Niagara Falls, NY asked in Divorce and Legal Malpractice for New York

Q: What is the purpose of a Referee's report in a NY State divorce? Is Property Settlement based on referee's report?

In my NY State divorce there are 3 sentences that are in “Verified Complaint” signed by my ex-wife the plaintiff, The “Affidavit in lieu of testimony” “Action for Divorce” signed by my ex wife the plaintiff, and The “Referee’s report” findings of fact and conclusions of law, signed by the referee. The three sentences are worded exactly the same in all three of the documents. The three sentences describe the distribution of an asset.

This was a mediated, uncontested divorce. The mediator made an error / omission and left those three sentences out of the “Property Settlement and Separation Agreement”. Can this be easily fixed? What is the purpose of a Referee’s report? If these three sentences are in “Verified Complaint” signed by my ex-wife the plaintiff, “Affidavit in lieu of testimony” “Action for Divorce” signed by my ex wife the plaintiff, and The “Referee’s report” findings of fact and conclusions of law, signed by the referee --- THEY SHOULD BE UPHELD IN COURT, IS THAT CORRECT?

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1 Lawyer Answer
Peter Christopher Lomtevas
Peter Christopher Lomtevas pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Schenectady, NY
  • Licensed in New York

A: As is usual for a question to come from a convoluted proceeding like a New York divorce, there is a confusion taking place here that only a visit to a law office can unravel. We’ll try our best with what we have.

An uncontested divorce means both sides do not contest a distribution of assets and children. However, when a divorce judge refers a portion of the case to a referee, then this means there is a contest. Typically, a referee’s “hear and report” findings can be either affirmed or rejected on motion of either or both parties. The asker provides us with no orders referring the matter to a referee, so we don’t know what the asker must do to confirm or refute the report. Doing nothing can be a disaster, but we don’t know.

As for errors and omissions, there are procedural devices to correct errors, but we don’t know whether the asker is identifying an ‘error,’ or a ‘finding’ of the referee that goes against the wishes of the asker. Using the wrong procedural device will result in a denial.

As for three missing sentences, we do not know what those sentences are and whether they are relevant to the referee’s report and we don’t know what the report says.

The asker should ask his attorney, and if he went through a divorce without one, now may be the time to start seeing one.

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