Brian D. Perskin & Associates

Uniform Matrimonial Rules, New York County

MATRIMONIAL LITIGATION

Concerning: Contested and Uncontested Cases / Deadlines and Processing of Cases – Contested / Orders of Protection / Commencement of Action – Uncontested / Pursuing of Judgment (Necessary Papers) – Uncontested

CONTESTED CASES

A. Deadlines and Processing of Papers

Motions, orders to show cause, long form orders, and disclosure orders in matrimonial cases are processed through the regular back offices of the court. As to orders of protection, see the next Section. Net Worth Statements are filed in the Trial Support Office (Room 158). Proposed findings of fact and conclusions of law and proposed judgments in matrimonial matters, and Qualified Domestic Relations Orders (QUADROS) are filed in the Matrimonial Support Office (Room 311).

Technically, matrimonial cases are not part of the universe of Differentiated Case Management (Uniform Rule 202.19) matters. The deadlines set forth in Rule 202.16 of the Uniform Rules for the Trial Courts are more accelerated than the DCM standards.

Rule 202.16 was amended in July 2000 to provide that detailed items of financial disclosure must be furnished and filed with the court at least ten days prior to the preliminary conference. Previously only the Net Worth Statement was specifically required to be provided at that time.

B. Orders of Protection

Orders of protection are critical. The court will do all that it can to ensure that, when a Justice issues such an order, it is transmitted immediately to the police liaison in Family Court for service, if police service is required, and in any case to One Police Plaza for informational purposes. In addition, this court will transmit, within 24 hours, copies of the relevant orders and essential related information to the Registry, which is run by the State Police.

Standard forms of orders of protection, both temporary and permanent, are available on the Unified Court System’s web site (at www.nycourts.gov). Information contained in the orders can be automatically fed into the Registry’s electronic database. Because of the gravity of this matter, it is vital that these forms of order be used in all cases. In addition, standardized data collection forms have been issued to ensure that the needed information is included in the Registry and provided to the police. These forms must be completed whenever an order of protection is issued. Order numbers are issued by the Trial Support Office upon request of the Part Clerk.

UNCONTESTED CASES

A. Commencement of an Action

A summons and complaint or summons with notice, must be filed with the County Clerk (Room 141B). Compliance with Rule 130-1.1 of the Rules of the Chief Administrator is required. In order properly to file, the plaintiff must fill out a cover sheet and an index number purchase form; purchase an index number (cost $ 210); fill the index number in on the summons and the complaint or the summons with notice and add the date the index number was purchased. Plaintiff will file one set of the summons and complaint or summons with notice with the Clerk. One set of these papers will be served on the defendant and the original papers will later be filed with the Matrimonial Support Office (Room 311).

The plaintiff must cause the summons and complaint or summons with notice to be served within 120 days of the date the summons and complaint were filed in the County Clerk’s Office. Failure to serve the defendant on time can result in dismissal upon motion. See CPLR 306-b.

If the defendant defaults, a default judgment of divorce may be obtained. The defendant must appear or answer within 20 days of being served (30 days if service is made outside the state).

The vast majority (by a factor of roughly 15 to one) of the judgments of divorce granted in New York County are uncontested. That is, either the other spouse consents to the divorce or defaults and does not contest the lawsuit. If the defendant signs a Defendant’s Affidavit of Consent providing for immediate placement on the calendar or waiving all applicable time periods, the plaintiff may proceed to place the case on the calendar for action by the court immediately after service of the summons and complaint. If such a consent has not been signed, then the plaintiff must wait 40 days after the date of such service.

B. Pursuing a Judgment

In order to obtain an uncontested divorce, the plaintiff must present the following, properly notarized when required, to the Matrimonial Support Office (Room 311):

  1. Note of Issue: An original and two copies with proof of index number purchase.
  2. Summons and Verified Complaint, with Proof of Service: A verified complaint must be filed in all cases.
  3. Affidavit of Defendant: If defendant appears and consents to the divorce.
  4. Affidavit of Regularity: By plaintiff. States that defendant has consented to placement on the calendar, or shows the manner of service and claims a default after the proper time has elapsed, relying on the third-party affidavit of service.
  5. Affidavit as to Military Status: This document, which states that the defendant is not in the military service, is unnecessary in cases where the defendant has signed a consent to the divorce.
  6. Plaintiff’s Affidavit: This must establish all the elements of the plaintiff’s case to justify the relief requested.
  7. Affidavit of Child’s Residence: Required when there are children under the age of 18, but advisable in all cases. This information can be included in Item 5.
  8. Child Support Worksheet: Usually necessary when there is a child of the marriage under 21.
  9. Sworn Statement as to Barriers to Remarriage (With Proof of Service): Necessary only when the marriage had been performed in a religious ceremony or one conducted by the Ethical Culture Society. When the ground for divorce is DRL § 170(5) or (6) (separation decree or separation agreement), the defendant has made a general appearance (signed the Affidavit of Defendant or appeared by an attorney) and the marriage was performed in a religious ceremony, then both parties must execute the Removal of Barriers Affidavit or one party must execute and serve the Affidavit and waive reciprocal performance by the other.
  10. Proposed Findings of Fact and Conclusions of Law: A proposed decision submitted to the court for its consideration and possible execution.
  11. Proposed Judgment: A proposed form of the document that formally ends the marriage and resolves all issues between the parties.
  12. Postcard: A stamped, self-addressed postcard containing the title of the action and the calendar and index numbers; used to notify the plaintiff of the status of the case.
  13. Part 130 Certification
  14. Certificate of Dissolution: Certificate reflecting dissolution.
  15. Defendant’s Affidavit of Consent (Unnecessary where defendant has defaulted)
  16. UCS – 111 (Divorce and Child Support Summary Form): Form required only if there is child support involved (children under 21).
  17. Notice of Entry
  18. New York State Case Registry Filing Form: Only if there are children under 21.

These forms can be found on the Unified Court System’s web site (at www.nycourts.gov).

The Clerk of the Matrimonial Support Office reviews these papers for form. If the papers are found satisfactory, the filer can place the case on the court’s calendar. The applicant brings the papers to the Cashier in the County Clerk’s Office for purchase of a calendar number (cost $ 125).

The papers will then be presented by the Clerk in the Matrimonial Support Office to a Justice or a Court Attorney-Referee for consideration. No RJI is filed. Cases proceed in calendar number order and are assigned in strict rotation to the next open Justice or Referee.

In some cases, a hearing may be required depending upon the circumstances revealed in the papers submitted. On occasion, the court may find that a divorce cannot be granted under the law of this State and may dismiss the action. Should the court find instances of fraud, such as apparently fraudulent signatures, further action will be taken, which may include referral of the matter to the New York County District Attorney. Signed judgments are sent to the County Clerk’s Office to be entered in the minutes and placed in the permanent file in the Record Room. The defective cases are retained in Room 311. The self-addressed postcard (see above) is sent to the attorney or filer advising that the papers have been signed or are defective.

When defective papers are corrected (and a new postcard is submitted for notification purposes), the papers are resubmitted to the Judge or Court Attorney-Referee who had previously been assigned the case.

Every 30-60 days, a “Mark Off Calendar” is created. Cases that have been found defective, are more than six months old and have had no activity in the last thirty days are placed on the calendar to be marked off by a Referee. An attorney or filer may restore a marked off case within one year by compliance with a procedure sheet supplied by the Matrimonial Office. After one year, the matter is deemed to have been dismissed. CPLR § 3404.

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