Judgment of Divorce – New Requirements

MATRIMONIAL LITIGATION…ISSUES OF INTEREST

Submitted by Ronald A. Phillips, Esq.

Member Family Law Committee

Fellow, American Academy of Matrimonial Lawyers

JUDGMENT OF DIVORCE – NEW REQUIREMENTS

Over the years Judgment of Divorce has become more complicated. A number of mandatory requirements have been added to the list. The charges to various statutes made in Chapter 398 of the session laws of 1997 have expanded the list of mandatory provisions considerably. The changes also make it more imperative to comply with the current requirements that are being overlooked by most attorneys (including the writer).

Let us first discuss the new areas. A new section has been added to the Domestic Relations Law. DRL 240-b mandates that each party's Social Security Account Number be included on the Judgment of Divorce. Perhaps that best place to put it would be in the caption below the name of the parties; it is done on the Family Court "official forms". However, this is just the beginning; a considerable amount of personal information must now be supplied to the Department of Social Services and would appear to be required to be inserted in the judgment of divorce where child support is directed, and the child support recipient is receiving "services" form the Department.

Let us first examine the new section: DRL 240-b reads as follows:

240-b Order of Support by Parent

When the court makes an order of support pursuant to section two hundred and forty of this article, and where permitted under federal law and where the record of the proceedings contains such information, the court shall require the social security number of such parent affixed to such order; provided, however, that no such order shall be invalid because of the omission of such number. Where the record of the proceedings contains such information, such order shall also include on its face the name and address of the employer, if any, of the person chargeable with support provided, however, that failure to comply with this requirement shall not invalidate such order. Where the order of child support is made on behalf of persons in receipt of public assistance or in receipt of services pursuant to section one hundred eleven-g of the social services law, THE COURT SHALL REQUIRE EACH PARTY TO PROVIDE, AND UPDATE UPON ANY CHANGE THE FOLLOWING INFORMATION TO THE COURT BY REPORTING SUCH CHANGE TO THE SUPPORT COLLECTION UNIT DESIGNATED BY THE APPROPRIATE SOCIAL SERVICES DISTRICT: SOCIAL SECURITY NUMBER, RESIDENTIAL AND MAILING ADDRESSES, TELEPHONE NUMBER, DRIVER'S LICENSE NUMBER, AND NAME, ADDRESS AND TELEPHONE NUMBER TO THE PARTIES EMPLOYERS.

(It would appear that more information than will fit "on the face" of a Judgment of Divorce is now mandated since "the warning" about review must also go there). The information required by the last part of DRL 240-b should (although not specifically mandated) also be put into the judgment of divorce where the party receiving child support is in "receipt of service" form the department of social services. "Receipt of service" is at a minimum, payment through SCU. Better practice would be to insert all this information in every judgment requiring payment of child support as will be indicated below.

Let us not forget that a judgment of divorce does not "automatically" get to the support collection in it under current procedure. You, as the attorney, are going to be required to get it "recorded" unless SSL 111-g is amended. Pursuant to SSL 111-g, a support order is entitled to services when a petition is filed in Family Court or when a DSS-2521 "Application for Child Support Services" form is filed. SSL 111-g reads as follows:

SSL 111-g. Availability of paternity and support services.

The department and the social services districts, in accordance with the regulations of the department, shall make services relating to the establishment of paternity and the establishment and enforcement of support obligations available to persons not receiving aid to dependent children upon application by such persons. Such persons must apply by (i) completing and signing a form as prescribed by the department, or (ii) filing a petition with the court or applying to the court in a proceeding for the establishment of paternity and/or establishment and/or enforcement of a support obligation, which includes a statement signed by the person is applying for child support enforcement services pursuant to the title. The department may, by regulation, require payment of an application fee for such services and the deduction of costs in excess of such fee form amount collected on behalf of such person.

Putting the current information in the judgment of divorce will be the preferred practice since a decretal paragraph must be in the judgment directing the parties to update the information by informing the Support Collection Unit. Needless to say, you won't want a client saying that the court had the information at the time of the divorce when in fact there has been a change. Neither party will want this since the changes in the law are actually non-judicial applications for an upward modification with the burden of proof as to service being presumed to be correct. The payee spouse wants to know where the payor spouse is at all times. With the presumption of proper services, the payor spouse will want the Department of Social Services to know where he/she is at all times too. Therefore, it is better practice to put the original information into the judgment. You might, at first blush, say that since payments are initially to be made directly by the non-custodial parent to the custodial parent where there is a waiver of payment through SCU, you need not include the information. While this is true, if the is a default shortly thereafter, you'll receive a call form your client asking for information such as the Driver's License Number. If the default is years later, the non-custodial may call you for the additional information (which you probably cannot find years later. If there is a "review" requested by the payee spouse, the payor spouse will certainly want to argue the "wavier" provision which may be in the agreement, but not the judgment.

What information does the department of social services require and what is their function? Said section reads in part as follows:

4-a (a) The department shall maintain and operate a state case registry that contains records with respects to:

(1) each case receiving services pursuant to this title; and

(2) each support order established of modified in the state on or after the first day of October, nineteen hundred ninety-eight.

(b) For the purpose of subparagraph two of paragraph (a) of this subdivision, the term support order means a judgment, decree, or order, whether temporary, final or subject to modification, issued by a court or an administrative agency of competent jurisdiction, including any adjusted order issued by a support collection unit, for the support and maintenance of a child, including a child who has attained the age of majority under the law of the issuing state, or a child and the parent with whom the arrearages, or reimbursement, and which may include related costs and fees, interest penalties, income withholding, attorney's fee, and other relief.

(c) Each case record in the state case registry with respect to cases described in subparagraph one paragraph (a) of this subdivision for which a support order has been established shall include a record of:

(1) the amount monthly (or other periodic support owed under the order, and other amounts (including arrearages, interest or late payment penalties, and fees) due or overdue under the order;

(2) any amount described in subparagraph one of this paragraph that has been collected;

(3) the distribution of such collected amounts;

(4) the birth date of any child for whom the order require the provision of support; and

(5) the amount of any lien imposed with respect to the order pursuant to section one hundred eleven-u of this article.

(d) The department shall update and monitor each case record in the state registry described in subparagraph one of paragraph (a) of this subdivision on the basis of:

(1) …

(Don't forget to include the children's dates of birth in the decretal paragraph indication the custody arrangement).

As you can see, even pendente lite orders are required to be registered! This will probably lead to one of several possible results by courts determining pendente lite applications:

1. Decisions that end with "Submit Order On Notice. Said order shall include social security numbers, residential and mailing addresses, telephone numbers, driver's license numbers, and names addressed and telephone numbers of the parties' employers. Counsel for the financially inferior spouse shall file the order with the department of social services", or

2. "The payor spouse shall pay the recipient spouse the sum of $______.___ per week as and form maintenance and shall continue to pay the mortgages (principal and interest), real property taxes, gas, electric, water, and cable bills, on the marital home. The payor spouse shall continue to maintain medical insurance for all household members who are eligible to be maintained on his/her health insurance policy".

3. A constrained interpretation of the above statute:

Pendente lite orders are not the "temporary" orders referred to in the statue.

In number one above, you have gather all of the information and file the order with the department of social services. In number two above, no filing is required in that there is no specific amount awarded as child support. In number three above, we ignore the statue of purposes of pendente lite applications. This would be similar t the interpretation of Child Support Standards Act whereby the courts do not have to abide by the CSSA in determining pendente lite support. I like two and three the best in that pendents lite orders include items that are best left to the parties to deal with (direct payment of household expenses such as mortgages, taxes, etc.).

Anticipate that one of the following paragraph or something similar to them will be required in judgments of divorce wherein child support is paid through the support collection unit (and perhaps all judgments where there minor children).

As a minimum the following paragraph will be required:

ORDERED, ADJUDGED, AND DECREED, that each party shall notify the Department of Social Service located at (address) in writing of any change to the following information with fourteen (14) days of such change days of such change: social security number, residential and mailing addresses, telephone number, driver's license number, and the name, address and telephone numbers of their employers pursuant to DRL 240-b, each party shall notify the Department of Social Service located at (address) in writing of any change to the following information within fourteen (14) days of such change; and it is further

The preferred practice would be to include the existing information at the time of the divorce. Since there will be reviews of support and they will be granted absent an objection to the determination that here should be an increase, the payor spouse is going to want to be sure to get notice. If the department of social services sends the notification to an improper address, you will have to prove they made a mistake. Having the proper address in last order insures that you will be able to prove that the notice was misdirected. Therefore, the following paragraph represents the better practice.

ORDERED, ADJUDGED, AND DECREED, the parties having supplied their social security numbers, residential and mailing addresses, telephone numbers, driver's license numbers, and the name of their employers pursuant to DRL 240-b, each party shall notify the Department of Social Service located at (address) writing of any change to the following information within fourteen (14) days of such change.

REQUIRED INFORMATION FATHER MOTHER

Social Security #

Street Address

City, State & Zip Code

Street Address (mailing)

City, State & Zip Code (mailing)

Home Telephone #

Driver License #

Employer's Name

Employer's Street Address

Employer's City, State & Zip Code

Employer's Telephone #

:and it is further

It should be done in all cases! Indeed, unless there is a constrained interpretation of SSL 111-b, 4-a, (a) (2), all orders must be registered. If nothing else, this would appear to guarantee full employment in the State. However, the change requiring all orders to be registered will also insure that there will be problems. Since all the forms of payment are supposed to be in the registry, the department will have to cull through judgments and agreements for child support, child care, education expensed, health insurance (as well as payment of uncovered and un-reimbursed medical expenses). This should lead to greater enforcement of the rules relating to utilization of the "official form" paragraphs set forth in 22 NYCRR 202.50, Appendix B. Absent their use, the Department of Social Services will be required to read all separation agreements to find all of the various forms of child support. This would be impossible.

Don't forget that absent a wavier, the judgment of divorce must contain the warning about reviews by the Department of Social Services. This, too, is supposed to be on the "face" of the order or judgment. The warning is as follows:

NOTE: (1) THIS ORDER OF CHILD SUPPORT SHALL BE ADJUSTED BY THE APPLICATION OF A COST OF LIVING ADJUSTMENT AT THE DIRECTION OF THE SUPPORT COLLECTION UNIT NO EARLIER THAT TWENTY-FOUR MONTHS AFTER THIS ORDER IS ISSUED, LAST MODIFIED OR LAST ADJUSTED.; UPON THE REQUEST OF ANY PART TO THE ORDER OR PURSUANT TO PARAGRAPH (2) BELOW. UPON APPLICATION OF A COST OF LIVING ADJUSTMENT AT THE DIRECTION OF THE SUPPORT COLLECTION UNIT THE PARTIES WHO, IF THEY OBJECT TO THE COST OF LIVING ADJUSTMENT, SHALL HAVE THIRTY-FIVE (35) DAYS FROM THE DATE OF MAILING TO SUBMIT A WRITTEN OBJECTION TO THE COURT INDICATED ON SUCH ADJUSTED ORDER. UPON RECEIPT OF SUCH WRITTEN OBJECTION, THE COURT SHALL SCHEDULE A HEARING AT WHICH THE PARTIES MAY BE PRESENT TO OFFER EVIDENCE WHICH THE COURT WILL CONSIDER IN ADJUSTING THE CHILD SUPPORT STANDARDS ACT.

(2) A RECIPIENT OF FAMILY ASSISTANCE SHALL HAVE THE CHILD SUPPORT ORDER REVIEWED AND ADJUSTED AT THE DIRECTION OF THE SUPPORT COLLECTION UNIT NO EARLIER THAN TWENTY-FOUR MONTHS AFTER SUCH ORDER IS ISSUED, LAST MODIFIED OR LAST ADJUSTED WITHOUT FURTHER APPLICATION BY ANY PARTY. ALL PARTIES WILL RECEIVE A COPY OF THE ADJUSTED ORDER.

(3) WHERE ANY PARTY FAILS TO FAILS TO PROVIDE, AND UPDATE UPON ANY CHANGE, THE SUPPORT COLLECTION UNIT WITH A CURRENT ADDRESS, AS REQUIRED BY SECTION TWO HUNDRED FORTY-B OF THE OF THE DOMESTIC RELATION LAW, TO WHICH AN ADJUSTED ORDER CAN BE SENT, THE SUPPORT OBLIGATION AMOUNT CONTAINED THEREIN SHALL BECOME DUE AND OWNING ON THE DATE THE FIRST PAYMENT IS DUE UNDER THE TERMS OF THE ORDER OF SUPPORT WHICH WAS REVIEWED AND ADJUSTED OCCURRING ON OR AFTER THE EFFECTIVE OF THE ADJUSTED ORDER, REGARDLESS OF WHETHER OR NOT THE PARTY HAS RECEIVED A COPY OF THE ADJUSTED ORDER.

Since we now have non-judicial applications for upward modifications with service presumed to be correct, this warning may become as significant as the one contained in Judiciary Law 756. Only time will tell.

Obviously, if the payor spouse failed to get notice of "review", he/she will want to prove that the support collection unit sent the notice to the wrong address or was otherwise responsible for his/her failure to get notice. It is in the payor's spouse best interest to insure the necessary information is in the original court order. Changes of address should be sent by certified mail, return receipt requested. If his/her spouse (recipient) supplies the address and he/she (payor spouse) doesn't get notice, the child support order will be increased without the spouse's input. Input such as he/she has not had any increase is salary and an increase would result in his/her paying more that guideline support, or that the payor spouse was actually unemployed, etc. even if the payor spouse is successful in reversing the determination that there was to be an increase, it will be in court and at considerable expense; better to be there to present arguments the first time around.

The foregoing is only the tip of the iceberg. Between now and October of a1998, there will be additional clarification to the many statutory changes contained in chapter 398. Many writers will speculate on what will happen; the Office of Court Administration and the judges will implemented the new law and indicate what is truly required. You can expect that there will may surprises. One will Probably be a revised Net Worth Statement which includes all of the information set forth in DRL 240-b.

THE NEW UNCONTESTED DIVORCE FORMS

The new uncontested divorce forms are out. All brain surgeons and rocket scientist should not be able to get uncontested divorces without hiring an attorney. Others may still have a problem. While both the forms and the instructions are excellent, they would appear to be a bit too difficult to complete for the average "pro se litigant. Many people will be going to the Supreme Court Clerk's office asking for assistance. Unless they get more people, they won't be able to help everyone. Even if they do, what they will really want is to have someone help them fill in the forms. It would seem to be an impossible task. The new forms will usher in new businesses to fill them out for a modest fee (several hundred dollars). Those who formerly sold "Do-It-Yourself Divorce Kits" will jump right back in. The courts have now provided the forms and the instructions (legal advice), so that people can no longer be charged with "practicing law without a license".

The new forms also require allegations that almost no one currently puts in matrimonial complaints [allegations about medical insurance and allegations about the children’s residence (previously, this was only required in default situations and was handled by affidavit; and it was required to comply with DRL 75-J)]. You will have to modify your existing forms.

These forms are supposed to be used in all uncontested matrimonial. Does this mean that they must be used in all matrimonials in that the majority of cases start contested and then become uncontested after an agreement is signed? How closely must you follows the forms? Will we be required to add "check-boxes" to fill in information? It s also interesting to note that he current and supposedly mandatory "J-13" (incorporation of the agreement into Judgment of Divorce) paragraph has not been included in the form judgment and two paragraphs have been used in lieu thereof. This would appear to be an oversight since it conflicts with the current rules.

You may pick up a copy of the uncontested divorce instructions booklet and the forms booklet at the Supreme Court Clerk's Office. However, supplies are limited. If the Clerk's office runs outs of forms, your can get copies in two ways. First, you can get the forms off the Internet at http;//ucs.ljx.com/toc-ud.htm. The second method is to send a blank, formatted disk (IBM compatible) to the Office of Court Administration, 25 Beaver Street, New York, NY 10004. You must include a self-addressed postage paid return envelope (preferable, if should be a floppy disk envelope). They will send you the forms in a Wordperfect format (version 6.0). (Most other word processors will read Wordperfect format).

OTHER LAWS THAT EFFECT US

There has been an amendment to Article 11 of the Real Property Tax Law (1995) that impacts upon some clients involved in a divorce proceedings. Until this year, a party had three year to redeem in the event that there was a failure to pay the real property taxes on the marital home. The property was sold at a tax sale to the highest bidder. Most divorces were resolved in this period of time and the property was normally redeemed by payment of the outstanding taxes. Unfortunately, the time period before the taxes must paid has been reduced to one (1) year, and upon the county foreclosing the lien, there is no redemption. The county owns the property; there is no sale to a third party. The county moves against all properties under a single index number, and therefore, you can't get stay. However, you now have yet another reason to present to the court to get enforcement of a pendente lite order directing payment of the mortgage and taxes. The house will be lost to the county after a year. If your have a pending case and he taxes are not being paid, make a motion. This is another area ripe for malpractice actions.

NEW CERTIFICATION RULE

The new rule regarding certification went into effect on March 1, 1998. Everyone must now certify (with some exception – criminal cases, justice courts, and some proceeding in family court). You are required to put your signature on a line with your name printed under the line on almost all documents. The new certification requirements are contained in NYCRR 130-1.1. If you have any questions, you can call 1-800-334-6442. You can also get more information if you go to the Unified Court System's Web Site at: http://ucs.ljx.com/. You should "bookmark" this site: they are posting changes that effect us all.