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Civil Proc Q Re Marital Filings in Westchester Cty, NY

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I have a civil procedure question relating to matrimonial law in Westchester County New York. I have been legally separated pursuant to a judgement for eight years and my spouse has now filed a notice of motion to convert to a final divorce. I have no objection to the divorce, but our underlying oral stipulation on child support was previously vacated for non-compliance with the CSSA and contains numerous ambiguities. My spouse is attemtping to use the Proposed Findings and Judgment to bootstrap faulty interpretations of the stip onto the judgement of divorce. All I want to do is propose alternative language for the findings, conclusions of law, and judgment--confined to all that is necessary to grant the divorce (For religious reasons, I do not want to file a cross-motion for divorce with my language). I am a lawyer (in-house regu;atory--not a litigator) and can handle the arguments (simple answer and accompanying legal memo)--I just want to make sure I follow proper procedure. Is providing an Answer that provides the alternative language sufficient or do I need to make another motion? My spouse has not asked for otal argument on the appearance date--so my understanding is that a properly served answer is sufficient. Is this correct?


 


FWIW, when I had similar issues on an attempt by my spouse to use a Notice of Settlement to convert two years ago---it turned out the court rejected it as improperly filed.

Submitted: 1 year ago.
Category: Family Law
Expert:  LawHelpNow replied 1 year ago.

Hello Counselor,


It's very nice to hear from a fellow Jurist, and I would be happy to help out if possible. I'm what I suppose you could call a "procedure geek", so this sort of thing is generally right up my alley.


Could you please just clarify one point for me, in terms of the procedural posture of the case?


I'm referring to your prior descriptions:

 

here

 

and

 

here


Since those dates, could you just briefly describe what has transpired? In particular, I'm wondering about any new developments or changes since those previous posts (so I can avoid duplication or repetition)?


Thanks!


Ben, J.D.

Customer: replied 1 year ago.

Some further background is helpful. There is a long procedural history, but this is what's relevant for today


 


Dec. 2005: Judgment of Legal Separaiton Entered.


 


July 2006: Basic Child Support Vacated.


 


August 2007: Basic Child Determined and ordered by Court--BUT THE JUDGEMENT WAS NEVER AMENDED TO REFLECT THIS ORDER. My spouse/counsel tried to do so, but the revised findings etc., she proposed were wrong and I said I would challenge them--such that they were never filed.


 


May 2011: wife tried to proceed to a divorce on a Notice of Settlement with the same faulty revised findings etc. I did not think this was the right procedural step, and while I was willing to concede grounds for the divorce, I submitted counter findings of fact, conclusions of law and a proposed judgment--narrowly tailored to grant the divorce. This was accompanied by a Memo of Law explaining the counter proposals.


 


August 2012: Supreme Court said it could not sign any documents because there was a Judgement of Separation and that a Summons and Complaint for divorce must be filed and proceed as a contested or uncontested divorce.


 


My wife's present motion presumably satisfies that August 2012 demand. I don't want to contest grounds for the divorce, but simply wish to submit counter FoF, CoL, and a Judgment that contains all essential information for a divorce without prejuding any potential future actions on the stip. My experience in 2005 was that if language is in the FoF, etc., it creates a presumption (impression may be better word) that is hard to overcome--even if those FoF, etc., are later shown to be false.


 


 


 


 


 


 

Expert:  LawHelpNow replied 1 year ago.
Hello again Counselor,
My name isXXXXX'm a licensed attorney. Glad to try and help out.
Sure sorry for the circumstances, truly. My heart goes out to you.
I appreciate your patience in writing back and forth to understand the case. Your explanation was great, and it all makes sense now.
Accordingly, I'm pleased to share some good news with you, as follows. I have indeed seen and been involved in quite similar instances, so I can speak from some experience here. Alright, here's the botXXXXX XXXXXne. There was a procedural defect in May 2011 as evidenced by the August 2012 difficulty. Fortunately, your wife has cured that problem in terms of procedure. In other words, the matter is properly before the Court, you're not trying to resist the divorce or contest the underlying grounds, etc. Your only issue at this juncture is to make sure the factual findings, legal conclusions and final judgment are accurate and comport with your position. I realize that's pretty abbreviated, but hopefully it basically touches upon where things stand.
Having said all of that, here's how I would proceed. There's no need for a Request for Judicial Intervention. I mention that just as an aside, as it seems like a logical thought, but you're not asking for a motion or a conference to be held. You're beyond that point, actually, and are ready for judgment to be entered, as long as it's correct and expresses your side of things. In the end analysis, then, the proper answer to each of your three questions is "yes":
"Is providing an Answer that provides the alternative language sufficient or do I need to make another motion? My spouse has not asked for otal argument on the appearance date--so my understanding is that a properly served answer is sufficient. Is this correct?"
You will submit your language (no need for another motion), which places before the Court your proposed Findings of Fact and Conclusions of Law. If you don't already have it before you (I suspect you do, though), here's a handy resource:
Findings of Fact and Conclusions of Law
Also, and again I suspect you already have it, but this is also helpful:
Matrimonial Judgment Checklist
You've been through a rather protracted separation, with a Judgment of Separation and so forth. That has all led up to your wife filing a Summons and Complaint for Divorce, which of course takes us to the present day. I realize the temptation to see the need for another motion (at least sometimes I can get caught up in that line of thinking), but that's really not indicated here. Rather, you're seeing the finishing line well within sight, meaning filing your Answer incorporating your revised language. Doing so places your argument before the Court, and no additional motion is necessary. In fact, it would very likely muddy the waters and be counter-productive in the end.
If you have a follow-up question or need clarification, please just say the word by using "reply" to reach me.
I truly hope all works out for you.
Take care,
Ben, J.D.
Customer: replied 1 year ago.

Perfect! That's exactly what I needed to know. Thanks.

Expert:  LawHelpNow replied 1 year ago.

Hi there Counselor,

Thanks for writing back...great to hear from you!

You're quite welcome...my pleasure entirely.

Thank you for taking the time to write back and let me know my answer was helpful, which means more to me than I can say.


Hang in there and know I'm holding a good thought for you!

Kind regards,

Ben, J.D.

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Experience: Relax. Let's work together. Practical solutions.
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