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Benchmarks: Journal of the New York State Unified Court System

Winter 2006

Matrimonial Commission Calls For Sweeping Changes

After a 20-month study of every aspect of New York's divorce process, the Matrimonial Commission, chaired by former Second Department Appellate Division Justice Sondra Miller, has recommended sweeping changes in the culture and practice of matrimonial litigation.

The commission's report includes a wide range of recommendations, such as improved judicial training, selection and case-management; increased use of alternative dispute resolution (ADR); increased access to representation; better coordination between Supreme and Family Courts; increased use of social workers; uniform criteria for forensic appointments; and expanded training for attorneys for children.

Recommendations include a three-tiered time line for cases based on the degree of conflict present.

Recognizing the success of matrimonial rules adopted following a 1993 report of an earlier commission focused on attorney conduct in divorce litigation - especially case-management rules - the commission found that more could be done to avoid protracted litigation, saving the parties time, money and emotional anguish. Key recommendations include adoption of early case-screening with provision of appropriate services; renewed focus on early preliminary conferences; more "dedicated" matrimonial parts with support staff and services; uniformity of process and forms among counties; and introduction of a three-tiered time line for cases based on the degree of conflict present - four months for low-conflict cases, eight months for moderate-conflict cases and 12 months for high-conflict cases. The period would be tolled during any ADR efforts.

Even terminology used in matrimonial disputes was the subject of review, resulting in the recommendation that references to "visitation" be changed to "parenting time" and "law guardian" changed to "attorney for the child."

The commission concluded that custody should be left to the discretion of the judge, with no presumption of joint or sole custody, as should the decision whether to appoint an attorney for the child. A majority recommended that the decision to request an opinion or recommendation on custody from a forensic expert should also be left to the judge's discretion, and that the order of appointment should specify the scope of the expert's report.

Among recommendations requiring legislation, a majority of the commission support no-fault divorce, providing that final judgment is entered only after resolution of all economic and custody issues.

In the course of its work, the commission held public hearings, conducted surveys and heard from individuals personally affected by divorce, judges, attorneys, bar association representatives, academics and forensic experts.

The report is available at: www.nycourts.gov/reports.

Winter 2006 PDF Format
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State of the Judiciary Judicial Elections Report Summary Jury Trials Indigent Defense Services Multi-Hat Judge Matrimonial Commission Solo & Small Firm Practice Office of Self-Represented National Adoption Day Court Reporters Listening Conference Construction Update Historic Courthouses and Trials Did You Know? Judicial Institute Calendar UCS Katrina Fund Update Black History Month

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Web page updated: September 1, 2006 - www.NYCOURTS.gov