September 29th, 2010
On August 15, 2010, Governor Paterson signed into law new statutes that significantly change divorce law in New York.
No Fault Divorce
The most significant of the statutes adopts a true no-fault divorce law, making New York the 50th state to adopt such a law. The new statute eliminates the need for a person seeking a divorce to claim that they either have been living apart pursuant to a written separation agreement for a period of one year or that the spouse has committed adultery, abandonment, cruel and inhuman treatment or has been sentenced to prison for a period of three years or more.
The party seeking the divorce simply has to claim that the marriage is “irretrievably broken” for a period of six months. The other party does not have to consent or agree to it. Once the allegation is made by one party, there is no defense available to the other party that will stop the divorce from going forward. The court then has to deal with issues involving child custody, child support, spousal maintenance, equitable distribution of property and other related matters.
Temporary Maintenance Awards
In addition, one of the new statutes changes the process by which courts grant temporary maintenance (money) to a spouse while a divorce is pending. The statute creates a formula and a list of factors to govern these awards. The purpose is to allow for a quick resolution of temporary spousal maintenance issues and enable the financially worse-off party to continue with litigation without being impoverished.
The third statute creates a presumption that the less well-off spouse in a divorce proceeding is entitled to the payment of his or her attorney fees. Under existing law, a party might be unable to secure legal representation must make an application to the court for attorney fees at the end of the litigation process.
September 24th, 2010
In the month of July, 2010, 800 homeowners in Nassau County had their homes foreclosed on (foreclosure is the start of a proceeding by a lender of financial institution to take the home back). In the same month, 170 homes were taken back by the lenders on Long Island. This is an increase of 86% from July of 2009.
Although the Obama administration currently has a program to help individuals who have had their homes foreclosed on, the average homeowner in New York has not experienced any benefit from this program. Most individuals who apply for mortgage modifications under the various existing programs get turned down. Those who are approved often receive a modification for only three months. The three month modification is simply not long enough to allow individuals to get back on their feet. Many aspects of the existing mortgage modification programs simply do not meet the needs of individuals who apply for modifications.
The foreclosure process in New York can be quite long and time consuming. Homeowners who find themselves facing a foreclosure lawsuit can retain counsel and tie up a case in court for years.
The mortgage modification process can be very aggravating for a homeowner. After diligently submitting all necessary documents, the homeowner sometimes finds him or her self in a never-never-land. Telephone calls to the mortgage processing company typically go unanswered or the individual who does answer is clueless as to the situation. After numerous phone calls and attempts to discuss the matter with a mortgage company representative, the result is obvious frustration. It quickly becomes apparent that the banks are not serious about the mortgage modification process.
A good way of dealing with the failure of a bank to properly process a modification application is to bring it to the court’s attention during the statutorily mandated settlement conferences.
Our office has represented individuals with financial difficulties involving issues of bankruptcy, mortgage modifications and foreclosure defense for many years. We understand the aggravation and torment an individual goes through when dealing with the prospect of losing their home. We are experienced in fighting to allow our clients to stay in their homes by putting pressure on banks and financial institutions.
September 22nd, 2010
Governor David A. Patterson recently signed a new groundbreaking “no-fault” divorce statute into law. The statute goes into effect on October 15, 2010 and brings New York into conformity with the other 49 states concerning the issue of no-fault divorce.
The statute provides for a new ground for divorce which does not assign blame or fault to either party. Instead, one of the parties to the marriage need only swear in an affidavit that the marriage is irretrievably broken for a period of six months. This becomes the sole basis for the divorce. All other issues involving child support, spousal maintenance, custody, equitable distribution of property and other issues that arise in a divorce are not effected by the new divorce law. These issues will still need to be worked out.
Prior to the new law, one of the parties either had to prove adultery, abandonment, cruel and inhumane treatment or imprisonment for a period of three years or that the parties were living separate and apart (pursuant to a written agreement of separation or a separation decree) for a period of one year. An individual seeing a divorce under the old law often had to lie in order to obtain a divorce with regard to the issue of grounds.
In addition to implementing no-fault divorce in New York, Governor Paterson also signed into law a number of other statutes related to divorce. One of these new statutes provides new guidelines for temporary spousal support during the course of a divorce. It also authorizes the court to grant a financially dependent spouse up-front attorney fees if necessary.
Although the legal process in dealing with the issue of fault in divorce has been simplified, their are still many complicating factors each of the parties must face involving issues such as custody, visitation, child support, spousal maintenance and equitable distribution. Should you be facing the prospect of a divorce, contact the attorneys at the law office of Elliot S. Schlissel for a free consultation at 1-800-344-6431, or by email.
September 20th, 2010
The State of New York has a very narrowly defined requirements regarding what needs to be in a separation agreement and how it is executed.
In late 2009 the Appellate Division for the Fourth Department (an upstate appeals court) held that a separated couple’s agreement which dealt with terms of custody and visitation for their three children did not satisfy the minium statutory requirements to constitute a Separation Agreement in New York. Therefore the parties living separate apart under the terms of this agreement for a period of one year could not use this as a basis for obtaining a divorce.
The court held that “it is a physical separation of the parties, not the written agreement, that supplies the grounds for divorce under the New York Domestic Relations Law section 170(6).”
Donald J. Scully and Carol M. Harr married in May of 1993. They separated in December of 2005. The couple executed a “parenting plan agreement” on May 11, 2007.
On May 13, 2008, one year and two days after they entered into this parenting plan agreement, Mr. Scully filed for divorce. Ms. Harr contested the matter. Her position was that the parenting agreement did not constitute a separation agreement under New York law. The Fourth Department of the Appellate Division agreed with her. They held that the agreement dealt solely with matters of custody and visitation, and even though it was signed and acknowledged by the parties, it did not constitute a separation agreement in conformity with New York State Law.
Separation agreements are complicated detailed documents. Should you and your spouse seek to enter into a separation agreement, feel free to contact the divorce lawyers at the law office of Elliot Schlissel to discuss this matter at 1-800-344-6431, by email or on facebook.
September 17th, 2010
Governor David A. Patterson recently signed a new statute into law that affects individuals convicted of drunk driving. The new “Driving While Intoxicated” statute requires individuals convicted of drunk driving to install interlock devices in their cars.
The new law is referred to as “Leandra’s law”, named after Leandra Rosado, an eleven-year-old who was killed in a car crash in New York City when she was hit by a drunk driver.
A vehicle with an ignition interlock system cannot be driven unless the driver first blows into the device, which checks his or her blood alcohol level. The law also requires individuals convicted of driving while intoxicated to install global positioning systems in their vehicles at their own expense, and to keep them their for a minimum of six months.
Some lawyers argue that the new law requiring the interlock devices will cause more offenders to take their cases to trial, since installing such a device in a vehicle can be very costly. However, Marie McCormick, who heads the Nassau District Attorney’s Vehicular Crimes Bureau, stated in a Newsday article that the higher cost associated with going to trial would most likely dissuade many alleged offenders from taking this action.
New Felony Statute:
In December of this year, a law went into effect in New York which makes it a felony for an individual to drive while intoxicated or under the influence of drugs when there are children in the car.
Being charged with driving while intoxicated at one time was a minor offense. This is no longer true. Today, being convicted of a “DWI” can cause an individual to lose his or her license, pay a large fine, be incarcerated and now have to install an interlocking and global positioning device in his or her car.
Should you or a friend be faced with being charged for driving while intoxicated, it is crucial for you to have effective representation. Contact the Law Offices of Elliot S. Schlissel 1-800-344-6431, or by email.
September 15th, 2010
Do financial difficulties lead to more incidents of domestic violence in our society? Sandra Oliva, Director of the Nassau County Coalition of Domestic Violence, stated that “issues facing families these days have increased the potential for more violence”. Sandra Oliva looks for ways to prevent abuse an to assist victims. In a recent Newsday article, she indicated that victims seeking help have recently been talking about job loss, hunger and chronic unemployment.
Pamela Johnson, the Executive Director of the Victims Information Bureau of Suffolk, also feels that unemployment causes abusers to be at home more often. As a result, they have more time to victimize their significant others.
Linda Smith, a professor of law at Brooklyn Law School who has worked with domestic violence victims, recently stated in a Newsday article that when people lose their jobs, they lose their self-esteem. This commonly leads to an unhappy domestic atmosphere. Although a poor economy may lead to more domestic violence, the experts are not sure that a healthy economy has any effect on reducing domestic violence.
September 13th, 2010
Under current law, if a heterosexual male has a one night stand with a woman and she becomes pregnant, the man is legally obligated to pay child support. Furthermore, in situations where a male is paying child support to a woman even when he is not the father, he cannot discontinue payments under the doctrine of “equitable estoppel“. This doctrine states that a man with no biological or adoptive connections to a child cannot stop paying child support if he has established a history of providing for the child.
In the case of H.M. v. E.T., the mother had conceived a child through artificial insemination. She had relied on her lesbian partner’s assurances that she would receive child support for the baby. When her partner backed out on her commitment to provide financial support, the mother brought the matter to court.
The Second Department of the Appellate Division (an appeals court) held that the assurances of support by a non-adoptive, non-biological adult who engages in a same sex relationship is also subject to the doctrine of equitable estoppel. Therefore, the lesbian woman would have to continue paying child support even though her relationship with her lover had ended.
New York does not grant the non-biological woman in a lesbian relationship visitation unless she formally adopts the child. Query: will the courts look differently on a lesbian partner’s request for child visitation where the partner is obligated to pay child support?
September 10th, 2010
The Bakers’ home recently went into foreclosure. Mrs. Baker had lost her job as a bookkeeper. Mr. Baker, a construction worker, has a take home pay of only $600 a month.
Mrs. Baker brought a proceeding in Suffolk County court before Supreme Court Judge Jerry Garguilo, requesting that she be allowed to move to Venice Beach, Florida, so she could live with her parents. It was her hope that she could obtain full-time employment in Florida.
Judge Garguilo conducted a two-day trial with regard to the proceeding. Judge Garguilo rendered a decision granting Mrs. Baker’s petition that she facilitate visitation by using SKYPE. In fact, the relocation was conditioned on Mrs. Baker having a computer and maintaining SKYPE capability. When Judge Garguilo authorized Mrs. Baker to move, he made it conditional on the children being available three times to communicate with their father through SKYPE.
This is a very innovative way of dealing with a relocation issue. Perhaps if the mother had greater financial resources, she would also be responsible for providing the children with round-trip airfare to facilitate in-person visitation with the father.
September 8th, 2010
An upstate judge in the town of Milan was dealing with a huge backlog of traffic cases. He decided the best way to deal with the backlog was to “plea bargain” tickets down to lesser offenses. Unfortunately, the New York state police, assuming a role similar to that of a prosecutor, objected to the judge’s actions.
The State Police took legal action and challenged the judge’s rulings to a higher court, the Second Department of the Appellate Division. The Second Department held that “the town justice’s attempt to ease the backlog may have been understandable, but it was not legally justifiable”. The court held that although they were sympathetic to the huge burden placed on the courts, there was a blanket policy against plea-bargaining for these types of cases.
In the town of Milan, the State Police are responsible for the prosecution of traffic tickets. In 2006, they established a policy of barring negotiations concerning the reduction of charges on traffic tickets given by State Troopers.
Administrative Ajudication Of Traffic Tickets:
The five boroughs of New York City, as well as Suffolk County, have administrative ajudication programs conerning traffic tickets. In these six counties, the police officer acts as the prosecutor. The officers have no authority to enter into plea bargaining arrangements and the judge has no authority to work out plea bargaining schemes. If the defendant pleads “not guilty”, the case goes to trial. The trials are conducted before an administrative judge.
For approximately 25 years, my office has been trying speeding tickets and other types of traffic cases in the five boroughs New York, as well as Suffolk County. These trials can be won with the right legal representation.
Should you, a friend or a loved one have a problem with a traffic ticket, feel free to call the traffic defense attorneys at the law office of Elliot Schlissel, at 1-800-344-6431, or by email.
September 6th, 2010
In June of 2010, the New York State Court of Appeals (the highest court in New York) ruled that the civil commitment statute for sex offenders, pursuant to article 10 of the New York Mental Hygiene Law, applies to “dangerous inmates who are detained sex offenders”. The court went on to find that the statute applies to them even if they are being held illegally.
The case before the court involved two inmates who were detained illegally after their return to prison for violations of various post-release supervision provisions. Overturning the lower courts, the Court of Appeals ruled that the state could proceed with involuntary commitment procedures despite acknowledging that the men were improperly imprisoned in the first place.
The court’s interpretation of the statute passed by the New York State legislature gives an expansive view to the civil commitment statute. The court found that there is no injustice in holding dangerous sex offenders in civil confinement even after their jail term is up. This decision benefits society at large since keeping sex offenders off the streets, even after they have served their appropriate sentences, is in the interest of public good.
Should you have any questions regarding child abuse, sex offenders, family law, matrimonial law, spousal abuse, orders of protection or any other legal issue, please contact the offices of Elliot S. Schlissel at 1-800-344-6431, or by email.