“The old theory was marry an older man, because they're more mature. But the new theory is: Men don't mature. Marry a younger one." Rita Rudner
“You know, of course, that the Tasmanians, who never committed adultery, are now extinct.” William Somerset Maugham
You knew I would have it all wrong. With the advent of any legislative change to our little matrimonial world, the pundits come out of the woodwork because (a) no one really knows the answer and (b) it is fun to handicap the workings of the judicial mind. So, when no fault rolled around the day after Columbus Day, 2010, I had the pleasure of adding my two cents to the crystal ball folks. After all, it would be months before some trial court weighed in on the issues and about half a year before things trickled up to the Appellate Divisions. By then, no one would remember what I said, right? So I opined that you could not bring a no fault divorce if a fault divorce had been commenced before Columbus Day. Also, since one spouse can declare the marriage irretrievably broken, how could there be any issue of fault? So jury and nonjury fault trials would be a thing of the past. Well, we now have the first rumblings from the trial bench and it seems I was wrong on both counts. In Heintz v. Heintz, Mrs. Heintz commenced an action on October 1, 2010, presumably to avoid those nasty legal counsel fee and maintenance presumptions of the new laws. On November 24, 2010 Mr. Heintz filed for divorce under the no fault statute, and then he appeared in Mrs. Heintz’ action on December 1. Since you cannot have two lawsuits seeking the same relief, Mrs. Heintz moved to dismiss. Under my view of the world, the motion should be granted but Justice Daniel Palmieri held otherwise, citing the Court of Appeals case of Motler which held no such thing. Motler allowed someone to withdraw a counterclaim to get the benefit of the then new Equitable Distribution law, but it did not hold that the new action could proceed while the old action was pending.
Closer to home I went Oh for Two with a decision of the Fourth District’s Supreme Court Justice Robert Muller in Strack v. Strack. Here a no fault divorce was commenced and a motion to dismiss was made because (a) the complaint lacked particularity, (b) there was no statement under oath that the marriage was irretrievably broken for six or more months as required by Domestic Relations Law Section 170(7), and the statute of limitations! This last argument is beyond me, since irretrievable means irretrievable. It cannot be irretrievable 6 years ago but retrievable today, could it? I guess so as Justice Muller held that the five year statute of limitations applies. Brushing aside my view that you cannot have a serious trial on fault anymore, at least if California and other states are to be believed, Justice Muller states that there is not only a right to a trial of this issue, but a jury trial also if anyone is so foolish. “I don’t care what she says, I can retrieve this marriage, especially if I have to pay those damn maintenance guidelines.” He does wisely opine that the view of whether a marriage is irretrievable does not have to be shared by both parties and he sets the fault issue down for a trial before the other stuff gets sorted out.
Oh well. Until these issues get to the appellate courts, they are at least something to talk about in a Memo of Law or a cold brew on a Friday night at Sperry’s.
As we all know, the prime determiner of child support is the income of the noncustodial spouse. Sure we pay lip service to all other issues, but for the most part the biggest factor is income. When it comes to that pesky $130,000 cap that has been around since January of 2010, you do get into need so the more you need the more you are likely to blast through that cap. Although the Third Department has blasted through the cap to the extent of $500,000, don’t rely on that. I was thinking of all this when I read about the lovely Laura Govan, the wife of Gilbert Jay Arenas, Jr., a gifted basketball player currently toiling for the Orlando Magic. It seems Ms. Govan recently submitted a budget in her support claim for what she needs to hold body and soul together for herself and three cherubs. Clothes for the kiddies? $8,000 per month on the old American Express black card. Housekeepers (but no nanny)? $5,000 per month. Landscaping? $100,000. Train set? $100,000. Just a car wash costs $675. A trip to FAO Schwartz for some kid’s toys? $35,000. Heck, $5,000 a month just to feed the sharks in the backyard pool and grotto. When you consider that the oldest child is five, this is some kind of loot. If she needs a job, I’ll hire her to help my clients fill out that nasty Statement of Net Worth that the Office of Court Administration requires. As for Mr. Arenas’ attorney, a guy named David Cornwall, he says Ms. Govan’s claims contain “numerous inaccuracies and inflammatory statements by a disgruntled and vindictive woman.” Nice. I wonder what kind of California Civility Rules allows him to say something like that in public?
Finally I would like to thank our Chief Judge Jonathan Lippman for approving for Public Comment a new Rule 151 of the Chief Administrator of the Courts. This rule prohibits a judge from being assigned to a case if the lawyer has contributed $2,500 or more to that judge’s campaign for elective office within two years. Personally I am not much of a contributor to judicial campaigns, but I have few judges who have not seen eye to eye with me over the years who will be getting a nice bi-annual check even if he or she is not running for a decade or so. Even though a judge is prohibited from knowing the amount of any contribution, this is a nice way to reinstitute the ancient practice of judge shopping to our upstate lexicon. I daresay it only takes a few dozen lawyers to conflict out every elected Supreme Court and Family Court Judge in the Capital District so a nice industry could be fashioned to pick and choose via the use of “trial counsel” for any particular case. In fact, I am filing next week the Get Rid of Your Judge, LLC with the Secretary of State. Anyone want to become a member?
Sunday, May 22, 2011
Forms Follow Functions
“Getting divorced because you don’t love a man is almost as silly as getting married just because you do.” Zsa Zsa Gabor
“I never hated a man enough to give him his diamonds back.” Zsa Zsa Gabor
You’re kidding me, right? Our friends at OCA (Office of Confused Adults) are celebrating the loss of $170 million from their $2.7 Billion budget request by requiring a slew of silly useless forms that are driving up the cost of divorces and everything else. Why? Beats me. Here’s my favorite. Sometime ago the Powers that Be thought it was a good idea to create a new form UCS 111 that one could fill out in a New York minute because it allowed for such things as NA (not applicable) and UK (I dunno). It asked for the percentage of distribution to each party, which to me is always unknown as I can never fathom the value of the little treasures left in the home. I am sure this went to some vault at 25 Beaver Street in NYC so some bean counters can compile statistics on the child support standards or the number of children in the average New York divorce or something. No big deal. Now because of the “authority vested in me” the Chief Administrative Judge has gone hog wild by requiring a new UCS 111A for use only in Albany and seven other counties outside of the Third and Fourth districts. This form is unique in that (a) it is the only form not available online at the handy Unified Court System website, (b) it requires a No. 2 pencil or blue or black ink and (c) it has a bunch of little circles that need to be filled in like the Iowa Tests of Basic Skills that are given to grade school kids all over the country. I tip my hat to anyone who can fill this thing out in black or blue ink as I had to erase stuff at least five times. It asks for nice things such as whether “the formula” was used in determining final maintenance even though THERE IS NO FORMULA FOR FINAL MATINENANCE. Duh. They want to know the health of each party, but only Ο Good, Ο Fair or Ο Poor. Good luck on filling that one Doc, and be sure you fill in the “O” completely now. They want to know the value of any “other financial obligations” aside from maintenance, child support and debt. I am still trying to figure that one out. Finally they want to know the gross value of any professional license divided, but not the amount distributed. What possible use is there for that information? Now this four page gem has to be mailed directly to OCA in New York City. It cannot be folded or stapled under penalty of death. It takes a good half an hour to an hour to complete unless you are a lot more dexterous than I am. Heaven help the pro se litigants who have to navigate this Byzantine tome. The form says it is for the Law Revision Commission’s study on maintenance guidelines which is curious since the preliminary report of the LRV was due May 13 and this form was only first required on April Fool’s Day. When I inquired of the minions at OCA if I could get this thing in Microsoft Word like all the other forms I was told, “Nope, get a number 2 pencil and see the Chief Clerk.” Who is that? St. Peter? No, you cannot get the UCS 111A on the OCA website, but you CAN get the hand written bail undertaking of Dominique Strauss-Kahn. I know that’s a popular item for my clients. You cannot make this stuff up.
As if that wasn’t bad enough we now have the nifty new Matrimonial Addendum to the Request for Judicial Intervention, known hereabouts as the RJI. Do you know what an RJI is? It is a little letter to the Supreme Court Clerk to assign a judge to a case for which we pay $95. Again, no big deal. Well that wasn’t good enough, so now it has a Matrimonial Addendum otherwise known as form UCS-840M (3/2011). Where is Franz Kafka when you really need him? This thing requires all the prior names ever used by any litigant. In my case that would be freckle face, duck walker, copper head, four eyes, Ashkenazi snout and about thirty other monikers I cannot write here. For no known reason, in order to get a judge assigned you now need to list all addresses for both litigants for the past three years and the litigants’ dates of birth.
Did you know we have a form that comes with its own warning? There is an eight page Stipulation/Order form for contested matrimonials that is thankfully ignored by most of our judges because it serves no purpose. Now it says on the Unified Court system website, “Warning: Prior to using this form, please contact your local Supreme Court Clerk’s Office to determine if they have additional requirements.” Gadzooks. Makes me wonder that kind of horrors befall you if you try to use this thing unsupervised.
And in case you missed it, the courts are now closed for business as of 4:30 p.m. unless the trial judge gets special dispensation from some Übermensch who spends his or her time waiting by the phone late in the day to see what jurist has the temerity to waste the precious resources of the court system in pursuit of someone’s justiciable dispute.
Of course, one needs to look at the big picture here. For example the Chief Judge has made his sacrifices. No, not in firing the pedants who create and compile the worthless forms, and not eliminating the civil servants who slave away at the new “problem-solving” courts. He has announced that after three years, work is going to stop on the $23 million sleeping quarters for the five out of town Court of Appeals judges for the 66 days they are in Albany. Court of Appeals spokesman Gary Spencer channeled Arnold Schwarzenegger’s conscience when he said, “In the context of the times, it did not look like the best thing to be doing." Too bad. Someone should tell that to Bunkoff General Contractors who must not have seen the memo.
In any event, we seem to have lost sight of the real purpose of the court system, which is to help people resolve their differences in a civil, timely manner. Everything that is happening now is contrary to that prime directive. As matrimonial lawyers, we are restricted to charging an hourly rate, and no one thinks of how all this red tape increases the cost of having people get on with their lives after the breakup of their marriages. Is it that important to compile statistics, or should we just eliminate everyone and everything that does not help people resolve their disputes? Let the judges have some autonomy to help us get people where they need to be without all this rigmarole. Isn’t that why we became lawyers and judges in the first place, or did I miss something along the way? I probably did.
“I never hated a man enough to give him his diamonds back.” Zsa Zsa Gabor
You’re kidding me, right? Our friends at OCA (Office of Confused Adults) are celebrating the loss of $170 million from their $2.7 Billion budget request by requiring a slew of silly useless forms that are driving up the cost of divorces and everything else. Why? Beats me. Here’s my favorite. Sometime ago the Powers that Be thought it was a good idea to create a new form UCS 111 that one could fill out in a New York minute because it allowed for such things as NA (not applicable) and UK (I dunno). It asked for the percentage of distribution to each party, which to me is always unknown as I can never fathom the value of the little treasures left in the home. I am sure this went to some vault at 25 Beaver Street in NYC so some bean counters can compile statistics on the child support standards or the number of children in the average New York divorce or something. No big deal. Now because of the “authority vested in me” the Chief Administrative Judge has gone hog wild by requiring a new UCS 111A for use only in Albany and seven other counties outside of the Third and Fourth districts. This form is unique in that (a) it is the only form not available online at the handy Unified Court System website, (b) it requires a No. 2 pencil or blue or black ink and (c) it has a bunch of little circles that need to be filled in like the Iowa Tests of Basic Skills that are given to grade school kids all over the country. I tip my hat to anyone who can fill this thing out in black or blue ink as I had to erase stuff at least five times. It asks for nice things such as whether “the formula” was used in determining final maintenance even though THERE IS NO FORMULA FOR FINAL MATINENANCE. Duh. They want to know the health of each party, but only Ο Good, Ο Fair or Ο Poor. Good luck on filling that one Doc, and be sure you fill in the “O” completely now. They want to know the value of any “other financial obligations” aside from maintenance, child support and debt. I am still trying to figure that one out. Finally they want to know the gross value of any professional license divided, but not the amount distributed. What possible use is there for that information? Now this four page gem has to be mailed directly to OCA in New York City. It cannot be folded or stapled under penalty of death. It takes a good half an hour to an hour to complete unless you are a lot more dexterous than I am. Heaven help the pro se litigants who have to navigate this Byzantine tome. The form says it is for the Law Revision Commission’s study on maintenance guidelines which is curious since the preliminary report of the LRV was due May 13 and this form was only first required on April Fool’s Day. When I inquired of the minions at OCA if I could get this thing in Microsoft Word like all the other forms I was told, “Nope, get a number 2 pencil and see the Chief Clerk.” Who is that? St. Peter? No, you cannot get the UCS 111A on the OCA website, but you CAN get the hand written bail undertaking of Dominique Strauss-Kahn. I know that’s a popular item for my clients. You cannot make this stuff up.
As if that wasn’t bad enough we now have the nifty new Matrimonial Addendum to the Request for Judicial Intervention, known hereabouts as the RJI. Do you know what an RJI is? It is a little letter to the Supreme Court Clerk to assign a judge to a case for which we pay $95. Again, no big deal. Well that wasn’t good enough, so now it has a Matrimonial Addendum otherwise known as form UCS-840M (3/2011). Where is Franz Kafka when you really need him? This thing requires all the prior names ever used by any litigant. In my case that would be freckle face, duck walker, copper head, four eyes, Ashkenazi snout and about thirty other monikers I cannot write here. For no known reason, in order to get a judge assigned you now need to list all addresses for both litigants for the past three years and the litigants’ dates of birth.
Did you know we have a form that comes with its own warning? There is an eight page Stipulation/Order form for contested matrimonials that is thankfully ignored by most of our judges because it serves no purpose. Now it says on the Unified Court system website, “Warning: Prior to using this form, please contact your local Supreme Court Clerk’s Office to determine if they have additional requirements.” Gadzooks. Makes me wonder that kind of horrors befall you if you try to use this thing unsupervised.
And in case you missed it, the courts are now closed for business as of 4:30 p.m. unless the trial judge gets special dispensation from some Übermensch who spends his or her time waiting by the phone late in the day to see what jurist has the temerity to waste the precious resources of the court system in pursuit of someone’s justiciable dispute.
Of course, one needs to look at the big picture here. For example the Chief Judge has made his sacrifices. No, not in firing the pedants who create and compile the worthless forms, and not eliminating the civil servants who slave away at the new “problem-solving” courts. He has announced that after three years, work is going to stop on the $23 million sleeping quarters for the five out of town Court of Appeals judges for the 66 days they are in Albany. Court of Appeals spokesman Gary Spencer channeled Arnold Schwarzenegger’s conscience when he said, “In the context of the times, it did not look like the best thing to be doing." Too bad. Someone should tell that to Bunkoff General Contractors who must not have seen the memo.
In any event, we seem to have lost sight of the real purpose of the court system, which is to help people resolve their differences in a civil, timely manner. Everything that is happening now is contrary to that prime directive. As matrimonial lawyers, we are restricted to charging an hourly rate, and no one thinks of how all this red tape increases the cost of having people get on with their lives after the breakup of their marriages. Is it that important to compile statistics, or should we just eliminate everyone and everything that does not help people resolve their disputes? Let the judges have some autonomy to help us get people where they need to be without all this rigmarole. Isn’t that why we became lawyers and judges in the first place, or did I miss something along the way? I probably did.
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