The Elliot Schlissel New York Law Blog

In October 2010, the State Legislature in New York enacted guidelines for calculating temporary spousal maintenance. The purpose of this new statute is to provide consistency in spousal maintenance awards by judges. The temporary maintenance law provides a formula by which the parties to a matrimonial lawsuit can determine what, if any, spousal maintenance is required to be paid on a temporary basis.

Temporary Maintenance Law Does Not Work

The temporary maintenance statute has not accomplished its goal. It has created more problems in divorce proceedings than it has resolved. The statutory formula replaced the prior system of determining temporary spousal maintenance which was based on the Court exercising its discretion after assessing the financial circumstances and the needs of the parties.

The intent of temporary spousal maintenance is to allow the non-moneyed spouse to maintain his or her standard of living that existed prior to the initiation of the divorce lawsuit. The legislature took action to draft a temporary maintenance statute because of the feeling that there was a lack of consistency and predictability by allowing Judges to determine each case on a case by case basis.

Bankrupting The Moneyed Spouse

In to in many cases the writer of this article has been involved with, the application of the temporary maintenance statute has financially ruined the moneyed spouse. This statute unfortunately over emphasizes the wages of the moneyed spouse. It does not take into consideration the financial needs of the parties and their actual living expenses. The formula does not take into consideration the payments for household expenses such as mortgage payments, electric payments, fuel oil, payments for internet service, telephone charges, maintenance of the property, child support and attorney’s fees during the course of litigation. The approach utilized by this statute does not accurately deal with the specific financial obligations and needs of the parties.

Rigid Formula Must Go!

The new maintenance statue needs to be revised. It is a rigid formula that denies the Court from having the necessary discretion to deal with the unique financial circumstances litigants are exposed to. In some situations spouses are receiving interim spousal maintenance awards in cases and at the conclusion, they receive no spousal maintenance. How can this be fair?

Let’s assume you are married. But on the side you also have a boyfriend. During the course of your dalliance with your boyfriend he becomes abusive. What can you do?

In 2008 New York law changed regarding obtaining orders of protection. The law now allows individuals in “intimate” relationships with non-relatives to obtain orders of protection.

In January of 2009 the Madison County Family Court denied Jessica D’s request for an order of protection based on public policy. The court in this case acknowledged that Jessica and her boyfriend had an intimate relationship but for public policy reasons since she was married the court refused to give her an order of protection.

The Appellate Division for the Third Department (an appeals court) held that the purpose for the expansion of the law by the State Legislature was to protect citizens from domestic abuse situations. The court held that the legislature’s intent was to extend the court’s jurisdiction to grant orders of protection to relationships of a non-traditional nature, such as a married woman having meritorious relationship during the term of her marriage with a boyfriend.

Orders of protection can create all kinds of problems for both men and women. Should you experience these problems feel free to contact the law office of Elliot Schlissel for assistance at 1-800-344-6431.

In Ohio, cell phones protected by the 4^th amendment’s prohibition against unreasonable search and seizure by the government.

In a recent decision, the Ohio Supreme Court has ruled that police officers need to obtain a warrant in order to search a cell phone. This decision by the Ohio Supreme Court takes into consideration the fact that cell phones today go far beyond the means of basic communication. They are mini computers that store large amounts of personal information. From this point forward, the personal information becomes a protected privacy right, at least in the State of Ohio.

Although most searches require warrants, police officers are allowed to search their immediate surroundings when dealing with potential arrests for their own self protection. The Ohio case involves a man named Antwaun Smith. He was arrested on drug charges. At the time of his arrest his cell phone was ceased and later it was searched. The police found information important to their investigation on his cell phone calling records.

The recent ruling of the Ohio State Supreme Court was a divided 4/3 vote. The decision indicated that Mr. Smith’s protection against unreasonable search and seizures under the 4^th Amendment to the US Constitution were violated. The court, in its decision stated that cell phones are “capable of storing a wealth of digitized information”. The court’s decision indicated that individuals using cell phones have an expectation of privacy which is protected by the 4^th Amendment to the US Constitution.　

The Ohio court’s ruling creates a new type of privacy. As hand-held devices become more and more sophisticated, they will contain more and more personal information. Individuals rights of privacy in devices that are basically hand-held mini computers should be protected by the 4^th Amendment to the US Constitution. I have every hope that when a case presents itself, the NY Court of Appeals will make a similar ruling that respects individuals rights of privacy against unreasonable searches and seizures of all types of hand-held telephones and computer devices.

Should you, a friend or a loved one be subject to what amounts to be an unreasonable search, the criminal defense attorneys at the Law Office of Elliot S. Schlissel can use their expertise and diligence to protect your rights and the rights of a friend or a loved one. E-mail or call us at 1-800-344-6431.

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On December 24, 2009, Judge Matthew F. Cooper, sitting in th Supreme Court of New York County, rendered a decision on the case of Davis v. Davis, 89 N.Y.S.2d 611, 2009 WL 3863026, 2009 NY Slip Op 08579. Mr. Davis brought an action for a non-contested divorce, claiming his wife constructively abandoned him. This means she had no sex with him for a period of one year. This is the most widely used ground for divorce in the State of New York. The reason this ground is widely used is that New York does not have a true no-fault ground for divorce. It is only state in the United States that still maintains an archaic fault based divorce system.

Constructive Abandonment – No Sex for a Year:

Mr. Davis alleged in his complaint that he had not had sex with his wife for over one year. He submitted an affidavit swearing to the validity of this information.

Unbeknownst to Mr. Davis, Mrs. Davis was pregnant with Mr. Davis’ child. Mr. Davis was successful in obtaining the divorce.

Mrs. Davis had a baby boy named Ethan. Mr. Davis, thereafter, moved for genetic marker testing to prove that he was the father of the child. He wanted a declaration of paternity and the divorce judgment to be modified to indicate he was Ethan’s father.

Mrs. Davis opposed the application by Mr. Davis. In her opposing papers, she indicates that in Mr. Davis’ divorce papers, it contained a signed sworn to affidavit that he hadn’t had sex with her for a period of one year. It, therefore, would be impossible for him to be the father of Ethan. Mrs. Davis also alleged that if Mr. Davis is recanting his sworn statement, he should be prosecuted under the NY Penal Law, §210.10 for perjury.

The Appellate Division, Second Department, in its decision on the appeal, indicated that this was the wrong venue to allege criminal conduct. The court further stated that “the sad truth is that New York’s insistence on fault based divorce ends up promoting a disregard for the truth by fostering and encouraging the embellishment of a spouse’s wrong doing as to grounds …”

The court found that there should a presumption of legitimacy of the child being a child of the marriage because it was in the child’s best interests. The court further stated that it is presumed that Mr. Davis was Ethan’s father by virtue of the fact that he had been married to Ethan’s mother when the child was born. The court stated it was in the child’s best interests that his father’s name appear on his birth certificate and that the father should be able to establish a father-son relationship.

If New York had a true no-fault divorce law with a ground such as “irreconcilable differences” or “incompatibility,” individuals would not be motivated to submit false affidavits in divorce lawsuits for the sole purpose of ending their marriage. Although, New York State in many respects is a very forward thinking state, this is not true when it comes to New York’s divorce laws. The court stated that the “view of marriage is more reflective of the time of the Empire of Queen Victoria than it is of the second decade of the 21^st Century”. The failure of New York’s legal system to adopt a divorce law that reflects 21^st Century sensibilities willl continue to impugn the integrity of the legal system in the State of New York.

The Law Office of Elliot S. Schlissel has been providing legal services to individuals with marital problems for more than 30 years. Should you have an issue involving your marriage, feel free to call us at 1-800-344-6431 or email us anytime.

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On December 24, 2009, Judge Matthew F. Cooper, sitting in th Supreme Court of New York County, rendered a decision on the case of Davis v. Davis, 89 N.Y.S.2d 611, 2009 WL 3863026, 2009 NY Slip Op 08579. Mr. Davis brought an action for a non-contested divorce, claiming his wife constructively abandoned him. This means she had no sex with him for a period of one year. This is the most widely used ground for divorce in the State of New York. The reason this ground is widely used is that New York does not have a true no-fault ground for divorce. It is only state in the United States that still maintains an archaic fault based divorce system.

Constructive Abandonment – No Sex for a Year:

Mr. Davis alleged in his complaint that he had not had sex with his wife for over one year. He submitted an affidavit swearing to the validity of this information.

Unbeknownst to Mr. Davis, Mrs. Davis was pregnant with Mr. Davis’ child. Mr. Davis was successful in obtaining the divorce.

Mrs. Davis had a baby boy named Ethan. Mr. Davis, thereafter, moved for genetic marker testing to prove that he was the father of the child. He wanted a declaration of paternity and the divorce judgment to be modified to indicate he was Ethan’s father.

Mrs. Davis opposed the application by Mr. Davis. In her opposing papers, she indicates that in Mr. Davis’ divorce papers, it contained a signed sworn to affidavit that he hadn’t had sex with her for a period of one year. It, therefore, would be impossible for him to be the father of Ethan. Mrs. Davis also alleged that if Mr. Davis is recanting his sworn statement, he should be prosecuted under the NY Penal Law, §210.10 for perjury.

The Appellate Division, Second Department, in its decision on the appeal, indicated that this was the wrong venue to allege criminal conduct. The court further stated that “the sad truth is that New York’s insistence on fault based divorce ends up promoting a disregard for the truth by fostering and encouraging the embellishment of a spouse’s wrong doing as to grounds …”

The court found that there should a presumption of legitimacy of the child being a child of the marriage because it was in the child’s best interests. The court further stated that it is presumed that Mr. Davis was Ethan’s father by virtue of the fact that he had been married to Ethan’s mother when the child was born. The court stated it was in the child’s best interests that his father’s name appear on his birth certificate and that the father should be able to establish a father-son relationship.

If New York had a true no-fault divorce law with a ground such as “irreconcilable differences” or “incompatibility,” individuals would not be motivated to submit false affidavits in divorce lawsuits for the sole purpose of ending their marriage. Although, New York State in many respects is a very forward thinking state, this is not true when it comes to New York’s divorce laws. The court stated that the “view of marriage is more reflective of the time of the Empire of Queen Victoria than it is of the second decade of the 21^st Century”. The failure of New York’s legal system to adopt a divorce law that reflects 21^st Century sensibilities willl continue to impugn the integrity of the legal system in the State of New York.

The Law Office of Elliot S. Schlissel has been providing legal services to individuals with marital problems for more than 30 years. Should you have an issue involving your marriage, feel free to call us at 1-800-344-6431 or email us anytime.

Picture courtesy of clemmentlaw.

Anthony Davis wrote an article in the New York Law Journal on November 4th summarizing the state of the law with regard to privacy matters when one is using his work computer to send personal e-mails.

A New York decision,  Scott v. Beth Israel Medical Center Inc., 2007 WL 3053351 (N.Y. Sup. Oct. 17, 2007), held that if you send e-mails to your attorney, even using your personal e-mail account like gmail or aol.com, on your employer’s computer, you may have waived your right to invoke your “attorney-client privilege” with regard to that e-mail. If the employer had a privacy policy in place, that employee’s were notified of, that the employer had the right to access any information an employee transmits using the employer’s computer.

The Scott court also held that even if the attorney had a standard notice at the bottom of each e-mail that the contents of the e-mail were to be private between the attorney and the client, that such notice is ineffective to save the communication from the client’s constructive waiver of the privilege resulting from the client’s decision to use his office computer to communicate with his attorney. Thus, the court suggested that attorneys should advise their clients that they should not use their office computers for communications between them, especially if the attorney feels that there is some risk that the employer might have a motivation to look into the employee’s personal e-mails.

On the other hand, a New Jersey court, in  Stengart v. Loving Care Agency Inc., 973 A.2d 390 (N.J. Super. A.D. July 29, 2009), came to the opposite conclusion. In that case, the court held that even an employer’s e-mail policy granting it access to all employees’ e-mails on their computers, will not be valid to waive the employee’s attorney-client privilege. The employer-defendant in that case has appealed that case to the New Jersey Supreme Court, which just heard arguments on the case. When that court comes to a decision in the matter, at least New Jersey will have come up with a definitive conclusion on the matter.

For the time being, in New Jersey, and especially in New York, you should not send any e-mails, using one’s work computer, that you would like to keep private. This is especially true if you are writing your attorney regarding a case against the employer on whose computer you are sending the e-mail.

It is better to either wait until you have access to your home computer after work to send private e-mails, or to use a cell phone, iPhone, or (privately owned) Blackberry if you have to send private e-mail during business hours.

As always, if you need help with any kind of personal injury, contract, or other litigation, you can call our office 24/7 at 800-344-6431 or send us an e-mail (not necessarily on your boss’ computer!)

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There is a growing feeling among fathers who deal with the Family Courts and the Supreme Courts in the State of New York on matrimonial and family law matters that they are being treated unfairly. The law in the State of New York says that fathers and mothers have equal rights to custody. There is no presumption that mothers should receive custody and fathers should pay child support. However, many fathers who have dealt with the legal system come away with a sour taste in their mouth due to bias in favor of the mother.

Father’s rights attorneys are matrimonial and family law attorneys with extensive experience in protecting the rights of fathers involved with custody, support and visitation matters. If you feel you are being treated unfairly, contact the father’s rights attorneys at the Law Office of Elliot S. Schlissel. We can help you!

-Elliot S. Schlissel, Esq.

800-344-6431

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What type of drug cases do you handle?

Our offices handles every type of drug case, from relatively minor prosecutions for possession of marijuana, to defending those who are charged will selling “hard drugs.”  There is a big difference between the kind of sentences imposed for what are called hard drugs, such as cocaine and heroin, and soft drugs such as marijuana. While selling marijuana is prosecuted relatively tepidly in New York, Brooklyn and Queens courts, in Nassau and Suffolk County counties, they generally prosecute even marijuana possession quite aggressively.

We represent people who are charged with the possession and/or sale of cocaine and heroin, which used to be subject to very severe penalties under the “Rockefeller Drug Laws,” which were in effect in New York for decades. Recent changes in the law have significantly reduced these penalties.

The unauthorized possession or sale of prescription bills can also subject a person to serious criminal charges.  Some of these pharmaceuticals are manufactured in illegal laboratories.

What are some of the pills that you’ve seen?

We have defended clients who were charged with illegally obtaining such drugs as Vicodin, Oxycontin and Percocet.

How are the crimes of sale and possession defined in New York?

Possession is not penalized as severely as crimes relating to the sale of illegal narcotics. It is possible to inadvertently commit the crime of selling drugs by buying some drugs and then giving or selling a small amount to a friend. Although the person may not intend to become a “drug dealer,” he is inadvertently committing a much more serious offense than merely possessing drugs. 

The system works in the following way:  If the authorities arrest you for possessing a narcotics of a certain weight, you would often want to make a plea deal with the prosecutor. It is sometimes necessary for you to cooperate with the police or the district attorney’s office by giving them information to assist in the prosecution of someone on a higher level in the drug dealing chain. This is what happens to many individuals on the lowest level of the drug dealing pyramid structure who are caught by narcotics agents, or “narcs,” as they sell drugs on the street.

As indicated earlier in this post, New York City, Brooklyn and Queens counties treat drug crimes differently than they do in Nassau and Suffolk counties. In the latter, these cases are more vigorously prosecuted in the Long Island suburbs than they are in the city.

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Many employers in New York employ those with a relatively low salary. Both the employer and the employee may be concerned that the employee remain eligible for the Child Health Plus health plan, WIC, free and reduced cost lunch programs, and food stamps. Thus, they both have an interest in making sure that the employer does not erroneously report too much income for the employee on pay stubs and W-2 forms, which may negatively affect the employee’s eligibility for these programs.

For example, does the employer have to report health insurance contributions made on behalf of the employee as part of the employee’s gross pay?

An employer must give the employee, with every paycheck, a statement (pay stub) indicating (1) the employee’s gross wages, (2) deductions from salary for taxes, benefit contributions, etc., and (3) net pay. NY Labor Law § 195(3).

In order to understand which wages and non-cash benefits an employer must report as gross income to the employee, we must first understand whether § 195(3)‘s requirement to specify the employee’s “gross wages” means that the employer must report the health plan contributions it made on the employee’s behalf.

The NY Labor Law Definitions do not define either “wages” or “gross wages.” Therefore, we turn to how the Internal Revenue Code defines “wages.” 26 USC § 3401(a)(21)  says that “wages” means all remuneration an employer gives to an employee, including the cash value of non-cash benefits except for, among other things, payments made for the benefit of an employee if the non-cash benefit would not be included in the employee’s gross income under 26 USC § 106(b).

§ 106 says that generally, “gross income of an employee does not include employer-provided coverage under an accident or health plan.” U.S. Tax Court judges have interpreted this section to mean that payments by an employer to reimburse an employee for medical expenses or pay the employee’s health insurance premiums are not included in the employee’s gross income. Schmidt v. Comm’r, 2003 WL 22790862, *6 (T.C. Nov. 25, 2003). An earlier Tax Court clarified that “[s]ection 106 provides that an employee’s gross income does not include employer-provided coverage (e.g., accident and health insurance premiums) under an accident and health plan.” Rugby Productions Ltd. v. Comm’r, 100 T.C. 531, 535 (T.C. 1993).

Oddly, payments made directly to an employee  for “personal injury or sickness” by a health plan which are attributable to an employer provided health insurance plan are  included in the employee’s gross income. 26 USC § 105(a). But if the employee laid out the money directly and is being reimbursed for those payments by the health plan, then the reimbursements are not included in the employee’s gross income. 26 USC § 105(b).

Thus, because health insurance premium payments by an employer are not counted towards the employee’s “gross income,” they should not need to be listed as part of the employee’s “gross wages” under the NY Labor Law pay stub requirement mentioned above.

Standard disclaimer applies. But as always, if you need assistance with any kind of legal issue, whether it be Matrioninal/Family Law, Bankruptcy, Personal Injury, Wills, Trusts, & Estates, Real Estate, or Criminal/DWI,  you can always contact us by e-mail or calling 800-344-6431.

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In an effort to bring in blog traffic discuss the laws relating to having a marriage annulled in New York, it is worthwhile to bring up Britney Spears’ petition to annul her marriage signed just hours after her Las Vegas marriage. The couple tied the knot in a Las Vegas chapel Saturday morning, January 3, 2004 at 5 AM. She signed a petition to have the marriage annulled that same day, it was filed Monday morning, and a judge granted the annulment on Tuesday, January 6th. The marriage lasted about 55 hours. Las Vegas Review Journal.

The manager of Nevada Divorce and Paralegal Services said that an annulment makes it “like [the marriage] never happened in the first place.” This is not the case in New York. Here, under NY Domestic Relations Law § 7, the marriage is only void “from the time its nullity is declared by  a  court  of  competent  jurisdiction,” meaning that the marriage was legally valid from the time it began until the court declares it null and void.

A judge may annul a marriage, even where the parties have children (see §§ 7 & 24), when either one of the parties meets any one of the following criteria:

1. If a party is under age 18, then the judge may annul the marriage at his/her discretion, taking into account all of the facts and circumstances.
2. If either party is mentally incapable of consenting to a marriage because he or she is unable to understand the consequences and significance of a marriage.
3. If either party is physically and permanently incapable of entering into a marriage (i.e. having sexual relations). Sterility does not count.
4. The marriage occurred through force, duress, or fraud. Fraud may be shown where one party conceals or misrepresents some fact so material to the essence of the marriage that the other party would not have entered the marriage had it known about that fact.
5. One party has been mentally ill for five years or more before the marriage.

Britney Spears declared that the basis for her application for annulment was NRS 125.330, which allows annulment “for want of understanding.” This statute is worded very similar to New York’s, which allows annulment when “either of the parties to a marriage for want of understanding shall be incapable of assenting thereto.” New York’s law is almost the same allowing annulment when a party is “incapable of consenting to a marriage for want of understanding.” But Britney Spears said she  was “incapable” of agreeing to the marriage because she and her new husband “did not know each others likes and dislikes, each others desires to have or not have children, and each others desires as to State of residency.”

I don’t think this would work in New York. Incapacity does not mean that one simply doesn’t yet know certain information about the person she is marrying. It means she is actually incapable, due to “mental illness or retardation,”  of knowing what marriage really is, its significance and its consequences. Levine v. Dumbra, 604 N.Y.S.2d 207, 208 (2nd Dept. 1993). While some might claim, tongue in cheek,  that Ms. Spears does suffer from some mental defect, it is doubtful that a court would find that she suffers from any actual mental illness that deprives her of the capacity to understand what marriage is. She may not have known her new husband’s favorite color, but this hardly rises to the level of incapacity to understand the nature of marriage itself.

 If you need assistance with any matrimonial or family law matter, whether it be divorce, separation, child custody, annulment, adoption, or anything else, our office has over 30 years experience in these areas. So please contact our office by e-mail or call 800-344-6431 for help.

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