Rule 202.16. Application of Part 202 and Section 202.16. Matrimonial actions; calendar control of financial disclosure in actions and proceedings involving alimony, maintenance, child support and equitable distribution; motions for alimony, counsel fees pendente lite, and child support; special rules

(a) Applicability of Part 202 and Section 202.16.

(1) Part 202 shall be applicable to civil actions and proceedings in the Supreme Court, including, but not limited to, matrimonial actions and proceedings, except as otherwise provided in this section 202.16 and in sections 202.16-a, 202.16-b, and 202.18, which sections shall control in the event of conflict.

(2) This section shall be applicable to all contested actions and proceedings in the Supreme Court in which statements of net worth are required by section 236 of the Domestic Relations Law to be filed and in which a judicial determination may be made with respect to alimony, counsel fees, pendente lite, maintenance, custody and visitation, child support, or the equitable distribution of property, including those referred to Family Court by the Supreme Court pursuant to section 464 of the Family Court Act.

(b) Form of Statements of Net Worth. Sworn statements of net worth, except as provided in subdivision (k) of this section, exchanged and filed with the court pursuant to section 236 of the Domestic Relations Law, shall be in substantial compliance with the Statement of Net Worth form contained in appendix A of this section.

(c) Retainer Agreements

(1) A signed copy of the attorney's retainer agreement with the client shall accompany the statement of net worth filed with the court, and the court shall examine the agreement to assure that it conforms to Appellate Division attorney conduct and disciplinary rules. Where substitution of counsel occurs after the filing with the court of the net worth statement, a signed copy of the attorney's retainer agreement shall be filed with the court within 10 days of its execution.

(2) An attorney seeking to obtain an interest in any property of his or her client to secure payment of the attorney's fee shall make application to the court for approval of said interest on notice to the client and to his or her adversary. The application may be granted only after the court reviews the finances of the parties and an application for attorney's fees.

(d) Request for Judicial Intervention.

(e) Certification of Paper and Obligations of Counsel Appearing Before the Court

(1) Every paper served on another party or filed or submitted to the court in a matrimonial action shall be signed as provided in section 130-1.1a of this Title.

(2) Counsel who appear before the court must be familiar with the case with regard to which they appear and be fully prepared and authorized to discuss and resolve the issues which are scheduled to be the subject of the appearance. Failure to comply with this rule may be treated as a default for purposes of Rule 202.27 and/or may be treated as a failure to appear for purposes of Rule 130-2.1, provided that, in matrimonial actions and proceedings, consistent with applicable case law on defaults in matrimonial actions, failure to comply with this rule may, either in lieu of or in addition to any other direction, be considered in the determination of any award of attorney fees or expenses.

(f) Preliminary Conference.

(1) In all actions or proceedings to which this section of the rules is applicable, a preliminary conference shall be ordered by the court to be held within 45 days after the action has been assigned. Such order shall set the time and date for the conference and shall specify the papers that shall be exchanged between the parties. These papers must be exchanged no later than 10 days prior to the preliminary conference, unless the court directs otherwise. These papers shall include:

(i) statements of net worth, which also shall be filed with the court no later than 10 days prior to the preliminary conference;

(ii) all paycheck stubs for the current calendar year and the last paycheck stub for the immediately preceding calendar year;

(iii) all filed State and Federal income tax returns for the previous three years, including both personal returns and returns filed on behalf of any partnership or closely held corporation of which the party is a partner or shareholder;

(iv) all W-2 wage and tax statements, 1099 forms, and K-1 forms for any year in the past three years in which the party did not file State and Federal income tax returns;

(v) all statements of accounts received during the past three years from each financial institution in which the party has maintained any account in which cash or securities are held;

(vi) the statements immediately preceding and following the date of commencement of the matrimonial action pertaining to:

(a) any policy of life insurance having a cash or dividend surrender value; and

(b) any deferred compensation plan of any type or nature in which the party has an interest including, but not limited to, Individual Retirement Accounts, pensions, profit-sharing plans, Keogh plans, 401(k) plans and other retirement plans. (1-a) Where both parties are represented by counsel, counsel shall consult with each other prior to the preliminary conference to discuss the matters set forth in paragraph (2) below and in NYCRR §202.11 in a good faith effort to reach agreement on such matters. Notwithstanding NYCRR §202.11, no prior consultation is required where either or both of the parties is self-represented. Counsel shall, prior to or at the conference, submit to the court a writing with respect to any resolutions reached, which the court shall “so order” if approved and in proper form. (1-b) Both parties personally must be present in court at the time of the conference, and the judge personally shall address the parties at some time during the conference.

(2) The matters to be considered at the conference may include, among other things:

(i) applications for pendente lite relief, including interim counsel fees;

(ii) compliance with the requirement of compulsory financial disclosure, including the exchange and filing of a supplemental statement of net worth indicating material changes in any previously exchanged and filed statement of net worth, and, including the number and length of depositions, the number of interrogatories, and agreement of the parties to comply with Guidelines on Electronically Stored Information. Unless otherwise stipulated by the parties or ordered by the court, interrogatories shall be no more than 25 in number including subparts; and depositions shall be no more than 7 hours long. The Provisions of NYCRR §202.20-b(a)(1) limiting the number of depositions taken by plaintiffs, or by defendants, or by third-party defendants, shall not apply to matrimonial actions.

(iii) simplification and limitation of the issues;

(iv) the establishment of a timetable for the completion of all disclosure proceedings, provided that all such procedures must be completed and the note of issue filed within six months from the commencement of the conference, unless otherwise shortened or extended by the court depending upon the circumstances of the case;

(v) the completion of a preliminary conference order substantially in the form contained in Appendix "G " to these rules, with attachments; and

(vi) any other matters which the court shall deem appropriate.

(3) At the close of the conference, the court shall direct the parties to stipulate, in writing or on the record, as to all resolved issues, which the court then shall "so order," and as to all issues with respect to fault, custody and finance that remain unresolved. Any issues with respect to fault, custody and finance that are not specifically described in writing or on the record at that time may not be raised in the action unless good cause is shown. The court shall fix a schedule for discovery as to all unresolved issues and, in a noncomplex case, shall schedule a date for trial not later than six months from the date of the conference. The court may appoint an attorney for the infant children, or may direct the parties to file with the court, within 30 days of the conference, a list of suitable attorneys for children for selection by the court. The court also may direct that a list of expert witnesses be filed with the court within 30 days of the conference from which the court may select a neutral expert to assist the court. The court shall schedule a compliance conference unless the court dispenses with the conference based upon a stipulation of compliance filed by the parties.

(4) Unless the court excuses their presence, the parties personally must be present in court at the time of the compliance conference. If the parties are present in court, the judge personally shall address them at some time during the conference. Where both parties are represented by counsel, counsel shall consult with each other prior to the compliance conference in a good faith effort to resolve any outstanding issues. Notwithstanding NYCRR §202.11, no prior consultation is required where either or both of the parties is self-represented. Counsel shall, prior to or at the compliance conference, submit to the court a writing with respect to any resolutions reached, which the court shall “so order” if approved and in proper form.

(5) In accordance with Section 202.20-c(f), absent good cause, a party may not use at trial or otherwise any document which was not produced in response to a request for such document or category of document, which request was not objected to, or, if objected to, such objection was overruled by the court, provided, however, the court may exercise its discretion to impose such other, further, or additional penalty for non-disclosure as may be authorized by law and which may be more appropriate in a matrimonial action than preclusion or where there is a continuing obligation to update (e.g., updated tax returns, W-2 statements, etc.).

(6) The Court shall alert the parties to the requirements of 22 NYCRR § 202.20-c regarding requests for documents; § 202.20-e regarding adherence to discovery schedule, and § 202.20-f regarding discovery disputes, and shall address the issues of potential for default, preclusion, denial of discovery, drawing inferences, or deeming issues to be true, as well as sanctions and/or counsel fees in the event default or preclusion or such other remedies are not appropriate in a matrimonial action.

(g) Expert Witnesses and Other Trial Matters.

(2) Each expert witness whom a party expects to call at the trial shall file with the court a written report, which shall be exchanged and filed with the court no later than 60 days before the date set for trial, and reply reports, if any, shall be exchanged and filed no later than 30 days before such date. Failure to file with the court a report in conformance with these requirements may, in the court's discretion, preclude the use of the expert. Except for good cause shown, the reports exchanged between the parties shall be the only reports admissible at trial. Late retention of experts and consequent late submission of reports shall be permitted only upon a showing of good cause as authorized by CPLR 3101(d)(1)(i). In the discretion of the court, written reports may be used to substitute for direct testimony at the trial, but the reports shall be submitted by the expert under oath, and the expert shall be present and available for cross-examination. In the discretion of the court, in a proper case, parties may be bound by the expert's report in their direct case.

(3) Pursuant to NYCRR §202.26, in cases in which both parties are represented by counsel and each party has called, or intends to call, an expert witness on issues of finances (e.g., equitable distribution, maintenance, child support), the court may direct that, prior to, or during trial, counsel consult in good faith to identify those aspects of their respective experts’ testimony that are not in dispute. The court may further direct that any agreements reached in this regard shall be reduced to a written stipulation. Such consultation shall not be required where one or both parties is self-represented or where the expert testimony relates to matters of child custody or parental access, domestic violence, domestic abuse, or child neglect or abuse.

(4) The provisions of section 202.20-a regarding privilege logs shall not apply to matrimonial actions and proceedings unless the court orders otherwise.

(5) Parties and non-parties should adhere to the Electronically Store Information (“ESI”) Guidelines set forth in an Appendix to the Uniform Civil Rules

(6) At the commencement of the trial or at such time as the court may direct, each party shall identify in writing for the court the witnesses it intends to call, the order in which they shall testify and the estimated length of their testimony, and shall provide a copy of such witness list to opposing counsel. Counsel shall separately identify for the court only a list of the witnesses who may becalled solely for rebuttal or with regard to credibility. The court may permit for good cause shown and in the absence of substantial prejudice, a party to call a witness to testify who was not identified on the witness list submitted by that party. The estimates of the length of testimony and the order of witnesses provided by counsel are advisory only and the court may permit witnesses to be called in a different order and may permit further testimony from a witness notwithstanding that the time estimate for such witness has been exceeded.

(h) Statement of Proposed Disposition.

(1) No later than five court days prior to the pre-trial conference scheduled by the court, each party shall file with the court, and exchange with the opposing party, a statement setting forth and containing the following:

(i) Except where excused by the court for good cause shown, including but not limited to the fact that the assets in dispute do not warrant the need for a spreadsheet or that a party is self-represented, a completed equitable distribution spreadsheet in the form prescribed by the chief administrator. (ii) A statement setting forth the following: a. Background facts of the action, including but not limited to date of marriage, date of separation, date of commencement of the action, names and dates of birth of the parties and any children of the marriage; residence addresses of the parties; nature and place of employment of each party, the income of each party, and whether any prenuptial agreement or postnuptial agreement exists between the parties; provided however, that the court shall have discretion to excuse any party or counsel from submitting a statement of background facts for good cause shown. b. Agreed statement of facts of the parties. Attorneys for the parties are required to meet in advance of the pretrial conference to discuss an agreed statement of facts. If the parties can agree, said statement will be marked in evidence at the trial of the action; but if the parties cannot agree, the statement will not be required. This provision shall not be applicable where one or both of the parties is self-represented. Where both parties are represented by counsel, counsel may seek permission of the court in exercising its discretion to be exempt from compliance with this provision in appropriate circumstances. c. Issues which have been resolved by the parties, and if memorialized in a written agreement, notarized in the form of a deed to be recorded, the agreement should be annexed to the statement; provided, however, that the court shall have discretion to excuse any party or counsel from submitting a statement of issues resolved for good cause shown. d. A statement of contested and unresolved issues remaining for trial; provided, however, that the court shall have discretion to excuse any party or counsel from submitting a statement of issues contested and unresolved remaining for trial for good cause shown.

(2) The statement referred to in paragraph (1) of this subdivision, shall be signed under penalty of perjury by the parties and shall be filed with the court with proof of service upon the other party. In addition, each party shall submit an updated sworn statement of net worth with proof of service upon the opposing party, unless submission of such updated statement of sworn net worth is excused by the court.

(3) Nothing contained herein shall prevent a court for good cause shown to direct a self-represented litigant to file any statement or document required by this rule after inquiry as to the ability of the self-represented litigant to complete the form.

(i) Filing of Note of Issue. No action or proceeding to which this section is applicable shall be deemed ready for trial unless there is compliance with this section by the party filing the note of issue and certificate of readiness.

(j) Referral to Family Court. In all actions or proceedings to which this section is applicable referred to the Family Court by the Supreme Court pursuant to section 464 of the Family Court Act, all statements, including supplemental statements, exchanged and filed by the parties pursuant to this section shall be transmitted to the Family Court with the order of referral.

(k) Motions for Alimony, Maintenance, Counsel Fees Pendente Lite and Child support (other than under section 237(c) or 238 of the Domestic Relations Law). Unless, on application made to the court, the requirements of this subdivision be waived for good cause shown, or unless otherwise expressly provided by any provision of the CPLR or other statute, the following requirements shall govern motions for alimony, maintenance, counsel fees (other than a motion made pursuant to section 237(c) or 238 of the Domestic Relations Law for counsel fees for services rendered by an attorney to secure the enforcement of a previously granted order or decree) or child support or any modification of an award thereof:

(1) Such motion shall be made before or at the preliminary conference, if practicable.

(2) No motion shall be heard unless the moving papers include a statement of net worth in the official form prescribed by subdivision (b) of this section.

(3) No motion for counsel fees and expenses shall be heard unless the moving papers also include the affidavit of the movant's attorney stating the moneys, if any, received on account of such attorney's fee from the movant or any other person on behalf of the movant, the hourly amount charged by the attorney, the amounts paid, or to be paid, to counsel and any experts, and any additional costs, disbursements or expenses, and the moneys such attorney has been promised by, or the agreement made with, the movant or other persons on behalf of the movant, concerning or in payment of the fee. Fees and expenses of experts shall include appraisal, accounting, actuarial, investigative and other fees and expenses (including costs for processing of NYSCEF documents because of the inability of a self-represented party that desires to e-file to have computer access or afford internet accessibility) to enable a spouse to carry on or defend a matrimonial action or proceeding in the Supreme Court.

(4) The party opposing any motion shall be deemed to have admitted, for the purpose of the motion but not otherwise, such facts set forth in the moving party's statement of net worth as are not controverted in:

(i) a statement of net worth, in the official form prescribed by this section, completed and sworn to by the opposing party, and made a part of the answering papers; or

(ii) other sworn statements or affidavits with respect to any fact which is not feasible to controvert in the opposing party's statement of net worth.

(5) The failure to comply with the provisions of this subdivision shall be good cause, in the discretion of the judge presiding, either:

(i) to draw an inference favorable to the adverse party with respect to any disputed fact or issue affected by such failure; or

(ii) to deny the motion without prejudice to renewal upon compliance with the provisions of this section.

(6) The notice of motion submitted with any motion for or related to interim maintenance or child support shall contain a notation indicating the nature of the motion. Any such motion shall be determined within 30 days after the motion is submitted for decision.

(7) Upon any application for an award of counsel fees or fees and expenses of experts made prior to the conclusion of the trial of the action, the court shall set forth in specific detail, in writing or on the record, the factors it considered and the reasons for its decision.

(l) Hearings or trials pertaining to temporary or permanent custody or visitation shall proceed from day to day conclusion. With respect to other issues before the court, to the extent feasible, trial should proceed from day to day to conclusion.

(m) The court may, for good cause, relieve the parties and counsel from the requirements of 22 NYCRR §202.34 regarding pre-marking of exhibits and 22 NYCRR §202.20-h. regarding pre-trial memoranda and Exhibit Books.

(n) Upon request of a party, the court may permit direct testimony of that party's own witness in a non-jury trial or evidentiary hearing shall be submitted in affidavit form, provided, however, that the opposing party shall have the right to object to statements in the direct testimony affidavit, and the court shall rule on such objections, just as if the statements had been made orally in open court. Where an objection to a portion of a direct testimony affidavit is sustained, the court may direct that such portion be stricken. The submission of direct testimony in affidavit form shall not affect any right to conduct cross-examination or re-direct examination of the witness. Notwithstanding the foregoing, in an action for custody, visitation, contempt, order of protection or exclusive occupancy, however, except as provided in NYCRR §202.18, a party or a party’s own witness may not testify on direct examination by affidavit.

(o) Omission or Redaction of Confidential Personal Information from Matrimonial Decisions.

(1) Except as otherwise provided by rule or law or court order, and whether or not a sealing order is or has been sought, prior to submitting any decision, order, judgment, or combined decision and order or judgment in a matrimonial action for publication, the court shall redact the following confidential personal information: i. the taxpayer identification number of an individual or an entity, including a social security number, an employer identification number, and an individual taxpayer identification number, except the last four digits thereof; ii. the actual home address of the parties to the matrimonial action and their children; iii. the full name of an individual known to be a minor under the age of eighteen (18) years of age, except the minor's initials or the first name of the minor with the first initial of the minor’s last name; provided that nothing herein shall prevent the court from granting a request to use only the minor’s initials or only the word “Anonymous;”; iv. the date of an individual’s birth (including the date of birth of minor children), except the year of birth; v. the full name of either party where there are allegations of domestic violence, neglect, abuse, juvenile delinquency or mental health issues, except the party’s initials or the first name of the party with the first initial of the party’s last name; provided that nothing herein shall prevent the court from granting a request to use only the party’s initials or only the word “Anonymous;”; and vi. a financial account number, including a credit and/or debit card number, a bank account number, an investment account number, and/or an insurance account number (including a health insurance account number), except the last four digits or letters thereof.

(2) Nothing herein shall require parties to omit or redact personal confidential information as described herein or 22NYCRR § 202.5(e) in papers submitted to the court for filing.

(3) Nothing herein shall prevent the court from omitting or redacting more personal confidential information than is required by this rule, either upon the request of a party or sua sponte.

(p) Financial Eligibility for Publicly Funded Counsel, Matrimonial Actions:

(1) In any action or proceeding brought (i) to annul a marriage or to declare the nullity of a void marriage; (ii) for a separation; (iii) for a divorce; (iv) to obtain, by a writ of habeas corpus or by petition and order to show cause, the custody of or right to visitation with any child of a marriage; (v) to declare the validity or nullity of a judgment of divorce rendered against a spouse who was the defendant in any action outside the State of New York and did not appear therein where such spouse asserts the nullity of such foreign judgment; (vi) to obtain maintenance or distribution of property following a foreign judgment of divorce; (vii) to enjoin the prosecution in any other jurisdiction of an action for a divorce; or (viii) seeking post-judgment relief in regard to any of the above, the court, in regard to issues over which the Family Court could have appointed counsel for a party pursuant to Judiciary Law § 35(8) (such as custody and visitation and family offense proceedings, or in defense of paternity and contempt/willful violation proceedings), may consider whether a party to any such action or proceeding shall be financially eligible for counsel in such action or proceeding when the person's current available resources are insufficient to pay for a qualified private attorney, the expenses necessary for effective representation, and the reasonable living expenses of the person and any dependents in the relevant jurisdiction. Such consideration by the court shall also include consideration of the ability of the spouse of a party to pay for such counsel pursuant to Domestic Relations Law § 237(a), and, upon a finding that a spouse of a party is able to pay for such qualifying party's counsel, no publicly funded counsel shall be provided, and the court shall instead alert the non-monied spouse of their right to make a motion to have the monied spouse pay their counsel fees pursuant to Domestic Relations Law § 237(a). A court shall also consider, in regard to issues over which the Family Court could have appointed an Attorney for the Child pursuant to Judiciary Law § 35(7) (such as custody and visitation proceedings), in an appropriate circumstance, the publicly funded assignment of counsel for a child or children of a party or of the parties, or a direction for a parent or parents to pay for such representation of a child or children pursuant to Domestic Relations Law § 237(b). The provisions of this section shall be applied uniformly, consistently, and with transparency.

(2) Financial disclosure and timely access to counsel.

(i) Except for good cause shown, any request by a party for the assignment of counsel shall be accompanied by either: (A) an affidavit or affirmation that they are unable to afford counsel with supporting proof, including a completed short form financial statement in the form prescribed by the chief administrator, and, if available, their W-2 statements and income tax returns, and, upon review of such short form financial statement, the court may also require from such party a statement of net worth in proper form as required by Domestic Relations Law § 236 and 22 NYCRR § 202.16; or (B) sworn testimony on the record regarding income, assets and liabilities. Upon any such request, a court shall require the spouse of the requesting party to provide such documents or sworn statements as well. A direction that counsel shall be so provided, if directed, shall be made upon (A) a request for counsel, (B) at the first court appearance, or (C) at a preliminary conference held pursuant to 22 NYCRR § 202.16(f), whichever is earlier, provided that the documentation as provided herein or sworn statements on the record in lieu thereof have been submitted to the court. Eligibility determinations shall be made in a timely fashion so that representation by counsel is not delayed; provided however, that nothing herein should prevent the court at first instance without the proof from providing counsel where appropriate subject to providing proof of eligibility subsequent thereto.

(ii) An order of appointment shall provide that: (A) Whenever it appears that the person is financially able to obtain counsel or to make partial payment for the representation or other services, the court may terminate the assignment of counsel or authorize payment, as the interests of justice may dictate, and (B) appointed counsel may report such facts to the court.

(iii) Presumptions of eligibility. Except for good cause show, the following presumptions of eligibility shall apply:

(A) The person's net income is at or below 250% of the Federal Poverty Guidelines, provided, however, that a person with an income in excess of 250% of the guidelines shall not be denied counsel if other criteria are met;

(B) The person is incarcerated, detained, or confined to a mental health institution;

(C) The person is currently receiving, or has recently been deemed eligible pending receipt of, need-based public assistance, including but not limited to Family Assistance (TANF), Safety Net Assistance (SNA), Supplemental Nutrition Assistance (SNAP), Supplemental Security Income (SSI)/New York State Supplemental Program (SSP), Medicaid, or Public Housing assistance; or

(D) The person has, within the past six months, been deemed financially eligible for counsel in another court proceeding in that jurisdiction or another jurisdiction.

(3) Additional considerations. The following factors shall be considered in determining a person's financial eligibility for publicly funded counsel:

(i) The income of a party as defined in Domestic Relations Law § 240(1-b)(b)(5);

(ii) The assets of a party and the liquid or non-liquid character thereof;

(iii) Debts and other financial obligations of a party, including the obligation to provide reasonable living expenses of the person and his or her dependents in the relevant jurisdiction; and

(iv) The actual cost of retaining a private attorney in the relevant jurisdiction for the type of matter for which publicly funded counsel is sought.

(4) The eligibility process, including the documentation required to be submitted, shall not be unduly burdensome for the person seeking publicly funded counsel. Counsel shall not be denied where the person has made a good faith, but unsuccessful, effort to produce required documentation or has made minor inadvertent or technical errors. Nor shall a person be required to demonstrate an unsuccessful effort to retain private counsel to be deemed financially eligible for publicly funded counsel.

(5) A determination denying counsel shall be made by order of the court in writing, and shall include reasons for such denial.

(6) Nothing in this rule shall impair or prevent a party from seeking or obtaining an award of counsel fees and expenses as a non-monied spouse, former spouse or parent for counsel of their choice pursuant to Domestic Relations Law § 237 or Judiciary Law §§ 35(7) or 35(8).