Burden of Proof - Clear and Convincing Evidence in Matrimonial Actions
The preponderance of the evidence standard is utilized in most matrimonial actions.
The clear and convincing evidence standard of proof must be established in those cases where the issue is adultery,[1] fraud, [2] to establish that a conveyance of property to the parties as tenants by the entirety was not intended to create in the co-tenant an ownership interest in the property, but was merely for the sole purpose of convenience,[3] and to establish, in a civil proceeding to punish for civil contempt, violation of an order or subpoena.[4] The clear and convincing evidence standard is also used where the plaintiff seeks to establish paternity [5] and to establish an acknowledgment of paternity. [6]
A spouse’s entitlement to a credit for separate property contributions to marital property must be established by clear and convincing evidence. [7]
[1] George v George, 34 AD2d 888, 313 NYS2d 85; Braun v Braun, 245 AD 194, 281 NYS 25; Nottingham v Nottingham, 209 AD 459, 204 NYS 750; Keville v Keville, 122 AD 388, 106 NYS 993; Salomon v Salomon, 102 Misc 2d 427, 423 NYS2d 605; Dempsey v Dempsey, 155 Misc 693, 281 NYS 303; see also Zipparo v Zipparo, 70 AD2d 616, 416 NYS2d 321.
[2] Simcuski v Saeli, 44 NY2d 442, 406 NYS2d 259, 377 NE2d 713; Hutt v Lumbermens Mut. Casualty Co., 95 AD2d 255, 466 NYS2d 28; Peterson v Peterson (1938) 255 App Div 537, 8 NYS2d 386; Croce v Croce (1950) 199 Misc 635, 100 NYS2d 97; Jones v Jones, 189 Misc 145, 69 NYS2d 223 (1947); Bentz v Bentz, 188 Misc 86, 67 NYS2d 345 (1947); Gerwitz v Gerwitz, 66 NYS2d 327 (Sup 1945); Iten v Iten, 64 NYS2d 882 (sup 1946).
[3] Campfield v Campfield, 95 AD3d 1429 (3d Dept 2012); Currie v. McTague, 83 A.D.3d 1184, 1185, 921 N.Y.S.2d 364 (2011); Burtchaell v. Burtchaell, 42 A.D.3d 783, 787, 840 N.Y.S.2d 449 (2007); Kay v. Kay, 302 A.D.2d 711, 713, 754 N.Y.S.2d 766 (2003).
[4] Matter of Williams v Williams, 230 AD2d 916, 646 NYS2d 861 (FCA § 846-a); Yalkowsky v Yalkowsky, 93 AD2d 834, 461 NYS2d 54; Matter of Bickwid v Deutsh, 229 AD2d 533, 654 NYS2d 539; Matter of Schmerer v McElroy, 105 AD2d 840, 482 NYS2d 35 (FCA § 454).
[5] Matter of Commissioner of Social Services v Philip De G, 59 NY2d 137, 463 NYS2d 761
[6] Matter of Vicki B v David H, 57 NY2d 427, 456 NYS2d 737
[7] Stavans v. Stavans, 615 N.Y.S.2d 712, 713, 207 A.D.2d 392, 393 (2 Dept.,1994)( It was also not an improvident exercise of discretion to refuse to grant the defendant a credit for his alleged separate property contributions on the ground that the defendant's claims were not established by clear and convincing evidence); Parker v. Parker, 659 N.Y.S.2d 790, 791, 240 A.D.2d 554, 555 (2 Dept. 1997) (However, in the exercise of our factual review power, we find that the husband's claims for his alleged separate property contributions, which were fully litigated, were not established by clear and convincing evidence).
The preponderance of the evidence standard is utilized in most matrimonial actions.
The clear and convincing evidence standard of proof must be established in those cases where the issue is adultery,[1] fraud, [2] to establish that a conveyance of property to the parties as tenants by the entirety was not intended to create in the co-tenant an ownership interest in the property, but was merely for the sole purpose of convenience,[3] and to establish, in a civil proceeding to punish for civil contempt, violation of an order or subpoena.[4] The clear and convincing evidence standard is also used where the plaintiff seeks to establish paternity [5] and to establish an acknowledgment of paternity. [6]
A spouse’s entitlement to a credit for separate property contributions to marital property must be established by clear and convincing evidence. [7]
[1] George v George, 34 AD2d 888, 313 NYS2d 85; Braun v Braun, 245 AD 194, 281 NYS 25; Nottingham v Nottingham, 209 AD 459, 204 NYS 750; Keville v Keville, 122 AD 388, 106 NYS 993; Salomon v Salomon, 102 Misc 2d 427, 423 NYS2d 605; Dempsey v Dempsey, 155 Misc 693, 281 NYS 303; see also Zipparo v Zipparo, 70 AD2d 616, 416 NYS2d 321.
[2] Simcuski v Saeli, 44 NY2d 442, 406 NYS2d 259, 377 NE2d 713; Hutt v Lumbermens Mut. Casualty Co., 95 AD2d 255, 466 NYS2d 28; Peterson v Peterson (1938) 255 App Div 537, 8 NYS2d 386; Croce v Croce (1950) 199 Misc 635, 100 NYS2d 97; Jones v Jones, 189 Misc 145, 69 NYS2d 223 (1947); Bentz v Bentz, 188 Misc 86, 67 NYS2d 345 (1947); Gerwitz v Gerwitz, 66 NYS2d 327 (Sup 1945); Iten v Iten, 64 NYS2d 882 (sup 1946).
[3] Campfield v Campfield, 95 AD3d 1429 (3d Dept 2012); Currie v. McTague, 83 A.D.3d 1184, 1185, 921 N.Y.S.2d 364 (2011); Burtchaell v. Burtchaell, 42 A.D.3d 783, 787, 840 N.Y.S.2d 449 (2007); Kay v. Kay, 302 A.D.2d 711, 713, 754 N.Y.S.2d 766 (2003).
[4] Matter of Williams v Williams, 230 AD2d 916, 646 NYS2d 861 (FCA § 846-a); Yalkowsky v Yalkowsky, 93 AD2d 834, 461 NYS2d 54; Matter of Bickwid v Deutsh, 229 AD2d 533, 654 NYS2d 539; Matter of Schmerer v McElroy, 105 AD2d 840, 482 NYS2d 35 (FCA § 454).
[5] Matter of Commissioner of Social Services v Philip De G, 59 NY2d 137, 463 NYS2d 761
[6] Matter of Vicki B v David H, 57 NY2d 427, 456 NYS2d 737
[7] Stavans v. Stavans, 615 N.Y.S.2d 712, 713, 207 A.D.2d 392, 393 (2 Dept.,1994)( It was also not an improvident exercise of discretion to refuse to grant the defendant a credit for his alleged separate property contributions on the ground that the defendant's claims were not established by clear and convincing evidence); Parker v. Parker, 659 N.Y.S.2d 790, 791, 240 A.D.2d 554, 555 (2 Dept. 1997) (However, in the exercise of our factual review power, we find that the husband's claims for his alleged separate property contributions, which were fully litigated, were not established by clear and convincing evidence).
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
Joel R. Brandes Consulting Services, Inc. publishes The New York Matrimonial Trial Handbook . It is available in Bookstores, and online in the print edition at Amazon, Barnes & Noble, Goodreads and other online book sellers.
The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
|
Joel R. Brandes Consulting Services, Inc.
2881 NE 33rd Court (At Dock) Ft. Lauderdale, Florida 33306. Telephone (954) 564-9883. email to:[email protected]. Joel R. Brandes Consulting Services, Inc is a Florida corporation which is owned and operated by
Joel R. Brandes of The New York Law Firm of Joel R. Brandes. P.C. |
This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
|