Mitchell Y. Cohen
Family law practitioners are well acquainted with change, in the law, in the practice rules of the courts in which we appear, or the constantly changing facts and family dynamics relative to the people we represent. This past year has been no exception.
At the forefront of our ever-changing world, the recently enacted Tax Cuts and Jobs Act of 2017 has eliminated the deduction for alimony for all Divorce and Separation instruments executed after Dec. 31, 2018. The deductibility of alimony has a history dating back to 1942 and certainly since my admission to the bar in 1986 it has always been an important negotiating tool when trying to resolve cases. Just when I thought I understood the intricacies of the deductibility of maintenance including what recapture meant, it has now been taken off the table. Although a complicated issue, the deductibility of alimony was especially helpful in shifting taxable income in a way to increase the money available for a family to support a household that no longer had two parents living as one unit and was often a creative tool to help achieve a settlement.
When the tax reform laws were first introduced in Congress, the legislation committee of the Family Law Section immediately undertook a review of the proposal, formulated a resolution, unanimously approved by our Executive Committee, firmly against the elimination of the tax deduction for alimony. This resolution was provided to the NYSBA to take to Washington, D.C., and while the effort did not prove successful, it was gratifying that the elimination of the deduction was not immediate but delayed for one year. Our next task will be to see what changes, if any, to the recently enacted spousal maintenance guidelines might be appropriate given the significant impact on the loss of this deduction.
In July, 22 N.Y.C.R.R. 202 was amended to impose limits on the length of affidavits, attorney affirmations, and memorandums of law with respect to pendente lite motion practice both as to papers in support of the application, opposition thereto and the reply. There is, of course, an exception to permit the papers to exceed these limitations but counsel must certify a good faith need to exceed the page limitations. When first proposed, these page restrictions were met with skepticism and concern that litigant’s rights were being limited, yet I am not aware of any instance where a litigant has not had a full and fair opportunity to argue either in favor or of against the relief being sought.
Domestic violence continues to be a major topic of concern, and well it should be. This tragic and destructive behavior comes in many shapes and forms and we witness this every day in the news and with our clients and their children. The NYSBA Domestic Violence Initiative was conceived by past NYSBA President Claire Gutekunst, and as the initiative has completed its mandate and issued a final report with recommendations, I am pleased to have created a special committee within the Family Law Section to take up the issue of Domestic Violence from the Initiative. This committee, co-chaired by the Hon. Debra Kaplan, Amy Schwartz-Wallace, Alton Abramowitz and Elizabeth Douglas will certainly be one of our most important and active committees and will undoubtedly be a shining example of how we as family law practitioners can have a real and significant impact.
My two-year term as chair of the Family Law Section will conclude at the end of this month. The people serving as chair before me were stars in the field, and with more than 2,500 members in the Section I felt a responsibility to serve our members diligently, to promote the practice of family law, and to provide our members with access to the resources to make the practice of family law more efficient and rewarding. Our website provides easy access to legislative updates. Monthly case updates are posted by our very own Bruce Wagner. The Section’s quarterly publication, the Family Law Review, provides insightful articles and case analysis invaluable to practitioners. The community listserve provides an incredible opportunity to pose questions and receive invaluable advice from colleagues around the state, and not a day goes by without at least one post. Our legislation committee works tirelessly to analyze and comment on proposed legislation affecting our area of practice. And of course, our CLE committee is composed of the most hardworking group of individuals I have ever been associated with, devoting endless amounts of time and energy to develop and put out high quality CLE programs throughout the year, targeted to all levels of professional experience. It has been an honor and a privilege to be chair of this section and to represent this group of professionals dedicated to the practice of matrimonial and family law.
Mitchell Y. Cohen is a partner at Johnson & Cohen.