N.Y. Comp. Codes R. & Regs. tit. 22 § 202.16

Current through Register Vol. 46, No. 16, April 17, 2024

Section 202.16 - Application of Part 202 and Section 202.16. 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 of Part 202 and Section 202.16.

(1) Part 202 shall be applicable to civil actions and proceedings in the Supreme Court, including, but not limited to, matrimonial actions and proceedings, except as otherwise provided in this section 202.16 and in sections 202.16 -a, 202.16-b, and 202.18, which sections shall control in the event of conflict.

(2) 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 appendix A of this Part (see Appendix A, following part 218).

(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 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 of Paper and Obligations of Counsel Appearing Before the Court

(1) Every paper served on another party or filed or submitted to the court in a matrimonial action shall be signed as provided in section 130-1.1a of this Title.

(2) Counsel who appear before the court must be familiar with the case with regard to which they appear and be fully prepared and authorized to discuss and resolve the issues which are scheduled to be the subject of the appearance. Failure to comply with this rule may be treated as a default for purposes of Rule 202.27 and/or may be treated as a failure to appear for purposes of Rule 130-2.1, provided that, in matrimonial actions and proceedings, consistent with applicable case law on defaults in matrimonial actions, failure to comply with this rule may, either in lieu of or in addition to any other direction, be considered in the determination of any award of attorney fees or expenses.

(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.

(1-a) Where both parties are represented by counsel, counsel shall consult with each other prior to the preliminary conference to discuss the matters set forth in paragraph (2) below and in NYCRR § 202.11 in a good faith effort to reach agreement on such matters. Notwithstanding NYCRR § 202.11, no prior consultation is required where either or both of the parties is self-represented. Counsel shall, prior to or at the conference, submit to the court a writing with respect to any resolutions reached, which the court shall "so order" if approved and in proper form.

(1-b) Both parties personally must be present in court at the time of the conference, and the judge 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, and, including the number and length of depositions, the number of interrogatories, and agreement of the parties to comply with Guidelines on Electronically Stored Information. Unless otherwise stipulated by the parties or ordered by the court, interrogatories shall be no more than 25 in number including subparts; and depositions shall be no more than 7 hours long. The Provisions of NYCRR § 202.20 -b(a)(1) limiting the number of depositions taken by plaintiffs, or by defendants, or by third-party defendants, shall not apply to matrimonial actions.

(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.

(4) 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. Where both parties are represented by counsel, counsel shall consult with each other prior to the compliance conference in a good faith effort to resolve any outstanding issues. Notwithstanding NYCRR § 202. 11, no prior consultation is required where either or both of the parties is self-represented. Counsel shall, prior to or at the compliance conference, submit to the court a writing with respect to any resolutions reached, which the court shall "so order" if approved and in proper form.

(5) In accordance with Section 202.20 -c(f), absent good cause, a party may not use at trial or otherwise any document which was not produced in response to a request for such document or category of document, which request was not objected to, or, if objected to, such objection was overruled by the court, provided, however, the court may exercise its discretion to impose such other, further, or additional penalty for non-disclosure as may be authorized by law and which may be more appropriate in a matrimonial action than preclusion or where there is a continuing obligation to update (e.g., updated tax returns, W-2 statements, etc.).

(6) The Court shall alert the parties to the requirements of 22 NYCRR § 202.20 -c regarding requests for documents; § 202.20 -e regarding adherence to discovery schedule, and § 202.20 -f regarding discovery disputes, and shall address the issues of potential for default, preclusion, denial of discovery, drawing inferences, or deeming issues to be true, as well as sanctions and/or counsel fees in the event default or preclusion or such other remedies are not appropriate in a matrimonial action.

(g) Expert Witnesses and Other Trial Matters.

(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 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 admissible 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 cross- examination. In the discretion of the court, in a proper case, parties may be bound by the expert's report in their direct case.

(3) Pursuant to NYCRR § 202.26, in cases in which both parties are represented by counsel and each party has called, or intends to call, an expert witness on issues of finances (e.g., equitable distribution, maintenance, child support), the court may direct that, prior to, or during trial, counsel consult in good faith to identify those aspects of their respective experts' testimony that are not in dispute. The court may further direct that any agreements reached in this regard shall be reduced to a written stipulation. Such consultation shall not be required where one or both parties is self-represented or where the expert testimony relates to matters of child custody or parental access, domestic violence, domestic abuse, or child neglect or abuse.

(4) The provisions of section 202.20 -a regarding privilege logs shall not apply to matrimonial actions and proceedings unless the court orders otherwise.

(5) Parties and non-parties should adhere to the Electronically Store Information ("ESI") Guidelines set forth in an Appendix to the Uniform Civil Rules.

(6) At the commencement of the trial or at such time as the court may direct, each party shall identify in writing for the court the witnesses it intends to call, the order in which they shall testify and the estimated length of their testimony, and shall provide a copy of such witness list to opposing counsel. Counsel shall separately identify for the court only a list of the witnesses who may be called solely for rebuttal or with regard to credibility. The court may permit for good cause shown and in the absence of substantial prejudice, a party to call a witness to testify who was not identified on the witness list submitted by that party. The estimates of the length of testimony and the order of witnesses provided by counsel are advisory only and the court may permit witnesses to be called in a different order and may permit further testimony from a witness notwithstanding that the time estimate for such witness has been exceeded.

(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 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 (including costs for processing of NYSCEF documents because of the inability of a self-represented party that desires to e-file to have computer access or afford internet accessibility) 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:

(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.

(m) The court may, for good cause, relieve the parties and counsel from the requirements of 22 NYCRR § 202.34 regarding pre-marking of exhibits and 22 NYCRR § 202.20 -h. regarding pre-trial memoranda and Exhibit Books.

(n) Upon request of a party, the court may permit direct testimony of that party's own witness in a non-jury trial or evidentiary hearing shall be submitted in affidavit form, provided, however, that the opposing party shall have the right to object to statements in the direct testimony affidavit, and the court shall rule on such objections, just as if the statements had been made orally in open court. Where an objection to a portion of a direct testimony affidavit is sustained, the court may direct that such portion be stricken. The submission of direct testimony in affidavit form shall not affect any right to conduct cross examination or re-direct examination of the witness. Notwithstanding the foregoing, in an action for custody, visitation, contempt, order of protection or exclusive occupancy, however, except as provided in NYCRR § 202.18, a party or a party's own witness may not testify on direct examination by affidavit.

(o) Omission or Redaction of Confidential Personal Information from Matrimonial Decisions.

N.Y. Comp. Codes R. & Regs. Tit. 22 § 202.16

Amended New York State Register February 3, 2016/Volume XXXVIII, Issue 05, eff.3/1/2016

Amended New York State Register September 7, 2016/Volume XXXVIII, Issue 36, eff. 9/7/2016

Amended New York State Register March 24, 2021/Volume XLIII, Issue 12, eff. 3/24/2021

Amended eff. 7/1/2022.

Amended New York State Register July 6, 2022/Volume XLIV, Issue 27, eff. 7/1/2022

Amended eff. 7/27/2022.

Amended New York State Register August 31, 2022/Volume XLIV, Issue 35, eff. 8/31/2022