Charlie represents to Willie that he obeyed all the rules of the Chocolate Factory. Need not be within control or knowledge of representing party Should reps concerning future facts be rephrased as obligations? Can t breach a rep Language of Declaration: Acknowledgment Statement that a party is accepting as true Acceptance as truth Charlie acknowledges that Willie pays his workers in bars of chocolate, rather than in generally recognized currency. Aligns intentions; potential estoppel Don t mix with other categories of language Language of Policy Addresses rules governing an event or circumstance Addresses the scope, meaning, or during of language, a provision, or a contract The rules of the contract Chocolate Factory means the factory on the plot of land located at 123 Gene Wilder Way, Skokie, IL 60076, United States. Don t use shall Use present tense for policies that apply upon effectiveness of the contract

118 Exhibit B Fixing Words and Phrases from Ye Olde Contracte

119 Fixing Words and Phrases from Ye Olde Contracte Ye Olde Contracte 9 th day of August, 2013 August 9, 2013 Replace With by and between W I T N E S S E T H between delete WHEREAS A. B. etc. therefore NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows: which do hereby does hereby undertakes to is obligated to agrees to if not in recitals, delete The Parties hereby agree as follows: that or, which (usually, depending upon the context) hereby hereby shall shall shall

120 Ye Olde Contracte covenants and agrees to shall be obligated to shall shall Replace With may elect to; may has the option to telecopier, telex is/are permitted to is permitted to facsimile One Hundred Fifty Seven Dollars ($157) $157 thirty (30) days said vehicle null and void terms and conditions in any regard whatsoever for the avoidance of doubt it being understood in the event that IN WITNESS WHEREOF IN WITNESS WHEREOF, the parties hereto have set their respective hands and seals as of the day and year first above written. 30 days the vehicle, that vehicle, such vehicle, the Vehicle void terms delete consider clarifying rule and deleting this text consider clarifying rule and deleting this text if delete The Parties are signing this Agreement as of the Effective Date.

121 Exhibit C Attorney Bio: Vincent R. Martorana

122 Intermediate Concepts in Drafting Contracts August 9, 2013 Presented by Vincent R. Martorana for New York County Lawyers Association Intermediate Concepts in Drafting Contracts This presentation and the supplemental materials related to this presentation (this presentation and such materials, collectively, the Materials ) are intended to constitute a continuing legal education course and are intended for an audience of attorneys. Neither the Materials, nor any portion thereof, is intended for any other purpose or for anyone other than an attorney. Neither the Materials nor any portion thereof constitutes legal advice. Neither the Materials nor any portion thereof is permitted to be distributed without the express written consent of Vincent R. Martorana. 2 Intermediate Concepts in Drafting Contracts Summary of Presentation Recap of Basic Concepts More-advanced Concepts Active Voice vs. Passive Voice Conditional Language Language of Exception and Subordination The Concept of Deemed References to Time And / Or Ambiguities Legal Archaisms 3 1

123 Intermediate Concepts in Drafting Contracts Recap of Basic Concepts Recap of Basic Concepts 4 Intermediate Concepts in Drafting Contracts Recap of Basic Concepts Preamble Type of agreement, date of agreement, parties (name, jurisdiction, entity type) Save descriptive relationship between the parties for the recitals or reps Recitals Provide background, context, evidence of intent Only area of a contract that might address why? Do not include operative provisions But ok to define terms (but reference defined terms in operative provisions) Body Main part of contract Preceded by The Parties hereby agree as follows: (or something similar) Contains categories of language 5 Intermediate Concepts in Drafting Contracts Recap of Basic Concepts Category Description Think Example Notes Language of Performance Addresses actions being taken by the parties by virtue of the contract hereby Willie hereby transfers to Charlie all of his rights, title and interest in and to the Chocolate Factory. Use the active voice Don t use shall Language of Obligation Addresses what a party has to do pursuant to the contract shall hereby has/have a duty to Charlie shall arrive at the Chocolate Factory no later than 11 a.m. on Friday. Don t use will (which conveys futurity) Don t use must (save that for conditions and other contexts) Don t try to impose obligations on third parties Language of Prohibition Addresses what a party is prohibited from doing pursuant to the contract shall not hereby has/have a duty not to Willie shall not unduly pressure children to run his Chocolate Factory. 6 2

124 Intermediate Concepts in Drafting Contracts Recap of Basic Concepts Category Description Think Example Notes Language of Discretion Addresses what a party is permitted to do under a contract is/are permitted to Willie shall not unduly pressure children to run his Chocolate Factory, except that Willie is permitted to do so with respect to any child who passes the Test. Use language of discretion as an exception to language of prohibition; no naked discretion may is/are permitted to or might possibly? Language of Declaration: Representations Statement made by a party of what was, is or will be true to induce the other party to enter into the contract Assertion of truth Charlie represents to Willie that he obeyed all the rules of the Chocolate Factory. Need not be within control or knowledge of representing party Should reps concerning future facts be rephrased as obligations? Can t breach a rep 7 Intermediate Concepts in Drafting Contracts Recap of Basic Concepts Category Description Think Example Notes Language of Declaration: Acknowledgments Statement that a party is accepting as true Acceptance as truth Charlie acknowledges that Willie pays his workers in bars of chocolate, rather than in generally recognized currency. Aligns intentions; potential estoppel Don t mix with other categories of language Language of Policy Addresses rules governing an event or circumstance Addresses the scope, meaning or during of language, a provision or a contract The rules of the contract Chocolate Factory means the factory on the plot of land located at 123 Gene Wilder Way, Skokie, IL 60076, United States. Don t use shall Use present tense for policies that apply upon effectiveness of the contract 8 Intermediate Concepts in Drafting Contracts More-advanced Concepts > Conditional Language Conditional Language 9 3

125 Intermediate Concepts in Drafting Contracts More-advanced Concepts > Conditional Language Condition: An uncertainty upon which the applicability of certain contract language depends. Components: Conditional clause (ask: Is this true? ) Subordinator (e.g., if, as long as, so long as, until, unless) Matrix clause (consequence) 10 Intermediate Concepts in Drafting Contracts More-advanced Concepts > Conditional Language Examples Key: Conditional Clause Matrix Clause Subordinator If the Seller becomes aware that a representation contained in Article 3 is inaccurate, then the Seller shall promptly notify the Buyer thereof. Unless the Seller materially breaches a covenant, the Buyer shall use its best efforts to consummate the Transactions. The Buyer shall use its best efforts to consummate the Transactions unless the Seller materially breaches a covenant. The Borrower will be deemed to be in default until it has provided the lender notice otherwise. The Company shall vigorously defend itself in the Lawsuit as long as it has more than $1 million in Excess Cash. 11 Intermediate Concepts in Drafting Contracts More-advanced Concepts > Conditional Language If, then Structure If [conditional clause], then [matrix clause] Example: If Keanu masters the art of acting dumbfounded, then the Producers shall hire him to play the lead role in The Matrix. 12 4

126 Intermediate Concepts in Drafting Contracts More-advanced Concepts > Conditional Language DON T USE SHALL IN THE CONDITIONAL CLAUSE Example 1: If the Borrower shall be in default, then the Interest Rate will increase by virtue thereof. If the Borrower is at any time in default, then the Interest Rate will increase by virtue thereof. If the Borrower defaults, then the Interest Rate will increase by virtue thereof. 13 Intermediate Concepts in Drafting Contracts More-advanced Concepts > Conditional Language DON T USE SHALL IN THE CONDITIONAL CLAUSE Example 2: The Buyer s obligation to consummate the transactions contemplated by this Agreement is subject to the satisfaction (or waiver in writing by the Buyer) of the following conditions: the Seller shall have has performed and complied in all material respects with all obligations required by this Agreement to be performed or complied by the Seller at or prior to the Closing; the Stockholders shall have have consented to the consummation of the Transactions; and no ambiguous use of the word shall shall have has been used in this Agreement or in any Ancillary Agreement. 14 Intermediate Concepts in Drafting Contracts More-advanced Concepts > Conditional Language If vs. to the extent that If is a binary concept; the language in the matrix clause will apply to its full extent if the language in the conditional clause is true. To the extent that is a sliding scale concept; it implies that the language in the matrix clause will apply to varying degrees. 15 5

127 Intermediate Concepts in Drafting Contracts More-advanced Concepts > Conditional Language If vs. to the extent that Compare: If Paulie receives Profits from the Florida Operations, then he shall reimburse Silvio for costs that Silvio incurs with respect to the New Jersey Operations. To the extent that Paulie receives Profits from the Florida Operations, he shall reimburse Silvio for costs that Silvio incurs with respect to the New Jersey Operations. This probably works, but it sounds a bit awkward; it doesn t fit the traditional If, then structure. Paulie shall reimburse Silvio for NJO Costs to the extent that Paulie receives Profits from the Florida Operations. 16 Intermediate Concepts in Drafting Contracts More-advanced Concepts > Conditional Language If vs. to the extent that Silvio shall get on the flight to Florida to the extent that Tony tells Silvio to get on the flight to Florida. This phrasing doesn t really work because the sentence uses a sliding scale subordinator with a binary conditional clause. Silvio: Ok, boss. I ll get on the flight to the extent that you tell me to get on the flight. Tony: Let s be clear: If I tell you to get on that flight, then you ll get on that flight. 17 Intermediate Concepts in Drafting Contracts More-advanced Concepts > Conditional Language Generally, avoid provided that to create a condition. provided that can (arguably) be used to qualify the language that precedes it in several different respects. Condition: The Closing must occur on August 9, 2013; provided that all of the closing conditions set forth in Article 10 have been satisfied. Limitation: The Closing must take place at Reed Smith s New York office promptly after the Effective Date; provided that the Closing must occur no later than August 9, Addition: A Transfer of the Shares means any sale of the Shares; provided that a Transfer of the Shares includes any pledge of the Shares. Exception: The Stockholder shall not Transfer the Shares; provided that the Stockholder is permitted to pledge the Shares to an Approved Bank. 18 6

128 Intermediate Concepts in Drafting Contracts More-advanced Concepts > Language of Exception and Subordination Language of Exception and Subordination 19 Intermediate Concepts in Drafting Contracts More-advanced Concepts > Language of Exception and Subordination Identifying Language except subject to notwithstanding except as otherwise provided in Ernie shall not annoy Bert, except that Ernie is permitted to annoy Bert on Christmas morning. Section 1. Subject to Section 2, Ernie shall not annoy Bert. Section 2. Ernie is permitted to annoy Bert on Christmas morning. Ernie shall not annoy Bert. Notwithstanding the foregoing sentence, Ernie is permitted to annoy Bert on Christmas morning. Except as otherwise provided in the Lease, Ernie shall not annoy Bert. 20 Intermediate Concepts in Drafting Contracts More-advanced Concepts > Language of Exception and Subordination Identifying Language Note: You don t need to use both subject to and notwithstanding for the same subject matter. Section 1. Subject to Section 2, Ernie shall not annoy Bert. Section 2. [Notwithstanding Section 1,] Ernie is permitted to annoy Bert on Christmas morning. 21 7

129 Intermediate Concepts in Drafting Contracts More-advanced Concepts > Language of Exception and Subordination Localized Exceptions vs. Broad Inoculations Exceptions to rules can be very local (i.e., discrete and specific) or they can be broad (i.e., wide-ranging with respect to applicability and subject matter) Two Factors: (1) Location (or Potential Location) of Trumping Language (2) Scope of Trumping Language 22 Intermediate Concepts in Drafting Contracts More-advanced Concepts > Language of Exception and Subordination Location (or Potential Location) of Trumping Language Local Each Party shall not make any public statements with respect to the Transaction; except that each Party is permitted to make internal announcements to their respective employees regarding the Transaction. Subject to Section 9.5, each Party shall not make any public statements with respect to the Transaction. Except as otherwise permitted hereunder, each Party shall not make any public statements with respect to the Transaction. Except as otherwise permitted under the Confidentiality Agreement, each Party shall not make any public statements with respect to the Transaction. Except as the Parties have otherwise agreed or might otherwise agree, each Party shall not make any public statements with respect to Remote the Transaction. 23 Intermediate Concepts in Drafting Contracts More-advanced Concepts > Language of Exception and Subordination Scope of Trumping Language Rule: Subject to Section 9.5, each Party shall not make any public statements with respect to the Transaction. Length of Trumping Language Short Section 9.5. Each Party is permitted to disclose the Transaction to Bob. Long Section 9.5. Each Party is permitted to disclose the Transaction under the following 37 circumstances: Specificity/Vagueness of Trumping Language Specific Section 9.5. Each Party is permitted to disclose to Sonny and Cher the existence of the Merger Agreement, the identity of the Parties and the Purchase Price. Vague Section 9.5. Each Party is permitted to disclose the Transaction to the extent that it is reasonably necessary to do so. 24 8

130 Intermediate Concepts in Drafting Contracts More-advanced Concepts > Language of Exception and Subordination Relative Benefits/Detriments of Localized and Broad Exceptions Localized + Easier to identify applicable trumping language when interpreting contract + Easier to clearly draft the extent to which trumping language applies - Requires knowledge of the precise location of trumping language and subordinate language Broad + Useful if you need language, a provision or an agreement to trump all other agreements between the parties + Can be a time-saver when in the throes of a transaction - Might nullify a rule that you don t want nullified - Whether or the extent to which a rule is trumped might be unclear If possible, take a localized approach. 25 Intermediate Concepts in Drafting Contracts More-advanced Concepts > Language of Exception and Subordination Potential Ambiguities Be clear as to how far back a trailing exception reaches. The Seller is not obligated to indemnify a Buyer Indemnitee in respect of a Claim: (i) to the extent that Losses in respect of all Claims exceed $1,000,000; and (ii) except to the extent that the amount of Losses suffered by the Buyer in respect of such Claim exceeds $50,000; except that the foregoing does not apply with respect to Claims based upon breaches of the Seller s obligations set forth in Section 6.5. What if the Buyer seeks indemnification in respect of a Claim based upon the Seller s breach of one of the Seller s obligations in Section 6.5 that resulted in a Loss to the Buyer of $2,000,000? Does the limitation in clause (i) apply? 26 Intermediate Concepts in Drafting Contracts More-advanced Concepts > Language of Exception and Subordination Potential Ambiguities Be clear as to how far back a trailing exception reaches. The Seller is not obligated to indemnify a Buyer Indemnitee in respect of a Claim: (i) to the extent that Losses in respect of all Claims exceed $1,000,000; and (ii) except to the extent that the amount of Loss suffered by the Buyer in respect of such Claim exceeds $50,000; except that the foregoing clauses (i) and (ii) do not apply with respect to Claims based upon breaches of the Seller s obligations set forth in Section 6.5. The added language makes it clear how far back the trailing exception reaches. 27 9

131 Intermediate Concepts in Drafting Contracts More-advanced Concepts > Language of Exception and Subordination Potential Ambiguities Be clear as to how far back a trailing exception reaches. Each JV Party shall not discuss the Joint Venture with those Competitors that have one or more distribution centers located in Europe. Each JV Party shall not discuss the Joint Venture with those Competitors that had net revenues of more than $30 million in Notwithstanding the foregoing, a JV Party is permitted to discuss the Joint Venture with a Potential Strategic Partner. How far back does Notwithstanding the foregoing relate? Can a JV Party discuss the Joint Venture with a Potential Strategic Partner having net revenues of $40 million in 2008 and that has a distribution center located in Europe? 28 Intermediate Concepts in Drafting Contracts More-advanced Concepts > Language of Exception and Subordination Don t imply an exception in circumstances in which there is no exception. During the Post-Closing Period, the Buyer shall not sell the Assets to any Competing Enterprise; except that, after the Post-Closing Period, the Buyer is permitted to sell the Assets to the Key Vendors. Including the exception does not add anything here: there is nothing otherwise prohibiting the Buyer from selling the Assets after the Post- Closing Period. In fact, including the superfluous language might create an unwanted implication: the Buyer is permitted to sell the Assets after the Post-Closing Period only to Key Vendors that are Competing Enterprises. 29 Intermediate Concepts in Drafting Contracts More-advanced Concepts > Language of Exception and Subordination Potential Ambiguities unless the context otherwise requires The following definitions have the following respective meanings, unless the context requires otherwise. Any reference to any United States, state, or local statute or law is deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. The following rules apply unless the context requires otherwise: The word including is to be construed to mean including, without limitation, unless the context otherwise requires. When does the context otherwise require? Who decides? 30 10

132 Intermediate Concepts in Drafting Contracts More-advanced Concepts > The Concept of Deemed The Concept of Deemed 31 Intermediate Concepts in Drafting Contracts More-advanced Concepts > The Concept of Deemed Deemed Creates (or potentially creates) a legal fiction for purposes of a contract (or portion thereof). Examples All apples are deemed to be vegetables. If Jack passes the bar exam, then he will thereby be deemed to be worthy of a job at a big law firm. A breach of any obligation in Section 6.5 will be deemed a material breach for purposes of this Section In this example, a legal fiction is created for limited purposes. For example, a breach of any obligation in Section 6.5 might be deemed a material breach for purposes of determining whether a party is entitled to indemnification, but not for purposes of determining whether a closing condition has been satisfied. 32 Intermediate Concepts in Drafting Contracts More-advanced Concepts > The Concept of Deemed Passive Voice OK Since the use of deemed applies to language of policy, which all parties are agreeing upon by virtue of entering into the contract, using the passive voice (without a passive agent) to create a legal fiction works, and sounds less awkward than the active voice. Passive Voice: The Net Working Capital Statement will be deemed [by the Parties] to be final on the Determination Date. Active Voice: The Parties deem that the Net Working Capital Statement will be final on the Determination Date

133 Intermediate Concepts in Drafting Contracts More-advanced Concepts > The Concept of Deemed not [be] deemed to [be] deemed not to is/will not be deemed to negates a deemed rule ; it does not create a legal fiction All University of Chicago Law School graduates are deemed to be proponents of applying law and economics when analyzing a legal issue; except that Vinny is not deemed to be such a proponent. (I could still be a proponent. But there s no guaranty of that.) is/will be deemed not to is a deemed rule ; it creates a legal fiction All University of Chicago Law School graduates are deemed to be proponents of applying law and economics when analyzing a legal issue; except that Vinny is deemed not to be such a proponent. (I am definitely not a proponent.) 34 Intermediate Concepts in Drafting Contracts More-advanced Concepts > The Concept of Deemed not [be] deemed to [be] deemed not to The Stellar Student Section 1. The Professor shall give a gold star to each Student who is a Stellar Student. Section 2. Subject to Section 3, a Student who passes the Test will be deemed to be a Stellar Student. Section 3. A student who answers Question 16 incorrectly will not be deemed to be a Stellar Student. [negates the deemed rule set forth in Section 2] Section 4. Notwithstanding Section 2, a Student who spells his or her name incorrectly on the Test will be deemed not to be a Stellar Student. [sets forth a deemed rule ] Student Pass/Fail Q16 Name Stellar? A Pass Correct Correct Yes B Pass Correct Incorrect No C Pass Incorrect Correct Maybe 35 Intermediate Concepts in Drafting Contracts More-advanced Concepts > References to Time References to Time * * By time, I am referring to both dates and times of day

134 Intermediate Concepts in Drafting Contracts More-advanced Concepts > References to Time References to time could be used: To reference the date of something or to give a date to something The Parties are party to a confidentiality agreement, dated August 9, To specify a point in time The term of the Lease commences on August 9, To specify the beginning or end of a time period The Consultant shall not disclose any Confidential Information for five years after the Expiration Date. To apportion a quantity per unit of time The Company shall pay the Employee a monthly incentive fee. 37 Intermediate Concepts in Drafting Contracts More-advanced Concepts > References to Time Time Periods - Use of Prepositions References to time at the start of a period The Company shall perform the Services from August 9, The Company shall perform the Services after August 9, The Company shall perform the Services starting August 9, The Company shall perform the Services commencing on August 9, Intermediate Concepts in Drafting Contracts More-advanced Concepts > References to Time Time Periods - Use of Prepositions References to time at the end of a period The Company shall perform the Services until August 9, The Company shall perform the Services to August 9, The Company shall perform the Services through August 9,

135 Intermediate Concepts in Drafting Contracts More-advanced Concepts > References to Time Time Periods - Use of Prepositions Solutions Be explicit The Company shall perform the Services commencing on (and including) August 9, The Company shall perform the Services through and including August 9, Include a time-of-day reference The Company shall perform the Services commencing at 9 a.m. New York City time on August 9, The Company shall perform the Services until the close of business on August 9, Intermediate Concepts in Drafting Contracts More-advanced Concepts > References to Time More trouble with time periods To validly make an election to purchase the ROFR Shares, a Stockholder (any such Stockholder, an Electing Stockholder ) must provide * an Election Notice to the Selling Stockholder within 10 days after such Electing Stockholder receives the Sale Notice. Suppose the Electing Stockholder received the Sale Notice at 8 a.m. on July 1. Can it provide a valid election notice at 8:30 a.m. on July 11? To validly make an election to purchase the ROFR Shares, a Stockholder (any such Stockholder, an Electing Stockholder ) must provide an Election Notice to the Selling Stockholder within no later than 5 p.m. New York time on the date that is 10 days after the date that such Electing Stockholder receives the Sale Notice. * Assume that the notice provision of this contract specifies the date on which notices will be deemed to have been given. 41 Intermediate Concepts in Drafting Contracts More-advanced Concepts > References to Time More trouble with time periods The term of this Agreement ends at 5 p.m. New York time on August 9, 2014; except that if, within 10 days of a Major Event, the Company provides notice of termination of this Agreement to the Consultant, then this Agreement will thereby terminate. This example contains two layers of ambiguity: (1) is the date on which the Major Event occurs included in the determination of the 10-day period; and (2) does the 10-day period precede or follow the occurrence of the Major Event (or both?)? The term of this Agreement ends at 5 p.m. New York time on August 9, 2014; except that if, no later than 5 p.m. New York time on the date that is within 10 days of after the date on which a Major Event occurs, the Company provides notice of termination of this Agreement to the Consultant, then this Agreement will thereby terminate

136 Intermediate Concepts in Drafting Contracts More-advanced Concepts > References to Time Other considerations Time zones? Lack of clarity can effect references to not only the time of day, but also the date. Better to state, e.g., New York City time rather than EST (EDT?) If only a date is used, do all times of day during that date count? (e.g., if a grantee can exercise an option through and including August 9, 2013, can the grantee exercise the option at 11:59 p.m. on August 9, 2013?) When is the close of business? The close of which party s business? For another day: promptly, simultaneously, contemporaneously, as promptly as practicable, time is of the essence (and we really mean it) 43 Intermediate Concepts in Drafting Contracts More-advanced Concepts > And, Or, and And/Or Ambiguities And, Or, and And/Or Ambiguities 44 Intermediate Concepts in Drafting Contracts More-advanced Concepts > And, Or, and And/Or Ambiguities > And And 45 15

137 Intermediate Concepts in Drafting Contracts More-advanced Concepts > And, Or, and And/Or Ambiguities > And And concerns a set in its totality. The Borrower shall pay all interest and penalties. The Buyer hereby assumes the Subsidiary A Liabilities and the Subsidiary B Liabilities. I ate chicken cutlets and broccoli for dinner last night. In these examples, the function of and is clear. But ambiguities can arise 46 Intermediate Concepts in Drafting Contracts More-advanced Concepts > And, Or, and And/Or Ambiguities > And Potential Ambiguity: Are the members of an AND SET acting, being acted upon, or to be considered (a) collectively only, (b) separately only, or (c) either collectively or separately? 47 Intermediate Concepts in Drafting Contracts More-advanced Concepts > And, Or, and And/Or Ambiguities > And Moe, Larry, and Curly shall visit the construction site. Can Moe, Larry, and Curly satisfy the obligation if they visit the construction site at different times? Moe, Larry, and Curly shall collectively visit the construction site. Moe, Larry, and Curly shall separately visit the construction site. Moe, Larry, and Curly, collectively or separately, shall visit the construction site

138 Intermediate Concepts in Drafting Contracts More-advanced Concepts > And, Or, and And/Or Ambiguities > And Whether there is ambiguity depends upon (among other things) the category of language being used and whether the members of the AND SET are the subject or the direct object of the sentence. 49 Intermediate Concepts in Drafting Contracts More-advanced Concepts > And, Or, and And/Or Ambiguities > And Greg and Eugene shall meet with Michael in the conference room. Greg and Eugene shall collectively meet with Michael in the conference room. Greg and Eugene shall separately meet with Michael in the conference room. Greg and Eugene shall meet with Michael, collectively or separately, in the conference room. Greg shall meet with Eugene and Michael in the conference room. Greg shall meet with Eugene and Michael, collectively, in the conference room. Greg shall meet with Eugene and Michael, separately, in the conference room. Greg shall meet with Eugene and Michael, collectively or separately, in the conference room. 50 Intermediate Concepts in Drafting Contracts More-advanced Concepts > And, Or, and And/Or Ambiguities > And Eugene and Michael represent to Greg that things are running smoothly. No ambiguity here. It doesn t matter whether Eugene and Michael are making the representation collectively or separately. (Remember: joint and several is a liability concept, not a representation concept.) Greg represents to Eugene and Michael that things are running smoothly. No ambiguity here. It doesn t matter whether Greg is making this representation to Eugene and Michael collectively or separately

139 Intermediate Concepts in Drafting Contracts More-advanced Concepts > And, Or, and And/Or Ambiguities > And Distributive Ambiguity Transfers and Loans made in contravention of this Agreement will be void. Does made in contravention of this Agreement modify (i) Transfers and Loans or (ii) Loans only? Transfers will be void and Loans made in contravention of this Agreement will be void. Transfers and Loans, in each case made in contravention of this Agreement, will be void. Transfers made in contravention of this Agreement and Loans made in contravention of this Agreement will be void. 52 Intermediate Concepts in Drafting Contracts More-advanced Concepts > And, Or, and And/Or Ambiguities > Or Or 53 Intermediate Concepts in Drafting Contracts More-advanced Concepts > And, Or, and And/Or Ambiguities > Or Or concerns a choice between members of a set. The Customer shall drink coffee or tea. The Licensee shall not conduct business in Nevada, Iowa, or China. Julia is permitted to invite Sarah or Kate to the party

140 Intermediate Concepts in Drafting Contracts More-advanced Concepts > And, Or, and And/Or Ambiguities > Or Potential Ambiguity: Are the members of an OR SET acting, being acted upon, or to be considered (i) exclusively or (ii) inclusively? 55 Intermediate Concepts in Drafting Contracts More-advanced Concepts > And, Or, and And/Or Ambiguities > Or Exclusive Or the not and implication Caroline shall not eat any dessert, except that Caroline is permitted to eat for dessert ice cream or cake. Inclusive Or : Caroline shall not eat any dessert, except that Caroline is permitted to eat for dessert ice cream, cake, or both ice cream and cake. Exclusive Or : Caroline shall not eat any dessert, except that Caroline is permitted to eat for dessert ice cream or cake, but not both ice cream and cake. 56 Intermediate Concepts in Drafting Contracts More-advanced Concepts > And, Or, and And/Or Ambiguities > Or Whether there is ambiguity depends upon (among other things) the category of language being used and whether the members of the OR SET are subject or the direct object of the sentence

141 Intermediate Concepts in Drafting Contracts More-advanced Concepts > And, Or, and And/Or Ambiguities > Or Moe, Larry, or Curly shall visit the construction site. In this instance, there is arguably no ambiguity. Each of Moe, Larry, and Curly has an obligation to visit the construction site, which will be extinguished when the first one of them visits the site. It is difficult (in my opinion ) to claim that ambiguity arises when or is in the subject of an obligation. It would be difficult to argue that the parties intended to impose the obligation on only one of Moe, Larry, or Curly (and that we did not know which one of them had such obligation). Could a party claim that only one of Moe, Larry, and Curly is entitled to visit the construction site? To do so would be to infer a prohibition. 58 Intermediate Concepts in Drafting Contracts More-advanced Concepts > And, Or, and And/Or Ambiguities > Or Moe shall visit the Construction site or the University. In this instance, it is also difficult to claim that the or is an exclusive or. To do so would be to infer a prohibition (i.e., that Moe is obligated to visit one and prohibited from visiting the other). Moe shall not set foot in New York, except that Moe shall visit the Construction Site or the University. In this instance, perhaps because the or obligation is an exception to a general rule, it is difficult to claim that the or is an inclusive or. 59 Intermediate Concepts in Drafting Contracts More-advanced Concepts > And, Or, and And/Or Ambiguities > Or Moe shall not terminate any employees; except that Moe is permitted to terminate employees who are (a) knuckleheads or (b) wise guys. In this instance, the attributes of the direct object might overlap. There is ambiguity as to whether Moe can terminate knucklehead-wise guys. And there is added ambiguity as to whether the or is inclusive or exclusive (i.e., whether Moe can terminate knuckleheads only, wise guys only, or both). A nifty Venn diagram follows 60 20

142 Intermediate Concepts in Drafting Contracts More-advanced Concepts > And, Or, and And/Or Ambiguities > Or Moe shall not terminate any employees; except that Moe is permitted to terminate employees who are (a) knuckleheads or (b) wise guys. Knuckleheads Knucklehead- Wise Guys Wise Guys (Blue) (Purple) (Pink) Who is Moe permitted to terminate? inclusive or ; attribute overlap ok: Any employee who is either blue, purple, or pink. inclusive or ; attribute overlap not ok: Any employee who is blue and any employee who is pink, but not an employee who is purple. exclusive or ; attribute overlap ok: His choice of either blue/purple employees or pink/purple employees (but not both). exclusive or ; attribute overlap not ok: His choice of either blue employees or pink employees (but not both); he is not permitted to terminate purple employees. 61 Intermediate Concepts in Drafting Contracts More Advanced Concepts > And, Or, and And/Or Ambiguities > And / Or And / Or The virgule 62 Intermediate Concepts in Drafting Contracts More Advanced Concepts > And, Or, and And/Or Ambiguities > And/Or To protect RT Jedburg from the consequences of ALF failing and in the event that ALF fails (i) to complete all of the work that is required to obtain the CO for the Premises by August 31, 2008 and/or (ii) to have the CO for the Premises issued to it by October 31, 2008, RT Jedburg shall have an allowed Class 4 unsecured claim in the amount of $8 million (the Claim ). The Court: RT Jedburg asserts that the phrase 'and/or' is commonly used to mean 'either' or 'both.' The Court concurs.and therein lies the problem

143 Intermediate Concepts in Drafting Contracts More Advanced Concepts > And, Or, and And/Or Ambiguities > And/Or If ALF fails (i) to meet the Work Deadline and/or (ii) to meet the CO Deadline, then ALF will be liable to RT Jedburg. The Court: RT Jedburg asserts that the phrase 'and/or' is commonly used to mean 'either' or 'both.' The Court concurs.and therein lies the problem. If and/or means either (both not both ): ALF is liable if ALF fails to meet just the Work Deadline or if ALF fails to meet just the CO Deadline (but not if ALF fails to meet both). If and/or means both : ALF is liable if ALF fails to meet both the Work Deadline and the CO Deadline. It seems like the Court meant this or to be an exclusive or! 64 Intermediate Concepts in Drafting Contracts More Advanced Concepts > And, Or, and And/Or Ambiguities > And/Or If ALF fails to meet any Deadline, then ALF is liable to RT Jedburg. Deadlines means the Work Deadline and the CO Deadline, collectively. 65 Intermediate Concepts in Drafting Contracts More Advanced Concepts > And, Or, and And/Or Ambiguities > Summary Any given use of and or or can give rise to one or more ambiguities (and we haven t covered all types instances in which ambiguities could arise). If there is uncertainty, ask yourself: And : (1) collectively; (2) separately; or (3) either collectively or separately? Or : inclusive or exclusive? And / Or : Do you mean either, or do you instead mean both? 66 22

144 Intermediate Concepts in Drafting Contracts More-advanced Concepts > Summary Preliminary (recap): Language matters. Understand the category of language being used. Conditions: Break down a conditional clause into its components; if vs. to the extent that ; don t use shall in conditional clauses. Exceptions/Subordination: Localized exceptions vs. broad inoculations; be precise about what language is being subordinated. Deemed : deemed to be vs. not deemed to be vs. deemed not to be. Time references: Consider whether a start/end date is inclusive or exclusive; ambiguity of within. And : (1) collectively; (2) separately; or (3) either collectively or separately? Or : inclusive or exclusive? And/Or : Do you mean either, or do you instead mean both? 67 Intermediate Concepts in Drafting Contracts Legal Archaisms Ready thy quill and powdered wig! It s time for 68 Intermediate Concepts in Drafting Contracts Legal Archaisms that vs. which (vs., which ) that Think: restrictive; limiting I ll give you all the books in my library that I have read. i.e., I m not going to give you all of the books in my library just those that I have read., which Think: descriptive I ll give you all the books in my library, which I have read. i.e., I have read all of the books in my library and I will give them to you. which [no preceding comma] Think: Can I replace with that? I ll give you all the books in my library which I have read. It s unclear whether you get all the books in my library or only those that I have read

145 Intermediate Concepts in Drafting Contracts Legal Archaisms that vs. which (vs., which ) Purchased Assets means all of the assets owned by the Company and its Subsidiaries, other than those assets owned by Ambiguity Sub which are not material to the Company s operations. Assets of the Company Assets of Ambiguity Sub If which is interpreted to mean that, then only the blue (small) rectangle gets carved out But if which is interpreted to mean, which, then the green (medium) rectangle gets carved out Immaterial Assets of Ambiguity Sub 70 Intermediate Concepts in Drafting Contracts Legal Archaisms WHEREAS, NOW, THEREFORE, IN WITNESS WHEREOF, Do hereby/does hereby Undertakes to just use shall Lancelot does hereby conveyeth his undying love for Guenevere and henceforth shall stave off with sword all others who attempteth to bring her harm. 71 Intermediate Concepts in Drafting Contracts Legal Archaisms All notices, consents, approvals, reports, designations, requests, waivers, elections, and other communications (collectively, Notices ) authorized or required to be given pursuant to this Agreement shall be given in writing and either personally delivered to the Partner to whom it is given or delivered by an established delivery service by which receipts are given or mailed by registered or certified mail, postage prepaid, or sent by telex or telegram or electronic telecopier, addressed to the Partner at his or its address listed beneath such Partner s respective signature hereto

146 Intermediate Concepts in Drafting Contracts Legal Archaisms WITNESSETH: WITNESSETH: 73 Intermediate Concepts in Drafting Contracts The End > This is the end of the presentation. Any questions? Please feel free ask me now or as I m packing up, or to call or me. Questions? 74 About the Presenter Vincent R. Martorana is Counsel in the Corporate & Securities Group with Reed Smith s New York office. His practice includes the representation of clients in domestic and cross-border mergers, stock and asset acquisitions and divestitures, joint ventures, strategic alliances, licensing arrangements, corporate restructurings, private equity investments, and securities offerings. He also regularly provides advice on corporate governance and state laws governing business entities (including Delaware and New York corporate, partnership, and limited liability company law). Vincent has represented a wide range of clients from start-up and early-stage companies to well-established enterprises in various industries, including technology, healthcare, pharmaceutical products, consumer products, and energy. Vincent has extensive experience providing advice on contract drafting, analysis, and interpretation relating to disputes, settlements, and negotiated transactions. He has presented his continuing legal education contract-drafting courses for in-house legal departments and at various other venues, including Practising Law Institute, Strafford Webinars, The Business Development Academy, the National Academy of Continuing Legal Education, the American Bar Association, the New York State Bar Association, the New York City Bar Association, the New York County Lawyers Association, the Brooklyn Bar Association, the Suffolk County Bar Association, and the Westchester County Bar Association. He is also the author of Drafting Points ( a blog that is dedicated to contract-drafting issues. Vincent received a J.D. from the University of Chicago Law School and a B.S. in Economics (with concentrations in Finance and Operations & Information Management), magna cum laude, from the Wharton School at the University of Pennsylvania. Vincent R. Martorana, Counsel Tel: vmartorana@reedsmith.com To receive regular updates on contract-drafting issues, subscribe to Drafting Points at

147 Intermediate Concepts in Drafting Contracts This presentation and the supplemental materials related to this presentation (this presentation and such materials, collectively, the Materials ) are intended to constitute a continuing legal education course and are intended for an audience of attorneys. Neither the Materials, nor any portion thereof, is intended for any other purpose or for anyone other than an attorney. Neither the Materials nor any portion thereof constitutes legal advice. Neither the Materials nor any portion thereof is permitted to be distributed without the express written consent of Vincent R. Martorana. 76 Fin! 77 26

148 Vincent R. Martorana, Counsel Tel: Vincent R. Martorana is Counsel in the Corporate & Securities Group with Reed Smith s New York office. His practice includes the representation of clients in domestic and cross-border mergers, stock and asset acquisitions and divestitures, joint ventures, strategic alliances, licensing arrangements, corporate restructurings, private equity investments, and securities offerings. He also regularly provides advice on corporate governance and state laws governing business entities (including Delaware and New York corporate, partnership, and limited liability company law). Vincent has represented a wide range of clients from start-up and early-stage companies to well-established enterprises in various industries, including technology, healthcare, pharmaceutical products, consumer products, and energy. Vincent has extensive experience providing advice on contract drafting, analysis, and interpretation relating to disputes, settlements, and negotiated transactions. He has presented his continuing legal education contract-drafting courses for in-house legal departments and at various other venues, including Practising Law Institute, Strafford Webinars, The Business Development Academy, the National Academy of Continuing Legal Education, Commercial Law WebAdvisor, the American Bar Association, the New York State Bar Association, the New York City Bar Association, the New York County Lawyers Association, the Brooklyn Bar Association, the Suffolk County Bar Association, and the Westchester County Bar Association. He is also the author of Drafting Points ( a blog that is dedicated to contract-drafting issues. Vincent received a J.D. from the University of Chicago Law School and a B.S. in Economics (with concentrations in Finance and Operations & Information Management), magna cum laude, from the Wharton School at the University of Pennsylvania.