To File Or Not To File…That Is The Question – An Update On Filing Of New Cases

In a continuing effort to keep our clients and friends abreast of new developments regarding access to the court system, we would like to provide the following update. 

Beginning on Monday, May 25, 2020, the NYS Chief Administrative Judge announced that the filing of new Family Law and Divorce cases will, for the first time in about two months, be allowed in those counties of the state which have not yet met the benchmarks required to participate in the governor’s regional reopening plan. Those counties include Westchester, Rockland, Putnam, Dutchess, Orange, Nassau, Suffolk and the five New York City counties. 

Represented parties must commence new matters (and proceed in pending matters) exclusively by electronic means through the NYS Courts Electronic Filing (NYCEF) procedures. 

Due to the COVID-19 pandemic, the Ninth Judicial District1 has been handling only certain “essential” matters established by the Chief Administrative Judge since March. The courts were being operated virtually with remote appearances only and being staffed primarily by a small group of court clerks. Those court clerks have been accepting filings for “essential” matters only pursuant to the previous Administrative Orders and scheduling remote Skype for Business appearances for all interested parties, including the scheduled judge. 

The question is, how do I know if now is the right time to file?

Now that the filing of new (“non-essential”) divorce actions is permitted, it is extremely important that anyone intending to do so first confer with experienced divorce counsel in order to evaluate the significance of the commencement date in their particular situation or case

For example, when a new divorce action is commenced, statutory or “automatic” orders are imposed which prohibit certain types of transactions regarding marital assets and property. 

Another important consideration is the fact that the commencement of a divorce action is the “cut-off” date with respect to the acquisition or appreciation/depreciation of certain types of marital property. In general, all assets and income acquired from the date of the marriage to the date of commencement of a divorce is marital property subject to equitable distribution. In a particular case, this could have a consequential impact on the assets to be included in the equitable distribution process, as well as the values of the included assets.

For example, if a spouse is awarded certain types of bonus payments (e.g. a “stay on” or “sign on” bonus” or a forgivable loan) after the commencement of a divorce action, the funds may be determined to be his or her separate property and not subject to equitable distribution. On the other hand, should such a payment be acquired prior to the commencement of a divorce action, it may well be considered to be marital property for equitable distribution. 

Since property to be included in the marital estate includes both assets and liabilities, if a spouse incurs a debt or obtains a loan prior to the filing of a divorce action, that obligation could be considered a marital debt to be repaid out of marital assets. 

In addition, and as discussed in my last newsletter, the valuation date for certain marital assets such as a family business or professional practice may be set as the commencement date of the action. Hence, one must consider whether or not the current economic disaster renders it is advantageous or not to commence a new divorce action from an asset valuation perspective before filing a new divorce action. 

There are obviously many more important considerations when it comes to the filing and commencement of a divorce action. In high net worth cases involving substantial assets of various types and nature, it behooves one considering such action to confer with counsel experienced in such matters for advice and counsel.

At Nolletti Law Group, we provide such advice and counsel. We take pride in our knowledge and experience in helping high net worth clients and persons contemplating divorce navigate the minefields of divorce. 

Please stay safe and healthy during this unprecedented medical disaster.

James J. Nolletti, Esq.
Founder, Nolletti Law Group
Fellow, American Academy of Matrimonial Lawyers
Fellow, International Academy of Family Lawyers


1The Ninth Judicial District includes the counties of Westchester, Putnam, Rockland, Dutchess and Orange.