Direct and Cross Examination in Divorce Proceedings

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Alan R. Feigenbaum ●

New York Law Journal, November 25, 2025 —

As a divorce lawyer, sometimes the effort to find a continuing legal education (CLE) program that will expand your intellectual horizon in a way that can be beneficial to your actual divorce practice can feel daunting. There is no shortage of programs available. However, to create a program that is educational and practical is no small task.

Which is why it is so refreshing when a decision of interest is released in the matrimonial arena that, to a large degree, has all the bells, whistles, and other intangible “it” factors that make for a memorable CLE program.

That brings us to the Honorable Jeffrey S. Sunshine’s recent decision in T.I. v. R.I., 2025 NY Slip OP 51575 (U), which is to my mind a primer on the meaning of the following objection often heard at matrimonial and other trials when a witness is being cross-examined, namely, “Objection. Beyond the scope of direct examination.”

Let me start by saying that the subject matter of the case itself is serious in nature. While this article will focus on trial practice, it should be noted that T.I. is, sadly, a particularly arduous matter. The first divorce action—“extremely contentious litigation”—ended via discontinuance after a purported reconciliation. In the second (current) action for divorce, the plaintiff-wife filed an order to show cause seeking a civil order of protection against the defendant-husband.

In her motion, the wife detailed “numerous incidents of allegations of domestic violence and asserted that ‘[d]efendant also subjected me to sexual abuse, coercive control, financial abuse, and verbal abuse and harassment on an ongoing basis’.” The decision notes that “there is no specific allegation to rape in plaintiff’s affidavit in support of her application or to any allegations related to any December 2019 incident which is the subject of the pending criminal action against defendant-father.”

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The Perils of Drafting Divorce Agreements: Part Deux

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Alan R. Feigenbaum ●

New York Law Journal, October 23, 2025 —

There are certain provisions that divorce lawyers regularly utilize when drafting separation agreements. Some of those provisions concern topics such as the distribution of marital assets, spousal maintenance, child support, and/or counsel fees. Drafting such provisions can become routine, but glossing over them is not advisable.

One such provision is regularly found in the “Article” of a separation agreement titled “Emancipation Events,” (i.e., an event upon which the noncustodial parent’s obligation to pay child support may terminate). The emancipation event that I will focus on in this article is often defined as a child having a permanent residence away from the custodial parent (the child support payee).

If, at the time a separation agreement is signed, Mom is the custodial parent and Dad is the noncustodial parent, you will likely see this enumerated emancipation event: permanent residence away from the residence of the Mother.

That all seems quite straightforward—at least I thought it was until I read E.B. v. A.F., 2025 NY Slip Op 51286(U) (Family Court, Nassau Cty. 2025). In E.B., the parties married in 2010, and entered into a separation agreement and divorced in 2019. The two children of the marriage are ages 14 and 11 according to the decision.

The parties’ separation agreement designated the Mother as the residential custodial parent and the Father was required to pay basic child support. Section XI of the separation agreement, titled “Emancipation of the Children” defined “Emancipation” to include “permanent residence away from the residence of the Wife.”

However, in 2024, the Father was granted temporary custody of the children; the Father also petitioned to suspend his child support payments due to the change in residential custody. The Father prevailed: he was granted residential custody and his basic child support obligations were terminated.

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Unnecessarily Prolonging Divorce Litigation May Cost You Dearly

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Alan R. Feigenbaum ●

New York Law Journal, September 25, 2025 —

As a matrimonial lawyer, we have all experienced the client who asks us weekly, if not daily, why we cannot effectively find a way to compel his or her spouse to settle what the client believes (and perhaps you, as the lawyer believe) is a straightforward case.

The answer to that question remains the same: in New York, divorcing spouses have an absolute right to a trial, and they are not required to settle. This is, of course, not the answer that the client who is looking to exit the process wants to hear, but it is, nonetheless, the answer.

Divorcing spouses have differing views on what constitutes unreasonable or obstructive conduct. Sometimes, one spouse will make a settlement proposal and, if the other spouse so much as hints at disagreeing with any of it, the offering spouse will declare the other spouse “unreasonable.” We can debate what it means to be “unreasonable” for the rest of time.

For now, let us examine the consequences to the divorcing spouse who intentionally blocks any path to a settlement, whether due to (a) underlying psychological disorder, (b) a refusal to share ordinary course financial information that is otherwise discoverable in a matrimonial action, and/or (c) the assertion of positions that the opposing spouse and his/her lawyer would never in good faith accept because those positions, at best, have no basis in law or fact.

Is there any consequence, or are there any consequences, to that type of divorcing spouse, even though you cannot compel that same spouse to settle? The answer is yes, and that brings us to the Appellate Division, Third Department’s recent decision in Marshak v. Marshak, 2025 NY Slip Op 04281.

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Mandatory Parent Education: Hope for New York Families

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Alan R. Feigenbaum ●

New York Law Journal, September 4, 2025 —

It is no secret to New York’s family law bar that divorce and separation stress can trigger lasting trauma in young children, teens, adult children, and their parents, and can reshape young and adult brains and emotional health.

If you were to poll the matrimonial bar and take their temperature on questions such as: Is the AFC (attorneys for children) structure working for families in contested custody cases (why or why not)?; Is the parent coordinator dynamic working for families in contested custody cases (why or why not)?; and/or is the appointment of forensic psychologists or related mental health professionals in contested custody cases bringing families closer to resolution or farther from resolution?; we suspect the answers would run the gamut.

To be sure, there are AFCs, parent coordinators, family therapists, and forensic psychiatrists that have done and are doing upstanding work for New York’s families in distress. But we cannot ignore that, as with almost anything in the legal profession, there is always room for improvement.

With that in mind, the State legislature has a chance to ameliorate the negative impacts of parental breakup with a remedy justified by science and decades of research and experience: mandatory parent education in disputed custody cases.

A new bill, filed this year in the State Assembly, would mandate that parents involved in contested custody matters be required to attend a state-approved parent education program as part of the processing of their matter through the Supreme and Family courts.

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Constructive Emancipation in Divorce: A Steep Evidentiary Burden

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Alan R. Feigenbaum ●

New York Law Journal, August 21, 2025 —

One of the most glaring contradictions in the practice of matrimonial law is that divorce litigation proceeds all the way up through the start of a trial without being governed by the rules of evidence. But when a trial starts, perhaps years after the divorce action has been commenced, all of a sudden the rules of evidence are front and center.

The danger posed by this contradiction should be obvious: an attorney can prosecute an argument or arguments for the better part of 80 to 90 percent of the duration of a divorce litigation without concern for questions such as (1) is this hearsay, and if so, is there a hearsay exception that applies; (2) is this document authenticated; (3) can I get this document in evidence even though its author is no longer alive; (4) is this a business record, and many more.

But when trial starts, the unchained litigious arguments that an attorney can make in motion papers and at oral argument on motions without evidentiary restriction are met with a gigantic brick wall, and that attorney had better be ready with concrete evidence.

That brings us to the subject of constructive emancipation of children in divorce, which to my mind incorporates one of the most challenging and complex burdens of proof in the scheme of the many claims that can be made in the context of divorce litigation.

In the recent decision of L.E. v. Y.E., 2025 NY Slip Op 51038(U) (Family Court, Westchester County, May 2025), the petitioner-father sought to discontinue his child support obligations for his three children on the basis that they had been constructively emancipated. Prior to the father’s modification petition, the mother had been awarded sole legal and physical custody, with the father having “supervised and/or unsupervised access” with the children.

The father ceased paying all support in 2023, and alleged that “despite his efforts, the children have refused to see him for six years, and by their choice and not his actions, and as a result, are constructively emancipated.”

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In the News

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Below is a roundup of Blank Rome Matrimonial and Family Law Partners’ recent awards, recognitions, media coverage, and other accomplishments from around the country.

‘Meaningful Consultation’ Over Add-On Expenses in Divorce
July 24, 2025 – Blank Rome partner Alan R. Feigenbaum authored this New York Law Journal article discussing “add-on expenses” within custody agreements. 

Chambers High Net Worth 2025 Highly Ranks Blank Rome Matrimonial & Family Law Group and Attorneys
July 24, 2025 – Chambers High Net Worth 2025 has highly ranked Blank Rome’s Matrimonial & Family Law practice group in California and New York, as well as co-chairs Kristina Royce and Morgan Fraser Mouchette, and partners Marilyn B. Chinitz, Norman S. Heller, Lois J. Liberman, Sophie Jacobi-Parisi, Stacy D. Phillips, Mary T. Vidas, and Brett S. Ward. 

Stacy D. Phillips and Kristina Royce Recognized as Leading California Family, Matrimonial & Divorce Lawyers by Doyle’s Guide
July 23, 2025 – Blank Rome is pleased to share that partners Stacy D. Phillips and Kristina Royce have been recognized in the 2025 listing of Leading California Family, Matrimonial & Divorce Lawyers by Doyle’s Guide.

Here’s How Much Andy Byron’s Divorce Bill Could Be Following Coldplay Kiss Cam Debacle
July 19, 2025 – Blank Rome partner Jacqueline Combs was featured in this New York Post article discussing the potential fallout from Andy Byron’s recent incident at Coldplay’s concert.

Continue reading →

Attorney Spotlight: Michelle Piscopo—Philadelphia

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Stacy D. Phillips ●

With this edition of Attorney Spotlight, I am pleased to feature one of our esteemed Philadelphia colleagues in Blank Rome’s Matrimonial & Family Law group—Michelle Piscopo.

Michelle Piscopo
Of Counsel

With more than two decades of legal experience, Michelle is a highly valued member of our Matrimonial & Family Law team. A graduate of Widener University and the Temple University Beasley School of Law, Michelle has successfully handled numerous cases involving significant marital estates. Her skill, dedication, and deep understanding of family law make her exceptionally equipped to manage even the most complex matters.

Before pursuing her career in law, Michelle studied psychology—an academic foundation that continues to inform her empathetic and client-centered approach. She thrives on working closely with individuals, guiding them through some of life’s most challenging moments. Matrimonial law is a natural fit for Michelle, as it allows her to combine her legal acumen with her passion for helping people.

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Modern Love: Redefining Relationships in a Dynamic World

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Stacy D. Phillips ●

Times are constantly changing. We tend to become comfortable with established norms, and relationships, including marriage, are no exception. When I was growing up, divorce was rare, so rare that I could count the number of divorced people I knew on one hand. Relationships were generally straightforward and often expected to evolve into marriage. However, today the landscape looks rather different.

When I notice those in relationships, many almost seem to lack the name or label of “relationship.” Couples are together, yes, but not quite fully present, and perhaps not indefinitely so. These arrangements also appear to be by choice of both parties in such a relationship. This seems far more common (though certainly not exclusively) within younger generations. This practice of not labeling a relationship with any official title, or people choosing to be together though with no intent to get married, has been colloquially named a “situationship.” There is no real science to it, and these situations are what they are. Yet it may be an indicator that our times, or at least what we traditionally understand as relationships, are indeed changing. 

The Elements at Play

If relationships are indeed evolving, there are, of course, many reasons why. For both the young and even the not-so-young, this world can be challenging. We simply cannot ignore that factors such as the current or future state of the economy will play a role in how we interact with one another. Life is expensive, and due to economic uncertainty as well as rising costs, more people are focused on their daily living and managing expenses, and if they can, save money for themselves, and perhaps are not as interested in having an official dependent or financial partner.

We cannot say that money and earning a living are the only factors at hand. Traditional marriage and relationships do indeed still exist. Yet some people have experienced pain in their past concerning relationships and may not be fully willing to commit to that level again. Wounds may heal, yet scars can remain. Many of us have been through it.

Being in relationships, getting married, and having kids, all of these things require commitment, Yet the very word “commitment” now appears to be undergoing a redefinition. These days, commitment can also mean choosing to remain single or engaging in non-traditional (whatever we once considered traditional) relationships that emphasize individual freedom as well as emotional satisfaction.

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‘Meaningful Consultation’ Over Add-On Expenses in Divorce

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Alan R. Feigenbaum ●

New York Law Journal, July 24, 2025 —

In the framework of a divorce case, when divorcing spouses have agreed to joint decision-making (joint “legal custody”) over major decisions affecting their children, there is an intersection, or crossroads if you will, between the principles of joint custody and the payment of “add-on expenses” (private school tuition, extracurricular and summer activity expenses, unreimbursed medical expenses, as just some examples).

With that in mind, when divorce lawyers draft separation agreements that require one parent, or both parents, to contribute to the payment of add-on expenses, often times we draft language that is intended to condition the payment of those same expenses upon compliance with the requirement that decisions about those expenses—before they are incurred—are made jointly if the parties have agreed to joint custody.

Stated simply, in the context of a joint custody arrangement, the thinking is that one parent (typically, the parent whose obligation to pay for add-on expenses is lesser, or none at all) should not be able to unilaterally enroll a child, for example, in an extracurricular activity, and then stick the other parent (who has had no chance to weigh in on enrollment) with the bill.

That brings us to the insightful decision of Judge Lydia S. Antoncic in the Matter of MM v. FV, (Family Court, New York County, 2025, Case Number 263192). In MM, the petitioner sought to enforce a judgment of divorce ordering the respondent to pay, inter alia, 27 percent of the children’s add-on expenses, including summer camp, educational expenses, medical insurance and expenses, and extracurricular activity expenses. The parties’ divorce Judgment incorporated a binding term sheet and a stipulation of settlement.

At the conclusion of a fact finding hearing by a support magistrate, the support magistrate denied, without prejudice, the petition for arrears associated with add-on expenses, finding that the court lacked jurisdiction “in that the parties’ judgment of divorce included contractual provisions to interpret and that the interpretations of the terms of joint custody are so intertwined with enforcing the terms of support for add-ons in the judgment that this court lacks jurisdiction to enforce those provisions” (emphasis in original).

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Practice Tip: Using Plain English in Divorce Agreements

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Alan R. Feigenbaum ●

New York Law Journal, June 26, 2025 —

In this author’s opinion, one of the great disservices that we, as lawyers, are told in law school is the notion that using “legalese,” pseudo-Latin prose, and/or long-winded lawyer sounding words and grammar somehow puts our ability to convey a written point in a manner that far surpasses the ability of non-lawyers to do the exact same thing.

My National Institute for Trial Advocacy Instructor once told me that it was not the polished prose of the “Bobby Donnell” character (Dylan McDermott) in the late 1990s television show known as The Practice whose advocacy skills were worthy of praise, but instead, the down to earth, Plain English advocacy of the less suave character known as “Jimmy” (Michael Badalucco).

The more that I draft separation or other agreements in divorce cases, the more I am convinced that the Plain English, “Jimmy” style of written (and oral) advocacy is a much surer bet in terms of trying to avoid future disputes over the meaning of written words in those same agreements.

That brings us to Justice Jeffery S. Sunshine’s recent decision in E.S. v. H.G., 2025 NY Slip Op 50610(U) (Kings Cty., 2025).

In E.S., the parties entered into a stipulation of settlement (the “agreement”) resolving their divorce in 2006. At the time of the divorce (also in 2006), the parties had two minor children, ages four and six. Post-judgment litigation ensued when the mother sought to enforce the Agreement due to the father’s child support arrears.

At the time of the post-judgment application seeking enforcement on child support that is the subject of E.S., the parties—“who are both attorneys”—represented themselves. The father claimed that after the mother sought enforcement, he paid $82,400.37 in child support and “owes no other arrears for child support”. The mother disagreed.

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