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2022 | VOL. 54 | NO. 1
Family Law Review
A publication of the Family Law Section of the New York State Bar Association
Forensic Custody Evaluations: Improvement
Without Impulsiveness and Imprudence
By Lee Rosenberg, Editor-in-Chief
Military Divorce: MDRP and CRDP—A Sea Change
Double Counting of Income: Uncertainty in the
Application of the Doctrine
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Contents Family Law
Features
Review
3 Forensic Custody Evaluations:
Improvement Without Impulsiveness 2022 | Vol. 54 | No. 1
and Imprudence
Lee Rosenberg, Editor-in-Chief
IN EACH ISSUE
7 Top 20 Most Common Mistakes When
Filling Out Uncontested Divorce Forms
26 Recent Legislation,
Cases and Trends in
10 Military Divorce: MDRP and CRDP—
A Sea Change Matrimonial Law
Wendy B. Samuelson
Mark E. Sullivan
12 The NYS Spousal Support Formula:
Math or Madness?
Barbara King
13 Child Support Beyond the Age of 21—
Breaking Down New York’s New Law
Extending Child Support Obligations to
Age 26 for Individuals with Disabilities
Mitchell Y. Cohen and Alison Morris
17 Double Counting of Income: Uncertainty in
the Application of the Doctrine
Mark I. Plaine and David L. Gresen
30 Additional Decisions of Note
Lee Rosenberg, Editor-in-Chief
Publication of Articles FAMILY LAW REVIEW
The Family Law Review welcomes the submission of Editor-in-Chief
articles of topical interest to members of the matrimo- Lee Rosenberg
nial bench and bar. Authors interested in submitting Saltzman Chetkof and Rosenberg, LLP
an article should send it in electronic document for- 300 Garden City Plz Ste 130
mat, preferably WordPerfect or Microsoft Word (pdfs Garden City, NY 11530-3329
are NOT acceptable), along with a hard copy, to Lee lrosenberg@scrllp.com
Rosenberg, Editor-in-Chief, at lrosenber@scrllp.com
Editorial Assistant
The Family Law Review is published for members of the Wendy Beth Samuelson
Family Law Section of the New York State Bar Associ Samuelson Hause & Samuelson LLP
300 Garden City Plz Ste 444
ation. The opinions expressed herein are those of the
Garden City, NY 11530-3302
authors only, and not those of the Section Officers or
wsamuelson@samuelsonhause.net
Directors.
FAMILY LAW SECTION OFFICERS
Accommodations for Persons with Disabilities: Chair
NYSBA welcomes participation by individuals with Rosalia Baiamonte
disabilities. NYSBA is committed to complying with Gassman Baiamonte Gruner, P.C.
all applicable laws that prohibit discrimination against Garden City, NY
individuals on the basis of disability in the full and rbaiamonte@gbgmatlaw.com
equal enjoyment of its goods, services, programs,
activities, facilities, privileges, advantages, or accom- Vice-Chair
Joan Casilio Adams
modations. To request auxiliary aids or services or if
J. Adams & Associates, PLLC
you have any questions regarding accessibility, please
Buffalo, NY
contact the Bar Center at 518-463-3200. jadams@adamspllc.com
Publication Date: May 2022 Secretary
Peter R. Stambleck
© Copyright 2022 by the New York State Bar Association. Aronson Mayefsky & Sloan, LLP
ISSN 0149-1431 (print) ISSN 1933-8430 (online) New York, NY
stambleck@amsllp.com
Financial Officer
Michelle L. Haskin
Whiteman Osterman & Hanna LLP
Albany, NY
mhaskin@woh.com
NYSBA.ORG/FAMILY
Forensic Custody Evaluations: Improvement Without
Impulsiveness and Imprudence
By Lee Rosenberg, Editor-in-Chief
There is perhaps nothing in the realm of family law that The Blue Ribbon Commission
creates more stress, consternation, and complication than Tellingly, the Blue Ribbon Commission examined the
custody litigation. Guided by the best interest of the child issue at hand and were divided on most of the recommen-
standard—as amorphous as that term may be—our courts dations, and split 11 to 9 on eliminating forensics entirely.
have over the years established factors to be considered. Those recommendations are as follows:
Those factors provide the court with discretion to determine
custody and parenting time, along with any components 1. Propose Legislation Limiting the Use and Scope of
or conditions which relate, under the totality of the circum- Forensic Custody Evaluations.
stances. Of course, domestic violence is a statutory factor for
2. Ensure Mental Health Evaluations Are Ordered
the court to consider as is a searching of the statewide reg-
Equitably, without Regard to the Income Level of
istry of orders of protection, the sex offender registry and
Litigants.
the Family Court’s child protective records. As part of the
court’s discretionary toolbox, it has the ability in a proper 3. Create a Forensic Evaluator Certification Committee
case to direct forensic examinations to assist in making its Through Legislation or Judiciary Action.
determination. The court is not bound to follow the findings
or recommendations of the evaluator. There are those who 4. Introduce Legislation to Mandate Training of Foren-
wish to eliminate the courts’ ability to direct forensic evalu- sic Custody Evaluators.
ations or to otherwise limit their use. Previously we have 5. Expand the Availability of Discovery in Child Cus-
also addressed access to forensic reports by unrepresented tody Cases by Enacting Legislation and Providing
litigants and the dangers which that access would pose. Resources to Parties.
At present, there are three main initiatives that are ripe 6. Propose Legislation That Mandates Disclosure of
for immediate discussion: 1) The recommendations of the Conflict of Interest in Selection of Evaluators.
“Blue Ribbon Commission on Forensic Custody Evalu-
ations,” which was started by former Governor Andrew 7. Advance Legislation to Establish Equitable Access to
Cuomo and delivered to current Governor Kathy Hochul in Reports.
December 2021; 2) A bill known as “Kyra‘s Law,” which has
8. Develop Accountability Processes, Including Pass-
a number of proposals that overlap some of the Blue Ribbon
ing Legislation that Eliminates Evaluators’ Quasi-
Commission’s report, but which was generated as a result
Judicial Immunity.
of the murder of two-year old Kyra Marchetti at the hands
of her father in the midst of custody litigation; and 3) Leg- 9. Establish a Process To Further Access Use of Virtual
islation that seeks to eliminate the use of forensic custody Technology.
evaluations in their entirety.
NYSBA Family Law Review | 2022 | Vol. 54 | No. 1 3
10. Reclassification of Forensic Evaluators as “Qualified • Examining a reclassification of forensic evaluators
Mental Health Evaluators.” as “Qualified Mental Health Evaluators so there is a
clear understanding by the parties, attorneys, and the
11. Increase Resources for the Family Courts. court of their role.” (Recommendation 10)
The lack of consensus on much of the foregoing speaks • Increasing resources in our Family Courts. (Recom-
to the set agendas of some on the commission and to the mendation 11)
lack of practicing matrimonial and family law practitioner
vis-à-vis academics and those in organizations with a pre- In looking at the foregoing, there is clearly a framework
determined view on the issue. While the NYSBA Family for discussion on most of the recommendations, at least in
Law Section and the AAML New York Chapter reached out some part. A wholesale approval, however, is not appropri-
to the governor to seek participation in the process as well ate without all of the stakeholders on these issues partici-
as in the commission, those offers of participation and as- pating. Excluding the leaders of the matrimonial and family
sistance went without response. law bar from these discussions and ignoring their experi-
ence and expertise does not serve the interests of families or
Ultimately, there are recommendations or topics within children. We are, and want to be, part of the solution.
recommendations which at least, in part, make much sense:
• Providing access to mental health evaluations by Kyra’s Law (AB5398/S7425)
qualified mental health professionals and to increase This proposed legislation arises out of the most tragic
resources for poorer families. (Recommendation 2) of circumstances where the two-year-old child was shot
• Establishing a statewide body to review and approve and killed while sleeping by her father during his parent-
or deny applications of psychiatrists, psychologists ing time while in Virginia. He then set the house ablaze and
and social workers seeking to serve as forensic cus- killed himself. There were prior allegations of domestic vio-
tody evaluators throughout New York State. (Recom- lence. There are no words that would suffice to describe the
mendation 3) ongoing suffering of the child’s mother. The court systems
and the forensic evaluation process have been the focal
• Requiring mandatory and ongoing training for quali- point of the mother’s efforts in seeking to have legislation
fied mental health evaluators “with topics related to enacted to try and prevent similar tragedy in the future. It
the history of forensic evaluations, best practices in is said, however, that “(h)ard cases, it has been frequently
forensic evaluations, implicit and explicit bias, do- observed, are apt to introduce bad law.” The proposed leg-
mestic violence and intimate partner violence, child islation as drafted is not, however, the solution.
abuse, child sexual abuse, substance abuse, coercive
control, and trauma.” (Recommendation 4) As was noted by the American Academy of Matrimo-
nial Lawyers New York Chapter—while being “conscious
• Provide for the uniform methodology of obtaining of the terrible circumstances which resulted in the death of
pre-trial discovery with limitations to avoid abuse the child for whom this legislation is named and the ongo-
and harassment and to also “increase funding for in- ing efforts of her mother and others who not only support
stitutional providers that represent parents and chil- this legislation”—the bill, certainly well intended, is flawed
dren and increase the state’s rate of pay for court ap- in too many respects.
pointed counsel and Attorneys for Children (which is
currently statutorily mandated at significantly below It will delay justice and may actually do
market at $75/hour).” (Recommendation 5) great injustice; it impedes and infringes
upon necessary judicial discretion; it con-
• A disclosure of conflicts of interest in the selection of flicts with existing protections for the bene-
evaluators. (Recommendation 6) fit of children and victims of domestic vio-
lence, abuse, and neglect; it will be costly to
• Uniform provisions regarding access to forensic re-
litigants and to the judicial system, despite
ports which preserve sensitive information from dis-
it asserting there are no financial implica-
semination. (Recommendation 7)
tions; it contains unworkable and unten-
• Provide guidance and methods by which evaluators able educational provisions which will not
may be held accountable such as a decertification pro- serve the purpose for which it is intended;
cess that will provide “adequate protection against it will necessitate multiple and conflicting
harmful evaluators without scaring good evaluators hearings including separate evidentiary
from serving in this role.” (Recommendation 8) hearings; it raises due process concerns;
it contains mental health terms, defini-
• Engage in “further study to consider issues such as tions, and provisions which are problem-
the ethics of virtual evaluations, the lack of home atic, controversial, and unworkable; and it
visits, access to technology, quality of internet, safety may very well result in additional harm to
protocols, and confidentiality.” (Recommendation 9) children and victims of domestic violence,
abuse, and neglect which are unintended
4 NYSBA Family Law Review | 2022 | Vol. 54 | No. 1and not thought out or clearly understood of our framework. The opinion of an expert made with a
in the drafting . . . reasonable degree of professional certainty no doubt cre-
ates different standards of such certainty depending upon
To that end, the New York Chapter of the
the subject matter to be opined upon. And it must pass ac-
American Academy of Matrimonial Law-
cepted standards of reliability. We understand, for example,
yers suggests that an ongoing dialogue is
that expert opinion on issues involving medical procedures
required with all stakeholders, including,
or engineering or which implicate laws of physics that are
the bench and bar, members of the mental
based in the hard sense of science, provides more certainty
health profession, and victims of domestic
then an opinion regarding one’s mental health, including
violence, abuse, and neglect, in order to
the any existence of personality disorders or traits and cer-
craft better legislation which is designed
tainly as to which parent should serve as the more appro-
to serve the purpose for which is intend-
priate custodial parent.
ed. As with our February 23, 2021 letter to
Governor Cuomo, offering our Fellows to We also understand legitimate arguments regarding
volunteer for the Commission then under the dearth of empirical data to support the opinions offered
consideration to study mental health fo- by mental health professionals in providing analysis (and
rensic reports, the Academy remains ready, often recommendations) to courts on matters of custody
willing, and able to participate in and help and parenting. That being said, even experts in the hard
facilitate this dialogue. sciences can have differences of opinion and absolutes are
rarely that. Forensic custody evaluations—and those men-
The bill ignores existing laws, rules, and processes that
tal health professionals who practice in that area—remain
are designed to protect families and children and will delay
important tools to assist the court in areas where the court
justice under the weight of its mandates. It fails to consider
requires it—particularly where there are mental health is-
the actual effects, and foreseeable consequences of its un-
sues and/or pathologies existing within the family. Such
workable and conflicting provisions. The need, yet again,
edification can and does inform the court’s determination.
to engage the bench and bar in a dialogue on the issues is
crucial, but went unheeded. We must, of course, protect our There is no question that misuse or overuse of forensic
families and children. While none of us are guarantors of evaluations can often be a crutch used by a jurist who is un-
the behavior of our clients or of the other litigants, prevent- comfortable making a determination on custody without it.
ing harm to children should be a concern to all. Legislation There is no question that the cost of forensic evaluations in
is complicated enough; legislation crafted out of the emo- time and money can often do injustice and that such injus-
tions of tragedy—albeit well-intentioned—requires the in- tice can be disproportionately detrimental to lower income
put of those with some distance and perspective to make and under-served ethnic communities who do not have the
the legislation workable. kind of access to justice that they require and deserve. There
is also no question that there is a dearth of qualified forensic
Elimination of Forensics (A03503/S07742) professionals—particularly as those known professionals
This bill references Kyra’s death in its legislative memo retire—and that education of those professionals must be
as well offers a complete ban on forensic evaluations, as- mandatory to ensure that their qualifications and experi-
serting by reference that “these evaluations are ethically in- ence meet (and remain) the highest of standards.
appropriate and should be excluded from the fact-finding Eliminating the ability of a court to use its discretion
process; that “there is no scientific evidence whatsoever to engage a forensic custody evaluator, however, does a
that child custody evaluations result in beneficial outcomes disservice to the court system, to the litigants, and to the
for children; and that there is “no scientific evidence to sup- children. A custody matter, among other things, places the
port the use of forensic evaluations. However, there are litigants’ mental health condition at issue. And the right to
harmful, sometimes, fatal consequences that warrant their cross examine that expert remains as does the possibility
prohibition.” to otherwise rebut the expert’s position. In addition, that
Such position is self-limited by a goal seemingly pre- mental health condition may be much more subtle than ap-
mised on the theory that Kyra’s death would not have oc- pears on its face. It may be undiagnosed or manifest itself in
curred if there had been no forensic involvement. That posi- ways that to the outside world may be completely masked.
tion is not a tenable one. Certainly, this is often the case in instances of domestic vio-
lence which occurs behind closed doors and which causes
trauma and resultant mental health issues to the victims, in-
The Basis and Need for Discretionary Forensic cluding children. Eliminating the vital tool of forensic eval-
Evaluations uation for the courts’ use in custody determinations does
A court’s authority, subject to the limitations of its not serve justice. To the contrary, it may very well perpetu-
discretion to engage an expert in the area of controversy, ate injustice by permitting vital information to remain in
is well-established. Expert testimony intended to aid the the darkness—unproven or blurred in the cross-allegations
court (and in non-family law matters, a jury) in making of the litigants or unspoken out of fear that the allegation
determinations has a long history in case law and is part
NYSBA Family Law Review | 2022 | Vol. 54 | No. 1 5will be disbelieved or perhaps fear of the repercussions of erwise obtained through the traditional
making the allegation in the first place. means available within our adversarial
judicial process.
To be sure, there do exist guidelines and protocols to
be followed in the conduct of a forensic evaluation that are
regularly reviewed. There is raw data to be accumulated Inclusion of the Matrimonial and Family Law
and which also should become fodder for review, scrutiny Bench and Bar Is Needed
and cross-examination. As has been suggested by many, While this editorial does not propose to establish a so-
including some mental health professionals, there should lution to all of the issues raised by the use of forensic evalu-
be consistency in education, access to reports and data, ations in custody litigation, it is important to address the
the ability to depose the evaluator, etc. Further, the imple- positives and the negatives which these proposals engen-
mentation of the type of mental health panels as exists in der. It is also important to ensure that the leaders and mem-
the First and Second Departments also provides a means bers of the matrimonial and family law bar—including
of additional vetting. The Matrimonial Practice Advisory this Section, the AAML NY Chapter, and interdisciplinary
and Rules Committee (MPARC) also addressed some of the organizations—as well as those judges and mental health
difficulties of forensic evaluations in its white paper of De- professionals who toil directly in the trenches of custody
cember 2020 and reminds us again that there are varying litigation be included in the formulation, discussion, and
views on these issues but that the “well-being of children consideration of legislation in this area of practice.
and families is the primary goal of the entire legal and fo-
rensic community” and that there needs to be discussion of We not only can help, we want to help.
the varying views. It did not conclude that the elimination
of forensics served those interests. The New York State Bar Lee Rosenberg, Editor-in-
Association Family Law Section, in its September 21, 2021 Chief, is a National Second Vice
Memorandum to the Governor’s Blue Ribbon Commission President of the American Acad-
on Forensic Evaluations, referred to the MPARC white pa- emy of Matrimonial Attorneys
per and stated and a Vice President of its New
York Chapter. He is a past-chair
The NYSBA FLS shares the conclusions of
of the Nassau County Bar Asso-
the said white paper regarding the sub- ciation Matrimonial Law Com-
stantial benefits to children and litigants mittee, and a partner at Saltzman
of timely, well-founded forensic reports Chetkof & Rosenberg LLP, in
in cases where a deeper analysis of the Garden City. His email address
parties’ mental health issues is warranted is lrosenberg@scrllp.com.
and which most likely could not be oth-
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6 NYSBA Family Law Review | 2022 | Vol. 54 | No. 1The Top 20 Most Common Mistakes in Filling Out and
Filing Uncontested Divorce Form Documents in New York
Which Cause Delays
1) Names, dates, other information in documents do • Otherwise, the court will reject the papers because
not match up throughout the papers the court will think the agreement exists and was not
• For example, plaintiff enters name as Mary Smith on submitted.
summons and Mary Drew Smith on complaint.
3) Documents uploaded incorrectly
• For example, the children’s dates of birth are different
• Make sure you carefully follow instructions from
in the verified complaint and the plaintiff’s affidavit
your county about how to upload documents.
or are spelled differently or some forms contain mid-
dle names and initials and others are different.
4) Defendant’s affidavit (Form UD-7) signed prior to
filing of the summons
2) Mistakes that could have been avoided by simple
proofreading • Note: if the Defendant swears he/she has received
the summons before the summons is filed, the affida-
Be sure to have someone you trust look over the docu-
vit cannot be accepted by the court because the sum-
ments for any mistakes before you sign them.
mons would have had to have been filed first.
• For example, in the affidavit of plaintiff or defen-
dant, the box is checked that reads: “I am not seek- 5) Additional relief not listed
ing maintenance as payee as described in the Notice • You need to put in all the relief you want in the Sum-
of Guideline Maintenance (the “Notice”) (or that I mons with Notice (UD-1) or in the Verified Complaint
am not seeking equitable distribution) other than (Form UD-2) if you are using the plain Summons
what was already agreed to in a written agreement/ (Form UD-1a). (A plain summons does not contain
stipulation.” the relief requested because it always is served with
a complaint which contains the relief requested.) You
• The words “other than what was already agreed
must then repeat the relief you want in the plaintiff’s
to in a written agreement/stipulation” must have
affidavit (Form UD-6).
been crossed out in the affidavit if there was no such
agreement.
NYSBA Family Law Review | 2022 | Vol. 54 | No. 1 7• For example, if you want child support, maintenance 10) Proof of service of required notices missing
and/or equitable distribution, you need to say this • The plaintiff must have had served on the defendant
in either the Summons with Notice (or the Verified the notices in the first three forms in the Uniform
Complaint) and repeat it in the plaintiff’s affidavit. NYS Uncontested Divorce Packet of Forms. These
three forms are:
6) Prior court orders: missing
1) Maintenance Guidelines Notice
• For example, there is a prior Family Court Order of
support or custody and visitation. You must include a 2) Notice of Automatic Orders
legible (clear) full copy with your papers. If the child
referred to in the Family Court Order is now over 18, 3) Notice Concerning Continuation of Health Care
the Supreme Court cannot continue the Family Court Coverage
custody order. • NOTE: You can find them posted on the web at:
Uncontested Divorce Forms, nycourts.gov (http://
7) Separation agreement or stipulation of settlement ww2.nycourts.gov/divorce/divorce_withchildre-
(a) Missing. nunder21.shtml).
(b) No proof of filing and filing fee payment with the
11) Missing summons
county clerk.
• The summons is how your case starts. Without it
(c) Not properly notarized with a special form of no- your case must be rejected.
tary called an “acknowledgement in the form of a
deed.” • You must use a summons that is only used for a di-
vorce action—It says on it “Action for Divorce.”
• This is different from the form of notary that simply
says “sworn to before me.” 12) Required documents or information missing
• See https://dos.ny.gov/system/files/docu- • For example: affidavit(s), worksheets, certificate of
ments/2021/08/aocform.txt for a copy of the special dissolution, UCS-111 or NYS Case Registry Form
form. missing or incompletely filled out.
• Where information is requested, such as health insur-
8) Affidavit of service is missing ance information for the children (e.g., which party is
• An Affidavit of Service (UD-3) is proof that the defen- responsible for payment and names of insurers, iden-
dant was served with the summons. tification and types of coverage), you cannot leave
blank boxes or lines—you must fill them in.
• In the Affidavit of Service, the server swears or af-
firms before a Notary Public that the defendant was • UD-8(1) is required if one of the parties seeks main-
personally served. tenance or child support; UD-8(2) is required if one
of the parties seeks maintenance; UD-8(3) with Ap-
• The defendant can waive (not require this) in writing.
pendix G filled out is required if there are children
• The server must be someone other than you over of the marriage under 21, and you must fill out the
the age of 18 (Remember you cannot serve the docu- low-income exemption portion of Appendix G.
ments yourself).
• If there is a written agreement or stipulation of the
parties as to child support, it will be up to the court
9) Affidavit of service does not contain (have) re-
to approve it, and you must give the court enough
quired information
information about the parties’ income to do so.
• Incomplete description of person served (i.e., age,
height, weight) or photo (picture) missing even • On the summons, you must give the basis of venue
though affidavit recites photo was used to identi- (where the action is brought), and if the basis of ven-
fy—or photo submitted without a statement that the ue is the residence of the plaintiff, you must give the
photo fairly and adequately represented defendant’s plaintiff’s address unless you have obtained an order
appearance. of confidentiality from the court.
• Affidavit of service shows that service was made on 13) Required language missing from affidavits, find-
Sunday. (Sabbath observers cannot be served on the ings of fact and conclusions of law or judgment of
Sabbath). divorce
• Questions regarding defendant’s military service on • For example, an agreement or stipulation between
Affidavit of Service not filled out. the parties as to child support must state all of the
following:
8 NYSBA Family Law Review | 2022 | Vol. 54 | No. 11) The parties have reviewed the Child Support Stan- • If a document is notarized outside the United States,
dards Act for calculating child support. it is best to speak to an attorney to make sure it is in
proper form.
2) The amount of child support required to be paid
would be $_____ per year. This amount should be 19) Improper Foreign Service
the correct amount unless we agree to “Deviate
“from (not follow) the amount in the Act. • If it is necessary to serve the defendant outside the
United States, it is best to speak to an attorney.
3) If we agree to deviate from this amount, our rea-
sons are stated below: • Foreign service can be complicated.
• It is not enough to simply pay for airfare for service
abroad.
• Every document in your papers must state the same 20) Improper submission of papers
things. • The papers must contain email or fax numbers so that
the court can contact you.
14) Parties try to “waive” (not have) requirements of
• For both e-filed and hard copy filings, divorce papers
the child support standards act rather than “devi-
must be submitted to the county clerk for payment
ate” (not follow it)
of the fees prior to submission of the Summons with
• There must be a payment of at least $25 per month Notice (Form UD-1) or the Summons (UD-1a) and
unless the court decides it would be unjust and in- Verified Complaint (Form UD-2).
appropriate based on certain factors required by the
statute. • The Note of Issue (Form UD-9) and RJI (Form UD-13)
with RJI Addendum (if there are children) must be
• You cannot agree not to pay any child support. uploaded separately on NYSCEF (if you are e-filing).
• You have to tell the court why you are asking for this,
and the court will decide if they are willing to ap-
prove the child support amount you are asking for.
15) Social Security Numbers missing or redacted
(crossed out)
• This is especially important in cases with children for
child support enforcement but is required in all cases.
Source: Office of the Statewide Coordinating Judge for
16) Form of papers not proper form
Matrimonial Cases, https://www.nycourts.gov/legacy-
• Do not use two-sided copies. PDFS/divorce/Top-20-Most-Common-Mistakes-When-
• Papers must be on white paper in black ink as re- Filling-out-UD-Forms.pdf.
quired by law.
17) Corrections on previously sworn affidavits
• Affidavit must be redone and sworn to and notarized
again.
• You cannot just fix or change a form once it was nota-
rized—it needs to be notarized again.
18) Notarization
(a) Signatures not notarized.
(b) Notary’s commission expired.
Check the stamp the notary put on the document to
make sure the date of their commission ending has
not passed when they signed it.
(c) Not signed in front of notary.
(d) Improper Foreign Notarization.
NYSBA Family Law Review | 2022 | Vol. 54 | No. 1 9Military Divorce: MDRP and CRDP—A Sea Change
by Mark E. Sullivan
Introduction pay; the amount waived, however, is made up by CRDP.
Is military disability retired pay divisible in divorce? Thus, he receives his full $2,000 each month as well as the
Is concurrent disability and retired pay divisible? A recent $1,200 from the Department of Veterans Affairs.
administrative ruling by the Department of Defense sheds
new light on dividing CRDP when there is a disability re- Division of CRDP: From Canon to Canard
tirement and a divorce. Let’s see what the new rule is. It has long been an assumption of military divorce prac-
titioners that CRDP paid in connection with MDRP could
Disability Retirement and Divorce not be divided. The reasoning behind this canon was that
When a servicemember (SM) is found unfit to continue CRDP was simply the return of waived retired pay and,
serving, he or she is separated with a disability discharge.1 since the waived retired pay was non-divisible (in most
A military disability rating of 30% or more, or the comple- cases), so was the CRDP which restored it.
tion of at least 20 years of service, means that the SM’s In a typical case, Jane Doe (the non-military spouse or
separation comes with retired pay, often called MDRP, or former spouse) had few options to deal with the loss of
military disability retired pay. By and large, MDRP is not di- a major marital asset, the military pension of her soon-to-
visible as property at divorce.2 If the disability retiree elects be-ex. She might negotiate spousal support payments from
to receive VA disability compensation, that money is also John, since alimony is not property division and the gar-
non-divisible. nishment of alimony is not barred in a disability retirement
The receipt of VA disability pay means that the retiree case. She might negotiate for a greater share of other mari-
must waive an equal amount of retired pay.3 This is called tal or community property. Or she might just write it off.
the “VA waiver.” This offset is remedied, however, by a A new decision by a little-known administrative tri-
statutory payment called Concurrent Disability and Retired bunal within the Defense Department has changed all of
Pay, or CRDP.4 CRDP restores the amount of waived retired that. It’s a major change that makes the former assumption
pay.5 For example, if John Doe receives $2,000 in MDRP (non-divisibility) into a canard, i.e., an unfounded rumor
monthly and he elects to get $1,200 per month VA disabil- or story.
ity compensation,6 then he must waive $1,200 of his retired
10 NYSBA Family Law Review | 2022 | Vol. 54 | No. 1The CAB Decision is already receiving alimony as a substitute for pension di-
On March 1, 2022, the Claims Appeals Board (CAB) vision, she may want to “let sleeping dogs lie,” since the
rendered a Reconsideration Decision in Claims Case No. spousal support payments she’s getting are tax-free under
2016-CL-091608.3. The case holds that the Uniformed Ser- the Tax Cuts and Jobs Act (TC&JA).
vices Former Spouses’ Protection Act (USFSPA) allows There’s an impact as well for the retiree, John Doe, if he
CRDP paid to a disability retiree to be divided as property in a is paying alimony in lieu of pension division. The TC&JA
divorce case, since it is the payment of longevity retired pay (not makes his spousal support payments non-deductible; the
the restoration of disability retired pay). The essence of the CAB garnishment payments of pension division, however, are
ruling is in the second-last paragraph of the opinion: excludable from John’s taxable income, so (in his words)
In this case, the member retired under “That’s a tax deduction!” He may want to ask his lawyer
Chapter 61 and subsequently became en- about “revisiting” the alimony settlement to try to convert
titled to receive CDRP. The restoration of it into pension division.
his retired pay under the statute authoriz- It is important that both parties and their attorneys
ing CRDP, 10 U.S.C. § 1414, is subject to know about the divisibility of CRDP in the disability retire-
division under the USFSPA. CRDP is a res- ment case when the divorce is in the process of negotiations
toration of retired pay based on longevity, and settlement.9 The former spouse needs to know that
which is 20 years of service. It is divisible there is a benefit that may be divided and that she needn’t
under the USFSPA. The USFSPA is consis- push for an alimony award as a substitute for pension di-
tent with the CRDP statute and the imple- vision. The retiree needs to know that payments may be
menting regulations contained in Chapter made through a garnishment from the retired pay center in
64 of Volume 7B of the DoDFMR [Depart- appropriate cases,10 and these payments will be excluded
ment of Defense Financial Management from his income at tax time, unlike alimony payments.
Regulation]. Any contrary interpretation
would provide the member with an en-
titlement or benefit that was not explicitly Endnotes
authorized by Congress.7 1. Disability retirement for those retiring from active duty is covered
at Chapter 61 of Title 10, U.S. Code.
Impact of the Decision: On the Parties, on the 2. For an explanation of MDRP and divorce, see Q&A–Military
Disability Retired Pay, a Silent Partner infoletter at www.nclamp.gov
Government > Publications.
What is the impact of this decision on the retired pay 3. 38 U.S.C. §§ 5304-5305.
centers?8 It will be enormous. The decision notes that the 4. 10 U.S.C. § 1414. The amount of CRDP paid is found on the second
Defense Finance and Accounting Service, which lost the page of the disability retiree’s RAS, or Retiree Account Statement.
case before the initial administrative hearing officer, ap- 5. For an explanation of CRDP and the VA waiver, see the Silent
pealed, and lost again, has been applying this policy for 13 Partner titled Military Pension Division: The “Evil Twins”—CRDP and
years in over 20,000 cases involving divorce and disability CRSC at the same website shown at note 2.
retirees. 6. The servicemember elects VA disability compensation; it is not
automatic. CRDP is automatic, once the VA election is made and the
What does this decision mean for the former spouse, VA rating is 50% or greater, with the Department of Veterans Affairs
Jane Doe? When there was no alternative settlement ben- notifying the retired pay center of this.
efit that Jane received, she may want to ask the court for a 7. To find the CAB decision, go to the webpage of the Defense
military pension division order to divide the CRDP. If Jane Office of Hearings and Appeals, Claims Division: https://doha.
ogc.osd.mil/Claims-Division/DOHA-Claims-Appeals-Board-
Decisions/2022-DOHA-Claims-Appeals-Board-Decisions/. Click
on this decision: 2016-CL-091608.3.pdf.
Mark Sullivan is a retired Army
8. The retired pay center for the Army, Navy, Air Force and Marine
Reserve JAG colonel. He prac- Corps, as well as the National Guard and the Reserves, is the
tices family law in Raleigh, N.C. Defense Finance and Accounting Service, or DFAS. For the Coast
and is the author of The Military Guard and the officer corps of the Public Health Service and the
Divorce Handbook (Am. Bar National Oceanic and Atmospheric Administration, retired pay is
administered by the Coast Guard Pay and Personnel Center.
Assn., 3rd Ed. 2019). A Fellow of
the American Academy of Mat- 9. As mentioned in note 4 above, the place to find information about
the CRDP amount is on page two of the RAS (Retiree Account
rimonial Lawyers, Sullivan has Statement). To ascertain whether the SM received a disability
been a board-certified specialist separation, check the individual’s retirement orders and also the
in family law for over 30 years. DD Form 214 or “Report of Separation.” For DoD retirees, the
He consults with lawyers nation- letter sent at retirement from DFAS to the SM stating how his or
her retired pay was calculated also contains information about
wide on military divorce issues and in drafting military disability retired pay and how it was calculated.
pension division orders. He can be reached at mark.sul-
10. Division of military retired pay through a garnishment requires
livan@ncfamilylaw.com and at 919-832-8507. an overlap of at least 10 years of marriage and 10 years of military
service. 10 U.S.C. § 1408 (d)(2).
NYSBA Family Law Review | 2022 | Vol. 54 | No. 1 11The NYS Spousal Support Formula: Math or Madness?
By Barbara King
As many couples going through divorce or separation The court noted that Mr. and Mrs. Hughes, were mar-
in New York are quickly learning, a few years back, the Leg- ried less than five years, and were, at the time of their di-
islature decided that creating a mathematical formula for vorce, in proportionately the same income positions as they
calculating spousal support (also known as spousal main- were when they got married. While Mrs. Hughes had a
tenance) was a good idea. For years, New York has had a higher income (approximately $102,000 vis-à-vis the hus-
formula for calculating child support, so why not create one band’s $41,300), the court also noted that Mr. Hughes had
for spousal maintenance? the ability to earn more and had in fact turned down oppor-
tunities to further his career and education. These factors
Well, good idea or not, relegating the reallocation of a led the court to conclude that the husband demonstrated
couple’s combined income to a simple calculation has be- no career sacrifices during the marriage nor did he contrib-
gun to be the easy way out for attorneys and the courts. ute to the wife’s career and job success. This, coupled with
Let’s face it; math doesn’t lie. But that does not mean that the wife’s obligation to pay off her student loans, led the
the results are always fair. Just because, at the time of a appellate court to affirm the trial court’s denial of spousal
separation or divorce, one party makes more than the other support to the husband despite the statutory formula dem-
does not mean that paying maintenance—because the for- onstrating that an award would result.
mula says so—is a reasonable outcome.
Further, the record reveals that the husband’s
For example, a childless couple married for 16 years income is stable and he has demonstrated an
where the wife makes $92,000 and the husband makes ability to earn extra income to supplement
$42,000 would result in the formula requiring the wife to his current employment when necessary. Su-
pay the husband approximately $10,712 a year for between preme Court, in declining to award the hus-
4.8 and 6.4 years if the statute’s “advisory guidelines” on band maintenance, also considered the wife’s
duration are followed. And, that may make sense in that efforts to assist the husband in getting a bet-
scenario, barring any issues over a party being underem- ter job and giving him ample opportunity
ployed or similar factors that could influence a court to de- to go to school and better his career, which
viate from the math. Aside from the formula’s impact on he refused. As the court noted, the husband
the sum to be paid, there is, as indicated, the advisory scale has not sacrificed anything in his career by
for duration. For a couple married between 0–15 years, the virtue of the marriage and provided no as-
scale requires support be paid for a minimum of 15% and sistance to enhance the wife’s career. As Su-
a maximum of 30% of the length of the marriage. And the preme Court provided a reasoned analysis of
scale goes up. For marriages lasting between 15–20 years, the relevant statutory factors based upon the
the duration is a minimum of 30% to a maximum of 40%; trial testimony and the parties’ financial sub-
for marriages of 20 years or more, the duration is 35% to missions, we discern no abuse of discretion
50% of the length of the marriage. in Supreme Court’s denial of maintenance
But math and duration scales aside, the Appellate Di- to the husband (See Hughes v. Hughes, 198
vision for the Third Department, in Hughes v. Hughes, de- A.D.3d at 1174).
cided on February 3, 2022, circled back to the original and The takeaway from this very insightful case is that, de-
underlying reason for maintenance, acknowledging that spite what the math says, the result should not be madness.
just because a statutory calculation results in an amount of The law remains driven by logical and reasonable factors
support to be paid, doesn’t mean it should be paid. and should not be relegated solely to calculations. To obtain
In the Hughes case, while the formula resulted in a cal- a favorable result, attorneys need to work with their clients
culation that would have required the wife to pay the hus- to determine all the underlying facts of their case that could
band support, the court, rather than simply applying the argue for deviations from the statutory formula.
math and entering an award, declined to order any spousal
support. Why? Because the court noted that statutory for-
mulas, while all well and good, should not cause them to
ignore the longstanding and unchanged maintenance pre- Barbara King is a partner at Tully Rinckey in Albany,
cept—that spousal support is meant to be rehabilitative in New York. She represents parents, spouses and other
nature; it is meant to provide relief to a lower-income spouse parties from Long Island to the Capital Region, as well
where a marriage is of long duration; where a spouse has as clients nationally and internationally, in a wide range
been out of the workforce for a number of years and has of family and matrimonial matters. She may be contact-
sacrificed their career to make non-economic contributions ed at info@tullylegal.com or at (518) 556-2294.
to the marriage.
12 NYSBA Family Law Review | 2022 | Vol. 54 | No. 1Child Support Beyond the Age of 21—Breaking
Down New York’s New Law Extending Child Support
Obligations to Age 26 for Individuals With Disabilities
By Mitchell Y. Cohen and Alison Morris
We, as practitioners, are often asked by clients whether and behavioral issues, speech-language therapy, oc-
the parent of a child can be compelled to pay child support cupational therapy which can also address sensory
beyond the age of 21, most commonly surrounding college needs, feeding therapy, physical therapy, equine ther-
expenses, graduate school expenses, or for the health care apy/animal therapy, art therapy).
or special needs expenses for their developmentally dis-
• Technology needs, such assistive technology devices.
abled child. Until now, the answer was simple. Historically,
a parent has only been chargeable for the support of a child • Additional medical or sensory tools or equipment
up to the age of 21.1 The age 21 limitation applies to educa- (noise cancelling headphones, compression vests,
tion expenses.2 This age 21 limitation also held true even if mini trampolines).
a child was disabled.3
• Prescription medications.
Previously, the only exception to this limitation was
when there is a voluntary, “express agreement in unmistak- • Additional nutritional needs, such as a gluten-free diet.
able terms” to extend the support obligation beyond the • Transportation needs:
age of 21.4 The court will enforce such an agreement but in
the absence of such an agreement the court is without the The family might need to consider if this is an
authority to direct child support of any kind beyond the age individual who might not be able to travel inde-
of 21. That has now been changed, in limited circumstances. pendently. If not, the individual will need access
to Paratransit, and there are additional costs if
On February 5, 2021, the Domestic Relations Law and the the individual is not covered by government ben-
Family Court Act were amended to extend the obligation to efits. In addition, if the individual cannot travel
pay child support beyond the age of 21 under certain circum- independently, potentially paying someone to
stances. More specifically, DRL section 240-d and FCA section travel with the individual.
413-b have been amended to provide that a person chargeable
under the law with support of a minor child is now charge- • Social needs and programs for the individual to en-
able with the support of that child until the age of 26 “when gage with peers and have a rich social life.
it shall appear to the satisfaction of the court that such person
• Adult care: When the individual cannot be alone or
is developmentally defined as defined in subdivision twenty-
can only be left alone for short durations of time,
two of section 1.03 of the mental hygiene law . . . .”
someone needs to be with them.
Why seek this additional child support? What is a developmental disability for these
Oftentimes a parent of a child with special needs bears
purposes?
the responsibility for not only additional costs for the care
of that child, but also the care of that individual when they In order to be eligible for child support through age 26,
are an adult. These additional costs and expenses that are the individual in question needs to be found developmen-
involved might not be known or anticipated at the time of a tally disabled under Mental Hygiene Law § 1.03. Mental
divorce. Examples of potential expenditures include: Hygiene Law 1.03 has four requirements:5
• Medical equipment (wheelchairs, bath chairs, adap- 1) The individual must have a developmental disability,
tive walkers). such as (or “attributable to”) “intellectual disability, ce-
rebral palsy, epilepsy, neurological impairment, famil-
• Specialists (neurologists, pediatric neurologists, de- ial dysautonomia, Prader-Willi syndrome or autism.”6
velopmental pediatricians, hearing specialists, ortho-
pedics, and psychiatrists). 2) The disability must be indefinite.
• Independent evaluations, which can cost a few thou- 3) The disability must “originate”7 before the individu-
sand dollars, and a school district or insurance com- als is 22.
pany might only pay for a portion, if at all. 4) The disability “constitutes a substantial handicap
• Private therapies (counseling, music therapy, applied to such person’s ability to function normally in
behavior analysis (ABA) for individuals with autism society.”8
NYSBA Family Law Review | 2022 | Vol. 54 | No. 1 13This last factor, the “substantial handicap to function in The Office for People with Developmental Disabilities
society,” is a crucial piece. This entails looking at whether (OPWDD) uses the exact same disability criteria to deter-
the individual’s daily living skills are impacted to the ex- mine eligibility for their services. This is the agency in New
tent and degree that the individual cannot function in so- York that provides funding for services for individuals (in-
ciety; can they travel safely independently? Can they com- cluding residential placements) who have developmental
municate and express themselves if there is an issue or they disabilities, to continue to gain skills and services and lead
are in pain or danger? Can they independently dress appro- rich and full lives. Therefore, if an individual has been found
priately for the weather or tend to their hygiene needs? Can eligible by OPWDD, that determination letter is something
the individual cook and clean and take care of their living a parent should also submit to further bolster the individ-
space? Can the individual live alone? ual’s established need. For comparison, OPWDD deems a
person to have a “substantial handicap” if their scores on
These are not black and white questions, but the core of a Vineland or ABAS fall in around the second percentile or
the question is whether this individual can or cannot func- lower, or with a standard score of 70.9
tion in society independently because of their disability. A
diagnosis alone is not sufficient, as some high functioning If the individual receives SSI (Supplemental Security
individuals with disabilities can function in society with- Income) or has a 17-A Guardianship in place, those are also
out a “substantial handicap.” Therefore, a family wants to pieces of information the judge should know. However, the
make sure that not only is the diagnosis established by the disability criteria10 for 17-A Guardianships and SSI are dif-
time the individual is 22, but it is clear the individual has ferent than the MHL definition this law and OPWDD use.
severe daily living skills issues.
Therefore, a family seeking additional years of child
As the statute states, the way a family does this is by support under this new law needs a report—likely an eval-
providing the judge with a report from a physician, a psy- uation but it is unclear if a report summarizing information
chologist, or others enumerated. This can be a neuropsy- will also be accepted—that details and confirms the indi-
chological report, a psychological report, or it is unclear vidual’s diagnosis, that the disability is indefinite, that it is
whether a written report analyzing information from pre- or was present before the individual became 22, and that
vious such reports will suffice. What a client will want to the disability impacts the individual’s ability to substan-
have detailed in their report is a diagnosis, and it might tially function in society. For this last piece the person writ-
be prudent to have a cognitive assessment, but the criti- ing the report really should be saying and giving examples
cal component is an adaptive skills assessment such as a versus a mere conclusory statement. The parent here is re-
Vineland or Adaptive Behavior Assessment Scale (ABAS). questing additional child support for their child, and this
These assessments quantitatively detail and describe how goes not only toward that need, but potentially the amount
severely deficient the individual’s daily living skills are necessary, and these details matter.
across several domains, such as independent living, com-
munication, and socialization.
14 NYSBA Family Law Review | 2022 | Vol. 54 | No. 1What about individuals living at school or this money impacting or interfering with the individual’s
adult residential placements? ability to receive government benefits12 such as SSI (Supple-
mental Security Income), which has an asset cap. An SNT
In addition to the individual having a developmental
is a great way to life plan for an individual with special
disability, the individual must, per the new law, “reside[]
needs and to prepare for their future. It can also be crucial
with the person seeking such support, and is principally
to ensure the individual can receive SSI, which is a means-
dependent on such person for maintenance.”11 That is, the
based program, because once the individual turns 18, the
individual with a disability lives with the parent seeking the
individual’s assets are looked at to determine to whether
additional years of support and cannot live independently
they meet the eligibility criteria for SSI. In addition, with
or support themselves (the report and adaptive living as-
SSI comes Medicaid, a government health insurance pro-
sessment scores will help show this latter part as well).
gram. While an unmarried individual with a disability can
Therefore, the individual in question must be actually remain on their parent’s private insurance indefinitely,13 if
living with the parent who is seeking this support. That is something happens, or when their parent passes away, this
an important piece that cannot be overlooked. Some indi- is a great back up option and should be taken advantage of
viduals who have such severe needs that they are “severely if the individual is eligible to be covered under Medicaid.
and permanently” disabled and are “unable to live inde-
An issue can arise, however, because child support
pendently” might be living and residing at a residential
payments can impact an individual’s SSI status after a child
school until they age out of school; they might then go on
turns 18, through when a parent has a legal responsibility
to live in an adult residential placement through OPWDD,
to support the child. In New York that has been through 21,
and never return to live at home. These individuals, then,
but now that might be through 26 for certain individuals.
would not be eligible for this child support under this law.
Therefore, if child support payments are going to be taking
Similarly, an individual might, at age 24, leave his or her
place after a child is 18, whether through the time the child
parent’s home to go live in an adult placement through
is 21 or 26, we strongly encourage families and parents to
OPWDD. While the individual would still be considered
speak with an elder law and special needs planning attor-
developmentally disabled and dependent on the parent,
ney who practices in this area, in order to discuss putting
he or she would no longer actually reside with the parent.
these payments into an SNT for the individual, and the type
Therefore, for the individual who is living in a residen-
of SNT that is appropriate (a First Party SNT, a third party
tial placement, and is not coming home, it appears they will
SNT, the differences, and which is appropriate given the
not meet this statute’s requirement and the non-custodial
specific child support circumstances). This way, the pay-
spouse will likely not need to provide support. However,
ments do not impact the individual’s government benefits,
if the individual does come home on weekends, breaks, or
and the payments are still being made to improve the indi-
any holidays, that is crucial to note for the court because
vidual’s life, including being put into the SNT, which can be
the parent with whom individual lives with during those
used for the benefit of the individual.14
breaks should ask for support during those times.
The new law itself also states:
If a family has a child with severe disabilities, and that
individual could eventually live in a residential placement THE COURT SHALL HAVE DISCRETION
before he or she turns 26, the family can always agree in TO ORDER THE PAYOR PARTY TO MAKE
a settlement agreement to keep child support payments SUPPORT PAYMENTS EITHER TO THE
through the time the child turns 26. That is even if the child PETITIONER OR TO THE TRUSTEE OF
does eventually reside in residential placement, or if he or AN “EXCEPTION TRUST” AS DEFINED
she moves to a group home after he or she graduates. This IN . . . 7-1.12 OF THE ESTATES, POWERS
is to continue to prepare for and support the individual, AND TRUSTS LAW [“EPTL”] IF SUCH
and, the agreement can state in that instance, that money DIRECTION WOULD ASSIST IN MAXI-
can go into a special needs trust for the individual. MIZING ASSISTANCE TO THE CHILD15
It is unclear if this will be an issue that needs to be litigat- The “exception trust” found in section 7-1.12 of the
ed—that is, if an individual does only come home on week- EPTL are SNTs. However, before asking the court to order
ends and holidays to one custodial parent, can that parent payments into any of the enumerated “exception trusts”
obtain additional support. Families and parents should think listed in the statute, we strongly recommend the family or
about this question when entering into divorce agreements, parent speak with an experienced estate planning and special
and try and resolve issues and plan ahead, if possible. needs attorney.
Special Needs Trusts and Additional Child When To Petition the Court for This Type of
Support Child Support
As stated above, parents can put money for a child with The court has jurisdiction to determine proceedings
a disability into a special needs trust (SNT). An SNT is New brought by petition and Order to Show Cause in Supreme
York’s mechanism for families to be able to place money in Court pursuant to DRL § 241 (1-b) or in Family Court pur-
a trust specifically for individuals with a disability, without suant to FCA § 413. More commonly known as the Child
NYSBA Family Law Review | 2022 | Vol. 54 | No. 1 15You can also read
