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WHEN SEEKING AN ORDER OF PROTECTION IN NEW YORK HEARSAY STATEMENTS ARE INADMISSIBLE PROOF AND WILL NOT BE CONSIDERED BY THE COURT

Nov 30

DIVORCE LAWYER Nassau County NY
H. Michael Stern, Esq., a New York divorce and family law attorney with over 34 years of experience suggests that any witness to a family offense must be prepared and available to testify in Court or that witness’ statement will not be admissible in the proceeding.blog

In a recent case decided by the Appellate Division, Second Judicial Department, the Court dismissed a case seeking an Order of Protection where a child’s hearsay testimony was offered as proof. Hearsay is an out-of-Court statement made by a witness who is not available to testify in person and that out-of-Court statement is offered for the truth of the matter asserted. While a child’s hearsay statements can be used in abuse, neglect and custody proceedings in New York, the Court held that the statute precluded the use of hearsay as admissible proof. This is especially troublesome as the child would be forced to testify in Court and be exposed to cross-examination by the accused party’s attorney. A child witness who is forced to testify about a violent event can have deleterious consequences to the child. In my experience, jurists have discouraged bringing a child in to testify against a parent or relative.

Accordingly, unless there is an apparent and easily provable exception to the hearsay rule or, there is no hesitancy in using a child as a witness (as in the case of an adult child), a New York Family Offense case should avoid hearsay evidence of any kind as it is inadmissible.

I have been litigating family offense cases for more than three decades. Recent results for my clients can be found within the TESTIMONIALS page on this website. Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island matrimonial practice over the past 34 years.

Feel free to contact me, H. Michael Stern, Esq. a Long Island divorce and family law attorney, if you are interested in a Free Consultation to discuss your matrimonial, divorce, order of protection, support, custody, visitation or family law matter at hmsternesq@gmail.com or by phone at 516-747-2290.

My Nassau County office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road, Suite 555, in Garden City, New York.

I am currently conducting consultations in office, by phone or video conference.

Written by: H. Michael Stern, Divorce Lawyer Long Island NY


The above offers general information for educational purposes. It does not provide comprehensive or complete legal analysis. Any information that I provide should not be relied upon as legal advice or legal opinion on any particular facts or circumstances. Outcomes and results described do not mean or suggest that similar results or outcomes can or could be obtained in any other situation. Each legal matter should be considered to be factually unique and subject to varying results. The invitation to contact the author is not a solicitation to provide professional services, nor is it a statement of availability to perform legal services in any jurisdiction other than the State of New York.

SUBSTANTIAL ATTORNEY FEE AWARD TO WIFE DESPITE FINDING OF PROLONGING LITIGATION AND ENGAGING IN MERITLESS MOTION PRACTICE

Nov 18

DIVORCE LAWYER Long Island NY
H. Michael Stern, Esq., a New York matrimonial and family law attorney and mediator with over 34 years of experience suggests that it would be unwise to presume that a Court would decline to award counsel fees in a divorce case where a party engages in dilatory conduct and engages in meritless motion practice which escalates the parties attorney’s fees.
blog

In a recent case decided by the Appellate Division First Judicial Department, the Court was presented with a situation where the Wife had hired multiple attorneys which resulted in prolonging the litigation. It also found that the wife through her attorneys engaged in meritless motion practice that caused a precipitous rise in the party’s attorney’s fees. Nevertheless, the Wife was awarded $300,000.00 in counsel fees by the Appellate Court.

This case appears to be the standard bearer for the proposition that a counsel fee application by a party should always be rigorously defended, despite apparent misconduct in the case by the applicant. That is not to say that the Husband’s attorneys in the above case did not do their best to defend the claim at trial. It appears that they defended the application with vigor. However, even with proof that the case was prolonged by the Wife’s repeated turnover of her counsel (with the consequence being that each new lawyer has to become familiar with a complicated file), the Court awarded her $300,000 in attorney’s fees. Even more astonishing is that the Court found that the Wife engaged in meritless motion practice which drove up the party’s litigation costs and nevertheless still awarded her that substantial sum.

I have been litigating divorce cases for more than three decades. Recent results can be found within the TESTIMONIALS page on this website.

Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island matrimonial practice over the past 34 years. Feel free to contact me, H. Michael Stern, Esq. a Long Island divorce and family law attorney, if you are interested in discussing your matrimonial, divorce, custody, support, visitation, paternity or family law matter by phone at 516-747-2290.

My Nassau County office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road, Suite 555, in Garden City, New York.

I prefer to conduct consultations in my offices. However, I am currently conducting consultations by phone and by video conference (by appointment).

Written by: H. Michael Stern, Divorce Lawyer Long Island NY


The above offers general information for educational purposes. It does not provide comprehensive or complete legal analysis. Any information that I provide should not be relied upon as legal advice or legal opinion on any particular facts or circumstances. Outcomes and results described do not mean or suggest that similar results or outcomes can or could be obtained in any other situation. Each legal matter should be considered to be factually unique and subject to varying results. The invitation to contact the author is not a solicitation to provide professional services, nor is it a statement of availability to perform legal services in any jurisdiction other than the State of New York.

APPELLATE COURT REITERATES THAT “FIT” WORKING PARENT WILL NOT BE PENALIZED IN A CUSTODY CASE IF A RELATIVE IS USED TO PROVIDE CHILD CARE WHEN THAT PARENT IS WORKING

Oct 23

DIVORCE & CHILD CUSTODY LAWYER Nassau County NY
H. Michael Stern, Esq., a New York matrimonial and family law attorney, and mediator
with over 34 years’ experience points out that if a Court finds a parent to be fit, delegating childcare responsibilities to a relative while the parent works will not result in a deprivation of custody. In other words, the need for a relative to provide childcare for a fit working parent will not disqualify that parent in a custodial determination by the Court.

Three kids playing with bubbles

In a recent case decided by the Appellate Division, Fourth Judicial Department, the Court was presented with a situation where the mother, among other things, had asserted that she was the better choice for custodial parent due to the father’s work schedule. The Court reiterated that designating a relative to provide child care while a fit parent is working will not deprive that parent of custody. Thus, if a parent, who is for all intents and purposes fit, will not be penalized if a relative is used to furnish child care.

The Court found the mother had interfered with the father’s relationship with the children and awarded the father custody in that case. The Court recognized that the use of a relative to act as a child care provider for a fit working parent will not tip the scales in favor of the other parent.

I have been litigating divorce cases for more than three decades. Recent results can be found within the TESTIMONIALS page on this website. Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice over the past 34 years.

Feel free to contact me, H. Michael Stern, Esq. a Long Island divorce and family law attorney, if you are interested in discussing your matrimonial, divorce, child custody, visitation, or family law matter by phone at 516-747-2290.

I am conducting telephone and in person consultations during the pandemic, by appointment. If you want to have a telephone consultation or an in-person consultation in my office, please call the number above.

My Nassau County office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road, Suite 555, in Garden City, New York.

Written by: H. Michael Stern, Divorce Lawyer


The above offers general information for educational purposes. It does not provide comprehensive or complete legal analysis. Any information that I provide should not be relied upon as legal advice or legal opinion on any particular facts or circumstances. Outcomes and results described do not mean or suggest that similar results or outcomes can or could be obtained in any other situation. Each legal matter should be considered to be factually unique and subject to varying results. The invitation to contact the author is not a solicitation to provide professional services, nor is it a statement of availability to perform legal services in any jurisdiction other than the State of New York.

CHILD SUPPORT & INVOLUNTARY TERMINATION OF EMPLOYMENT

Oct 19

Did the Appellate Court impose a new element of proof in a downward modification of child support proceeding?
CHILD SUPPORT LAWYER NASSAU COUNTY NY
H. Michael Stern, Esq., a New York matrimonial and family law attorney with over 34
years’ experience is wondering whether the Appellate Division First Judicial Department has just imposed a new element of proof in presenting a downward modification of child support case where there was an involuntary termination of employment.

A man with a sign that says "I Lost My Job!! #Covid-19"

In a case recently decided by the Appellate Division First Judicial Department, the Court

was presented with a situation where the applicant was terminated from employment. The applicant was forced to take a job with a reduced salary as he could not find a job with similar pay. The trial Court used the applicant’s reduced self-reported income at the time of trial to fix his child support obligation. The Appellate Court reversed the Supreme Court and imputed income based upon the applicant’s salary history. When a Court imputes income, it disregards the income reported by the party and sets income based upon, among other things, the party’s earning potential. The Appellate Division noted that there was nothing in the trial record which reasonably addressed the applicant’s inability to secure a similar position.

This appears to be a new element of proof and adds to the overall burden of proof for the applicant. Most applicants lack the financial resources to hire a vocational expert witness. Indeed, proving that there are no similar jobs available is a daunting task. One must question if there were similar jobs available and the applicant applied for such jobs and didn’t get any of them, would the application fail due to the higher standard. I am curious if the other Judicial Departments will follow and impose this heavier burden of proof in downward modification cases.

I have been litigating Supreme Court divorce and family law cases for more than three decades. Recent results can be found within the TESTIMONIALS page on this website.

Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice over the past 34 years. Feel free to contact me, H. Michael Stern, Esq. a Long Island divorce and family law attorney, if you are interested in discussing your matrimonial, divorce or family law matter please call 516-747-2290.

I am conducting in person, telephone, and virtual video consultations during the pandemic, by appointment.

My office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road, Suite 555, in Garden City, New York.

Written by: H. MICHAEL STERN, Divorce Lawyer Nassau County NY


The above offers general information for educational purposes. It does not provide comprehensive or complete legal analysis. Any information that I provide should not be relied upon as legal advice or legal opinion on any particular facts or circumstances. Outcomes and results described do not mean or suggest that similar results or outcomes can or could be obtained in any other situation. Each legal matter should be considered to be factually unique and subject to varying results. The invitation to contact the author is not a solicitation to provide professional services, nor is it a statement of availability to perform legal services in any jurisdiction other than the State of New York.

APPELLATE COURT FINDS THAT MATERNAL GRANDPARENTS WERE NOT THE BEST OPTION TO ACT AS SUPERVISORS OF VISITATION

Sep 14

DIVORCE LAWYER Nassau County NY
H. Michael Stern, Esq., a New York matrimonial and family law attorney, and mediator with over 34 years of experience suggests where supervised visitation with children is appropriate, that the qualifications and availability of the supervisors must be scrutinized.
Two little girls hugging

In a recent case decided by the Appellate Division Second Judicial Department, the Court was presented with a situation where the mother required supervised child visitation and the lower Court directed expanded alternating weekend supervised child visitation with the maternal grandparents acting as the supervisors. Essentially, supervised child visitation is appropriate where unsupervised child visits can be detrimental to the subject child. The central issue in the case was whether the maternal grandparents would responsibly provide the requisite supervision to ensure the children’s safety during the visit. In reversing the lower Court, the Appellate Division found that the lower Court did not determine the willingness or ability of the maternal grandparents to adequately supervise the children for the entire weekend visit. The Appellate Court referred the case back to the lower Court to redetermine the mother’s supervised parenting time with the children.

This is not an unfamiliar situation. There are times where the proposed supervisor of child visitation is not in Court or is too closely aligned with the party under supervision. In the first example, the Court does not have the opportunity to extensively question the proposed supervisor to determine whether the person is capable of providing the necessary oversight. In the second example, a close relative may have his or her loyalties tested by the parent who will seek a measure of liberty with the child, free of supervision by the relative. Oftentimes, the relative will have the supervised child visit in a residential setting and may not remain in the same room as the parent under supervision (with the child). These scenarios are particularly troublesome for the Courts. Accordingly, proper, and extensive vetting of the proposed supervisor becomes a paramount concern for the Court. In a case that I settled last year; the problem was addressed in part by the supervised child visit taking place in a restaurant. However, as the pandemic has reduced the available options for supervised child visitation in public, there may be more cases along the lines of the one referred to in this blog.

I have been litigating child custody and divorce cases for more than three decades. Recent results can be found within the TESTIMONIALS page on this website.

Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island matrimonial practice over the past 34 years. Feel free to contact me, H. Michael Stern, Esq. a Long Island divorce and family law attorney, if you are interested in discussing your matrimonial, divorce or family law matter by phone at 516-747-2290.

My Nassau County office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road, Suite 555, in Garden City, New York.
Written by, H. MICHAEL STERN, Divorce & Child Custody Lawyer


The above offers general information for educational purposes. It does not provide comprehensive or complete legal analysis. Any information that I provide should not be relied upon as legal advice or legal opinion on any particular facts or circumstances. Outcomes and results described do not mean or suggest that similar results or outcomes can or could be obtained in any other situation. Each legal matter should be considered to be factually unique and subject to varying results. The invitation to contact the author is not a solicitation to provide professional services, nor is it a statement of availability to perform legal services in any jurisdiction other than the State of New York.

RECENT APPELLATE DECISION PREVENTS ONE PARTY FROM SEEKING A RESTRUCTURING OF TERMS CONCERNING REAL ESTATE WHICH DIFFER FROM THE PARTIES SETTLEMENT AGREEMENT

Jul 29

DIVORCE LAWYER NASSAU COUNTY
H. Michael Stern, Esq., a New York matrimonial and family law attorney and mediator with over 34 years of experience suggests that if there is uncertainty concerning the disposition of property subject to distribution in a divorce, that the parties should avoid waiving their rights to have a Court determine the disposition if a subsequent dispute arises between them.
Pictures of houses and keys, with the words Real Estate in the center

In a recent case determined by the Appellate Division of the Supreme Court, Second Judicial Department, the Court held that where the parties Stipulation of Settlement clearly provided for the method of distribution of their real estate, that the Court was not permitted to change or rewrite the disputed terms of the parties agreement. Furthermore, the Appellate Court held that since the parties Stipulation of Settlement had contained a waiver of equitable distribution, the terms of the agreement prevented the Court from addressing the distribution of property, deeming the issue fully resolved.

In my opinion, where there is uncertainty concerning the disposition of property in a divorce, the best practice is to avoid any waiver and include a clause reserving jurisdiction for the Court to address all aspects of the distribution of the asset following the settlement. In both Stipulations of Settlement and Separation Agreements, I have routinely provided for a reservation of rights by the Court to address all aspects of the process of liquidating real property, as it has been my experience that unforeseen problems can arise that require judicial involvement. If a problem arises, it is best to have the Court available to help facilitate and implement the party’s intentions.

I use my best efforts to settle all divorce cases. Recent results can be found within the TESTIMONIALS page on this website. Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice over the past 34 years.

Feel free to contact me, H. Michael Stern, Esq. a Long Island divorce and family law attorney, if you are interested in discussing your matrimonial, divorce or family law matter by phone at
516-747-2290.

My Long Island office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road, Suite 555, in Garden City, New York.

Written by, H. Michael Stern, Divorce Lawyer Nassau County, NY


The above offers general information for educational purposes. It does not provide comprehensive or complete legal analysis. Any information that I provide should not be relied upon as legal advice or legal opinion on any particular facts or circumstances. Outcomes and results described do not mean or suggest that similar results or outcomes can or could be obtained in any other situation. Each legal matter should be considered to be factually unique and subject to varying results. The invitation to contact the author is not a solicitation to provide professional services, nor is it a statement of availability to perform legal services in any jurisdiction other than the State of New York.

ENROLLMENT IN KINDERGARTEN CAN CONSTITUTE A CHANGE OF CIRCUMSTANCES WARRANTING A REDUCTION OF CHILD CARE CONTRIBUTIONS

Jul 20

DIVORCE & CHILD SUPPORT LAWYER NASSAU CTY, NY

Michael Stern, Esq., a New York matrimonial and family law attorney and mediator with over 34 years of experience suggests that a Child Support Downward Modification Petition should be filed by the non-residential parent where a child has enrolled in kindergarten, resulting in a significant reduction in actual child care expenses.
A Clock
In a recent case determined by the Appellate Division of the Supreme Court, Second Judicial Department, the Court held that the father had met his burden of proof of a substantial change in circumstances where the parties child had enrolled in kindergarten, resulting in a substantial reduction in child care expenses.

The Court affirmed the finding of the Family Court and reduced the father’s obligation to the pro rata share of the reasonable and actual childcare expenses paid by the mother.

I suggest that it is prudent to verify the actual childcare expenses incurred if there is a change of employment by the recipient parent or the enrollment in kindergarten. Enrollment by the child in school district based after school programs should also be scrutinized by the parent paying childcare expenses. While child support may not change if the only change in circumstances is the enrollment of a child in kindergarten, the amount of out-of-pocket childcare costs are subject to a downward adjustment.

I have been litigating Family Court Child Support Modification cases throughout my career. Recent results can be found within the TESTIMONIALS page on this website.

Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice over 34 years. Feel free to contact me, H. Michael Stern, Esq. a Long Island divorce and family law attorney, by phone at 516-747-2290 if you are interested in discussing your matrimonial, divorce, child support or family law matter.

Due to the pandemic, I conduct telephone or in office consultations. My office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road, Suite 555, in Garden City, New York.

Written by, H. Michael Stern, Divorce & Child Support Lawyer Long Island, NY


The above offers general information for educational purposes. It does not provide comprehensive or complete legal analysis. Any information that I provide should not be relied upon as legal advice or legal opinion on any particular facts or circumstances. Outcomes and results described do not mean or suggest that similar results or outcomes can or could be obtained in any other situation. Each legal matter should be considered to be factually unique and subject to varying results. The invitation to contact the author is not a solicitation to provide professional services, nor is it a statement of availability to perform legal services in any jurisdiction other than the State of New York.

WHEN YOUR SPOUSE HIRES AN ATTORNEY THAT YOU PREVIOUSLY TALKED TO, THE KIND OF INFORMATION THAT WAS DISCUSSED WILL DETERMINE WHETHER YOUR SPOUSE’S ATTORNEY WILL BE DISQUALIFIED BY THE COURT

Jul 13

DIVORCE LAWYER Nassau County, NY
H. Michael Stern, Esq., a New York matrimonial and family law attorney, and mediator with over 34 years of experience suggests that when interviewing attorneys to handle your divorce case, it is important to keep a record of the topics discussed during the meeting.
the words Divorce with a compass next to it.
In a recent case decided by the Appellate Division, First Judicial Department, the Court was presented with a situation where the wife had met with and had follow up calls with an attorney. Apparently, the wife provided that attorney with financial information. That same attorney was a partner in a firm hired as co-counsel to represent the husband a few years later. This presents an issue of a potential conflict of interest on the part of the firm acting as co-counsel which could result in the disqualification of the firm. The Appellate Court determined that there was no basis to disqualify co-counsel for the
husband based upon a conflict of interest as there was no proof that the information was significantly harmful to the wife. The Court found that the financial information that the wife gave to the attorney in question was subject to discovery in the divorce case. Discovery is a process where information and documents are exchanged by the parties in a divorce case. The Court also found that the financial information was already known by the husband.

The question is whether the result would have been different in that case if the wife had imparted information concerning issues such as marital fault, domestic violence, or custody and visitation issues. These issues are not subject to discovery in parts of the State of New York. In the First Department, none of these issues would be subject to discovery. That is why it makes sense to keep a record of the subject matter discussed during an attorney consultation, as that same attorney could be hired by your spouse. These issues arise from time to time and no litigant wants to be in a position of having to assess whether the attorney on the other side possesses significantly harmful information that can adversely impact his or her case.

I have been litigating divorce cases for more than three decades. Recent results can be found within the TESTIMONIALS page on this website. Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice over the past 32 years.

Feel free to contact me, H. Michael Stern, Esq. a Long Island divorce and family law attorney, if you are interested in discussing your matrimonial, divorce or family by phone at 516-747-2290.

I am conducting telephone and in person consultations during the pandemic, by appointment. My Long Island office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road, Suite 555, in Garden City, New York.

Written by, H. Michael Stern, Divorce Lawyer, Nassau County NY


The above offers general information for educational purposes. It does not provide comprehensive or complete legal analysis. Any information that I provide should not be relied upon as legal advice or legal opinion on any particular facts or circumstances. Outcomes and results described do not mean or suggest that similar results or outcomes can or could be obtained in any other situation. Each legal matter should be considered to be factually unique and subject to varying results. The invitation to contact the author is not a solicitation to provide professional services, nor is it a statement of availability to perform legal services in any jurisdiction other than the State of New York.

WHAT I LEARNED DURING MY PERSONAL APPEARANCE IN THE COVID-19 NASSAU COUNTY FAMILY COURT IN CONNECTION WITH A TEMPORARY ORDER OF PROTECTION PROCEEDING

May 21

Family & Divorce Lawyer Nassau County NY

H. Michael Stern, Esq., a New York matrimonial and family law attorney, and mediator
with over 34 years of experience recently made a personal appearance with a litigant seeking an Order of Protection in the Nassau County Family Court. These are my informal observations and suggestions for any party seeking an Order of Protection in Nassau Family Court during the pandemic lockdown, pending the re-opening of the Westbury, New York Courthouse
judge with mallet, files and computer
First things first, the Court is temporary situated in Mineola at 262 Old Country Road.
The entrance to the temporary Court is located on Old Country Road. I suggest that if time permits, download a copy of the Nassau Family Court case information sheet from the “Nassau County Family Court petitions and forms” web page. Fill it out beforehand to save time. When you arrive, you will encounter a Court Officer. If you inform the officer that the forms for an Order of Protection are needed, you will be provided with a blank form set. You may not be permitted inside the Courthouse while you prepare the paperwork, so bring a clipboard to write on. It makes sense to write down (or type) the details of the event or events which underlie the application for the Order of Protection and bring that document with you to Court. That document can be attached to the handwritten Petition and made a part of it. If not prepared in advance, you will have to write out the details of the event(s) within the Petition form following your arrival at the Courthouse. If you have questions concerning preparation of the Petition form, you can ask to speak to one of the Court Clerks for assistance.

Once the paperwork is completed and carefully reviewed, let the Court Officer at the
building entrance know that the forms can be filed with the Court. Then you will have to wait for your case to be called. Once your case is called, you will be brought into an empty courtroom. The Judge, Court Clerk and Court Officer will be teleconferencing the case. Basically, you and the escorting Court Officer will be the only persons present, the Court staff will be appearing remotely. It is the equivalent of a Zoom teleconference. You will be sworn in and questioned by the judge. A decision will be made then and there as to whether you qualify for an Order of Protection and the terms will be placed on the record by the Judge. Then you will be escorted out of the Courtroom and will have to wait outside the building for the written Temporary Order of Protection to be prepared. I suggest that the applicant wait for the Temporary Order of Protection in all instances. The Temporary Order of Protection will be served by an agent of the Court on the other party. I suggest that the raised seal official copy always be kept in reach of the applicant. If the police are summoned, it is important for the responding officers to have the raised seal official copy available for review, so they act accordingly.

I have been litigating Family Court cases for more than three decades. Recent results can be found within the TESTIMONIALS page on this website. Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice over the past 34 years.

Feel free to contact me, H. Michael Stern, Esq. a Long Island divorce and family law attorney, if you are interested in discussing your matrimonial, divorce or family law matter at hmsternesq@gmail.com or by phone at 516-747-2290.

I am conducting telephone and virtual video consultations during the pandemic, by appointment. If you want to have a telephone or virtual video consultation, please call my office to arrange one. I am also available to conduct the consultation in person at my office.

My Long Island office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road, Suite 555, in Garden City, New York.

Written by, H. Michael Stern, Divorce Lawyer Nassau County NY


The above offers general information for educational purposes. It does not provide comprehensive or complete legal analysis. Any information that I provide should not be relied upon as legal advice or legal opinion on any particular facts or circumstances. Outcomes and results described do not mean or suggest that similar results or outcomes can or could be obtained in any other situation. Each legal matter should be considered to be factually unique and subject to varying results. The invitation to contact the author is not a solicitation to provide professional services, nor is it a statement of availability to perform legal services in any jurisdiction other than the State of New York.

IF A PARTY IS NOT COMPLYING WITH DISCOVERY IN A NEW YORK DIVORCE, ONE MUST CONSIDER THE TACTICAL IMPLICATIONS OF A MOTION TO STRIKE THE PLEADINGS OF THE OFFENDING PARTY

Apr 10

DIVORCE LAWYER LONG ISLAND NY

Michael Stern, Esq., a New York matrimonial and family law attorney and mediator

with over 34 years of experience suggests that unless the offending party is the Plaintiff and the other party does not want a divorce, the best approach is to seek an Order of Preclusion as to evidence and testimony, as opposed to striking the pleadings of the offending party.
A gavel on a stack of files

In a recent case decided by the Appellate Division First Judicial Department, the Court

was presented with a situation where the offending party did not comply with demands for financial information. As a sanction, the lower Court had struck the offending party’s pleadings (which refer to the grounds for divorce and relief requested by that party). The Appellate Court found that the offending party was not precluded from presenting evidence and testimony at the trial. It found that the trial Court had correctly ruled that the reason for the inadmissibility of her evidence was due to the evidence being unenforceable and incomplete hearsay documents. The stricken pleadings did not bar or impair the offending party from presenting the documentary evidence.

This is an interesting decision due to the tactical considerations that a litigant must

choose where the other party is holding back financial records. Certain Courts in New York incorporate a provision in the order made at the very first Court conference (e.g. the preliminary conference) in a divorce case that mandates that one party or the other will proceed with a ground for divorce at trial. That mandate cannot be altered without the consent of the parties or by Order of the Court. An Order to strike the pleadings of a party who is designated in the Order to proceed with the grounds for divorce at trial is of no usefulness whatsoever if both parties want a divorce. In that case, the other party will proceed with the divorce and the offending party gets away with the misconduct, unless counsel fees are awarded to the other party at trial.  If one party does not want equitable distribution of marital property (which is a consequence of a New York divorce), then striking the pleadings of the party who is designated as the party to take the divorce at trial can result in a dismissal of the divorce action. If the “no fault” ground is stricken, then a marital fault ground would have to be the basis of any subsequent divorce case. In the case decided by the Court, the offending party appears to be aggrieved, but the reason is not attributable to the well-founded tactical decisions made by the other party in that case.

My belief is that the better practice for other party in that case would have been to seek the alternative sanction of obtaining an Order precluding the offending party from offering evidence or testimony at the trial.

I have been litigating divorce cases for more than three decades. Recent results can be found within the TESTIMONIALS page on this website.

Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice over the past 34 years. Feel free to contact me, H. Michael Stern, Esq. a Long Island divorce and family law attorney, if you are interested in discussing your matrimonial, divorce or family law matter by phone at 516-747-2290.

My Long Island office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road, Suite 555, in Garden City, New York.

Written by, H. Michael Stern, Divorce Lawyer, Nassau County NY


The above offers general information for educational purposes. It does not provide comprehensive or complete legal analysis. Any information that I provide should not be relied upon as legal advice or legal opinion on any particular facts or circumstances. Outcomes and results described do not mean or suggest that similar results or outcomes can or could be obtained in any other situation. Each legal matter should be considered to be factually unique and subject to varying results. The invitation to contact the author is not a solicitation to provide professional services, nor is it a statement of availability to perform legal services in any jurisdiction other than the State of New York.