N.Y. Comp. Codes R. & Regs. tit. 22, subtit. D, ch. III, subch. B, Referee's report - findings of fact and conclusions of law

Download

PDF

Current through Register Vol. 46, No. 53, December 31, 2024

Referee's report - findings of fact and conclusions of law

REFEREE'S REPORT - FINDINGS OF FACT

AND CONCLUSIONS OF LAW

SUPREME COURT OF THE

STATE OF NEW YORK

COUNTY OF ________

TITLE OF ACTION ________

Cal.No. ________

Index No. ________

Nature of Action - Divorce

The plaintiff having brought this action for a judgment of absolute divorce by reason of ________

(Insert one or more of the following grounds:)

[*] the cruel and inhuman treatment of the plaintiff by the defendant

[*] the abandonment of the plaintiff by the defendant for a period of one or more years

[*] the confinement of defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant

[*] the commission by the defendant of adultery

[*] the plaintiff and defendant having lived apart after the granting of a judgment of separation for a period of one or more years

[*] the plaintiff and defendant having lived separate and apart pursuant to a written agreement for a period of one or more years

Nature of Action - Separation

The plaintiff having brought this action for a judgment of separation by reason of ________

(Insert one or more of the following grounds:)

[*] the cruel and inhuman treatment of the plaintiff by the defendant

[*] the abandonment of the plaintiff by the defendant

[*] the neglect or refusal of defendant to provide for plaintiff

[*] the commission by defendant of adultery

[*] the confinement of defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant

Nature of Action - Annulment

The plaintiff having brought this action for a judgment of annulment by reason of the fraud of the defendant in inducing the marriage

(For other grounds, see section 140, Domestic Relations Law.)

Nature of Action - Declaration of the Nullity of a Void Marriage

The plaintiff having brought this action for a judgment declaring the nullity of (his) (her) marriage to the defendant by reason of the prior subsisting marriage of the defendant

Service of Process and the summons bearing the notation ("Action for a Divorce") ("Action for a Separation") ("Action to Annul a Marriage") ("Action to Declare the Nullity of a Void Marriage") and a statement of any ancillary relief demanded having been duly served upon the defendant (personally within this State) (personally without this State by publication)

Defendant's Non-Appearance and the defendant not having appeared within the time prescribed therefor by statute, and it appearing from (nonmilitary affidavit) (testimony given in open court) that the defendant is not in the military service of the United States

Defendant's Appearance and Non-Answer and the defendant having appeared by ________, Esq., and plaintiff's verified complaint having been duly served upon the attorney for defendant and the defendant not having answered although the time to do so has fully expired

Defendant's Appearance, Answer and Withdrawal of Answer and the defendant having appeared by ________, Esq., and plaintiff's verified complaint having been duly served upon the attorney for defendant and the defendant having answered the complaint and having thereafter (by written stipulation) (in open court) withdrawn (his) (her) answer

Defendant's Appearance and Answer - Contested Action and the defendant having appeared by ________, Esq., and plaintiff's verified complaint having been duly served upon the attorney for defendant and defendant having answered the complaint

Inquest Held and the plaintiff having applied ________

(if defendant has appeared, insert: on due notice to defendant's attorney)

to the court for judgment for the relief demanded in the complaint and the matter having been set down for trial on the ________ day of ________, 19 ________, and the plaintiff having on that day appeared before me and presented written and oral proof of service and in support of the essential allegations of the complaint, and such proof having been heard and considered by me, I decide and find as follows:

Contested Trial - Non-Jury and the matter having come on for trial before me on the following days ________, and the parties having appeared before me and presented their written and oral proof, and the court having made and filed its memorandum decision dated ________

Contested Trial - Jury and the matter having come on before the undersigned and a jury on the following days: ________; and the parties having presented their written and oral proof before the court and jury, and the jury having been instructed to answer each of the following questions "Yes" or "No":

1. ____________

2. ____________

and having after due deliberation, made written answers to said questions as follows:

Question 1 ________; Question 2 ________:

Age of Parties - No Guardian Needed

FIRST: That plaintiff and defendant were both over the age of 18 when this action was commenced.

Age of Parties - Under-age Party

FIRST: That (plaintiff) (defendant) was over the age of 18 years when this action commenced and (defendant) (plaintiff) was then and now is under 18, to wit: ________ years of age and appears herein by ________, (parent and natural guardian) (duly appointed as guardian by order dated ________, 19 ________).

Residence - One Year

SECOND: That at the time of the commencement of this action and for a continuous period of at least one year immediately preceding such commencement, (plaintiff)(defendant) resided in this State and (the parties were married in the State) (the parties have resided in this State as husband and wife) (the cause occurred in this State).

Residence - Two Years

SECOND: That for a continuous period of at least two years immediately preceding commencement of this action, (plaintiff) (defendant) resided in this State.

Residence - No Required Time

SECOND: That at the time of the commencement of this action both plaintiff and defendant resided in this State and the cause occurred in this State.

Marriage

THIRD: That plaintiff and defendant were married on ________, 19 ________, in ________.

No Children

FOURTH: That there is no issue of this marriage.

Children

FOURTH: That there are ________ children (born of) (adopted by) the parties to this marriage, whose names and dates of birth are as follows:

____________

Cruelty

FIFTH: That at the following times, none of which is earlier than five years before the date of commencement of this action, defendant committed the following acts which endangered the plaintiff's (physical) (mental) (physical and mental) well-being, and rendered it (unsafe) (improper) (unsafe and improper) for plaintiff to continue to reside with defendant.

____________

( Spell out in letter subparagraphs, the acts or omissions to act for which there is proof in the minutes.)

Abandonment

FIFTH: That the defendant without cause or justification and without plaintiff's consent on the ________ day of ________, 19 ________, abandoned plaintiff with intent not to return and has been willfully and continuously absent from the home of the parties since

____________

(in divorce actions, add: for a period of one year prior to the commencement of this action

Confinement to Prison

FIFTH:

(a) That after the marriage of plaintiff and defendant, defendant was confined in prison for a period of three or more consecutive years, to wit: that defendant was confined inprison on the ________ day of ________, 19 ________, and remained confined until the ________ day of ________, 19 ________; and

(b) not more than five years elapsed between the date the cause of action arose and the date of commencement of this action.

Adultery

FIFTH:

(a) That on the ________day of ________, 19 ________, at premises ________, the defendant committed adultery with ________; and

(b) not more than five years elapsed between the date of said adultery and the date of commencement of this action.

Neglect to Support

FIFTH:

(a) That defendant has (neglected) (refused) to provide for the support of plaintiff since the ________ day of ________, 19 ________, and has not done so; and

(b) not more than five years elapsed between the date the cause of action arose and the date of commencement of this action.

Living Apart under Separation Decree

FIFTH:

(a) That a judgment separating the parties was entered on the ________ day of ________, 19 ________, by the ________ Court of the State of ________; and

(b) that the parties have lived apart pursuant to said judgment for a period of one year after the granting of such judgment; and

(c) that the plaintiff has substantially performed all the terms and conditions of such judgment.

Living Apart Under Separation Agreement

FIFTH:

(a) That the plaintiff and defendant entered into a written agreement of separation, which they subscribed and acknowledged on the ________ day of ________, 19 ________, in the form required to entitle a deed to be recorded; and

(b) that the (agreement) (a memorandum of said agreement) was filed in the office of the Clerk of the County of ________, wherein (plaintiff) (defendant) resides, on the ________ day of ________, 19 ________; and

(c) that the parties have lived separate and apart for a period of one year after the execution of said agreement; and

(d) that the plaintiff has substantially performed all the terms and conditions of such agreement.

Annulment for Fraud

FIFTH:

(a) That prior to the marriage of the parties the defendant represented to plaintiff that

____________

(e) All pleadings, briefs or memor and a which reproduce, paraphrase or disclose any documents which have previously been designated by a party as comprising or containing Confidential Information or "Highly Confidential - Attorney's Eyes-Only Information" shall identify such documents by the production number ascribed to them at the time of production.

(b) that said representation was false; and

(c) that said representation was made to induce plaintiff to enter into the marriage; and

(d) that plaintiff believed and relied upon said representation, and would not have entered into the marriage had the representation not been made or had plaintiff known that defendant did not intend to ________

(e) that defendant after the marriage refused to ________

(f) that plaintiff has not cohabited with defendant since discovery of the falsity of the representation; and

(g) that three years have not elapsed since discovery of the facts constituting the fraud.

(For other grounds see section 140, Domestic Relations Law.)

Declaration of Nullity of Void Marriage

FIFTH:

(a) That prior to the marriage to plaintiff and on the day of ________, 19 ________, defendant married ________ (name) in ________ (place); and

(b) that on the date of the marriage of plaintiff and defendant the marriage between defendant and ________ (name) had not been terminated by the judgment of any court; and

(c) on the date of the marriage of plaintiff and defendant, defendant's prior spouse was alive and the prior marriage of defendant was valid and subsisting.

Arrears Due Under Temporary Order

SIXTH:

(a) That by order of this court (or: by order of the Family Court, ________ County) dated the ________ day of ________, 19 ________, defendant was required to pay to plaintiff as and for maintenance and child support, the sum of $ ________ per week, and as counsel fee, the sum of $ ________; and

(b) that there became due under said order through the week of ________, 19 ________, the total sum of $ ________, no part of which has been paid except $ ________; and

(c) that defendant is in arrears under said order in the total sum of $ ________ for said period.

Separate and Marital Property

SEVENTH:

(a) That the following is separate property owned by plaintiff: ________; and

(b) that the following is separate property owned by defendant: ________; and

(c) that the following is marital property to be disposed of equitably pursuant to Domestic Relations Law, section 236B(5):

____________

(List findings required under Domestic Relations Law, section 236B[5][d] [1]- [10].)

Custody

EIGHTH: That the children of the marriage now reside with (plaintiff) (defendant).

Visitation

NINTH: That the (plaintiff) (defendant) is entitled to visitation with the infant child(ren) away from the custodial residence.

Exclusive Occupancy

TENTH: That the parties hereto are the owners of premises known as ________

Maintenance (pursuant to Domestic Relations Law, section 236B[6])

ELEVENTH:

(a) That plaintiff is (not) employed and is earning $ ________ (net) per week; and

(b) that defendant is (not) employed and is earning $ ________ (net) per week; and

(c) that (plaintiff) (defendant) now receives $ ________ per ________ pursuant to an outstanding Court order.

(d) that (plaintiff) (defendant) requires $ ________ per week for maintenance; and

(e) that the parties have entered into (a stipulation) (or/and agreement) dated ________, wherein (plaintiff) (defendant) agrees to accept and (plaintiff) (defendant) agrees to pay $ ________ per week as maintenance and $ ________ per week per child as and for child support. That the terms of the agreement were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of the entry of judgment herein.

(f) Neither of the parties seeks equitable distribution of the marital property.

Child Support

TWELFTH:

(a) The award of child support in accordance with D.R.L. § 240(1-b) is based on the following findings:

the children of the marriage entitled to receive parental support are: [state names and dates of birth];

the income of the plaintiff, who is the (custodial) (non-custodial) parent, is $ ________ per year;

the income of the defendant, who is the (custodial) (non-custodial) parent, is $ ________ year;

the applicable child support percentage is ________%;

the basic child support obligation is $ ________ per (week) (month) [plus, if applicable, expenses for child care, health care not covered by insurance, and educational or other extraordinary expenses];

The non-custodial parent's pro rata share of the basic child support obligation is calculated as follows:

a. $ ________ per (week) (month) representing ________% of the combined parental income under $80,000 per year; plus

b. $ ________ per (week) (month) representing ________% of the combined parental income over $80,000 per year;

c. ________% of future reasonable health care expenses not covered by insurance; [delete if inapplicable]

d. ________% of the reasonable child care expenses; [delete if inapplicable]

e. ________% of educational or other extraordinary expenses; [delete if inapplicable]

[FN1] (b) The non-custodial parent's pro rata share of the basic child support obligation is neither unjust nor inappropriate.

[FN2] (b) Upon consideration of the following factors specified in Section 240 (1-b)(f) of the Domestic Relations Law:

the non-custodial pro rata share of the basic child support obligation is unjust or inappropriate in that:

[FN3] (b) The parties have entered into a (stipulation) (agreement) dated ________ wherein (plaintiff) (defendant) agrees to pay $ ________ per (week) (month) for child support, such (stipulation) (agreement) reciting, in compliance with D.R.L. § 240(1-b)(h), that:

The parties have been advised of the provisions of Section 240 (1-b) of the Domestic Relations Law;

The unrepresented party, if any, has received a copy of the child support standards chart promulgated by the commissioner of Social Services pursuant to Social Services Law § 111-i;

The basic child support obligation as defined in DRL Section 240(1-b) presumptively results in the correct amount of child support to be awarded;

The basic child support obligation in this case is $ ________ per ________; [plus, if applicable, expenses for child, care, health care not covered by insurance, and educational or other extraordinary expenses]; and

[FN4] (c)The amount of child support agreed to therein conforms to the basic child support obligation.

[FN5] (c) The amount of child support agreed to therein deviates from the basic child support obligation, and the parties' reasons for not providing that amount are;

____________

____________;

And the court having found the parties' agreement to deviate from the basic child support obligation is approved for the following reasons: [See DRL § 240(1-b)(f)]

Counsel Fees

THIRTEENTH: That the attorney for the (plaintiff) (defendant) is entitled to counsel fees.

Jurisdiction Obtained

FOURTEENTH: That jurisdiction as required by section 230 of the Domestic Relations Law has been obtained.

FIFTEENTH: That plaintiff has filed a verified statement that (he) (she) has taken all steps solely within (his) (her) power to remove all barriers to defendant's remarriage following the (annulment) (divorce).

Plaintiff Entitled to Judgment

SIXTEENTH: That plaintiff is entitled to judgment (of divorce) (of separation) (of annulment) (declaring the nullity of the marriage) and granting the incidental relief awarded (herein) (in the JUDGMENT signed this date)

Dated ________: New York, New York

________ day of ________, 19 ________.

Referee

[FN1] Only one of the three alternative subparagraphs (b) will be appropriate; delete the inapplicable provisions.

[FN2] Only one of the three alternative subparagraphs (b) will be appropriate; delete the inapplicable provisions.

[FN3] Only one of the three alternative subparagraphs (b) will be appropriate; delete the inapplicable provisions.

[FN4] Only one of the two alternative subparagraphs (c) will be appropriate; delete the inapplicable provisions.

[FN5] Only one of the two alternative subparagraphs (c) will be appropriate; delete the inapplicable provisions.

N.Y. Comp. Codes R. & Regs. tit. 22, subtit. D, ch. III, subch. B, Referee's report - findings of fact and conclusions of law