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Social Security, Workmen’s Compensation and Disability Payment Considered in Spousal Maintenance Award

Judge's gavel with dollars in roll

In a case before Justice Richard Dallinger, who sits in Supreme Court in Monroe County New York, the husband sought to have a social security, disability and workmen’s compensation benefits declared separate property under the New York Domestic Relations Law. He claimed these payments should not be considered income for purposes of giving his wife spousal maintenance in their pending divorce lawsuit.

Were the Benefits Income?

The counsel for the wife alleged these benefits were income.  Since they were income it was claimed they must be included with regard to the calculation of spousal maintenance.

Benefits were Husband’s Separate Property

Justice Richard Dallinger ruled the benefits were the husband’s separate property.  However, since they were separate property the corpus of the assets could not be allocated on a percentage basis to the wife.  He did find t New York courts have held the mere fact a source of income was separate property did not prohibit a court from considering this income in calculating spousal maintenance.  Justice Dallinger therefore rejected the husband’s claim that only a portion of the related to lost wages should be considered income for the purpose of calculating spousal maintenance.

Yes, The Benefits were Income

Justice Dallinger  allowed the social security, disability and workmen’s compensation to the husband to be considered income and utilized in the calculation of the wife’s spousal maintenance award.

Conclusion

Here the husband won one argument but lost on another.

Elliot-Schlissel

Elliot S. Schlisel is the managing partner of Schlissel DeCorpo LLP.  For more than 35 years he has been representing clients in divorce lawsuitdivorce cases throughout the Metropolitan New York area.  He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Application for Order of Protection Dismissed: Petitioner Failed to Move Forward with Prosecution

application for orderIn a recent case before Judge John Hunt, who sits in the Family Court in Queens County, applications for orders of protection were initiated. Judge John Hunt found the parties had been involved in an intimate relationship. They had one child together. Each of the parties had filed many petitions for orders of protection against each other over a 30 year period.

Many Petitions for Order of Protection Filed

Judge Hunt took note that not one of the petitions that had been filed was moved forward with. The parties failed to appear on the return dates of these petitions. The petitions therefore had been dismissed. Latonya had been making the same allegations in her petitions for orders of protections since 1994. She claimed the defendant, Jefferson, had a gun and he threatened to kill her as she did not want another child with him.

Jefferson’s Requests for Court Intervention

Jefferson also requested court intervention to stop Latonya from filing more petitions for orders of protection. He claimed these petitions resulted in his being arrested and losing jobs. Judge Hunt took note that in the case of such parties as Latonya and Jefferson who were not in a relationship for more than 30 years, there was no guidance as to whether such situations qualify to permit further applications under the “intimate relationship” as defined by the Family Court Act. Judge Hunt noted the legislature could not have intended to allow individuals to air their grievances and continuously file petitions after their personal relationship had failed.

New Orders of Protections Required Judge’s Approval

Judge Hunt dismissed Latonya’s newest petition for failure to prosecute. He also entered a ruling that neither party was permitted to file a new application for an order of protection in the Family Court without his prior approval.

schlissel-headshotElliot S. Schlissel, Esq. has represented clients for over 30 years in the Family Courts in the Metropolitan New York area with regard to neglect and child abuse cases. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Divorce Settlement Agreements

Settlement AgreementsSettlement agreements in divorce cases tend to be long and detailed. These agreements cover issues involving child custody, child support, spousal maintenance, the division of property, how much time each parent spends with the children, who pays for college and various other issues. It is important that the language in the agreement is clear and not subject to multiple interpretations.

The agreement should lay out the responsibilities of each of the parents in a clear and concise manner.

Visitation and Parenting Time Issues

The agreement should have a chart that breaks down what holidays are being celebrated by the children and who has parenting time with the children in odd and even years on these holidays. The agreement should also clearly stress if the holiday falls after a weekend whether the weekend and holiday shall be observed by the same parent having parenting time with the children.

A Tiebreaker

Generally speaking most parenting agreements do not have time tiebreakers. So, if one parent has to confer with the other parent on a particular issue and the parents disagree how that issue should be resolved concerning the children, there needs to be a tiebreaker. The tiebreaker in most agreements is the residential custodial parent. Unfortunately, clauses giving the residential custodial parent the final say on significant issues involving the children can be misused by that parent.

Read the Agreement Carefully

If you are entering into a settlement agreement on a divorce to start with you should carefully read it. Review all terms, conditions, obligations and matters involving financial responsibilities, visitation and custody with your attorney. Make sure you are absolutely clear as to what your responsibilities are, and the responsibilities of the other parent are with regard to all of the terms and conditions of the agreemen

schlissel-headshotElliot S. Schlissel, Esq. is the managing partner of Schlissel DeCorpo LLP. He has been representing parties in divorce and Family Court cases for more than 40 years. He can be reached for a free consultation at 800-644-6431 or e-mailed at Elliot@sdnylaw.com. .

Happy Holidays from The Law Offices of Schlissel DeCorpo, LLP

The Law Offices of Schlissel DeCorpo LLPWe pause to look back on the past year with its blessings and accomplishments, and we look forward to the new year and opportunities ahead. We are grateful for the trust you have placed in us, and we wish you a joyful holiday season.

Man Granted Motion to Seal His 2006 Conviction

Man Granted Motion to Seal His 2006 ConvictionNeider brought a proceeding to seal his 2006 misdemeanor conviction for criminal possession of a weapon. In his application he stated he was not convicted of any further offenses. He became eligible under the sealing statute New York Criminal Procedure Law Section 160.59 to have his record sealed. Neider claimed he was a law-abiding citizen. He had lived a productive life. He had a significant career. He was a family man. He served on various municipal boards. He received various licenses. He had obtained a master’s degree from a university.

Conviction Could Impact On Employment

Judge Gia Morris sitting in the Criminal Court of Queens County found while Neider conceded the conviction did not stop him from getting licenses or completing a graduate degree. Neider had indicated he was concerned this conviction could have a negative impact on his future employment possibilities.

The Queens District Attorney’s Office did not oppose the application. They found Neider was eligible and therefore no hearing was necessary.

The Court’s Decison

Judge Gia Morris rendered a decision Neider had met all of the appropriate criteria under the New York sealing statute. She rendered a finding he was an example of the type of individual Criminal Procedure Law Section 160.59 was designed to help. She ruled his 2006 conviction “stands as an apparition to an otherwise exemplary lawabiding life”. She rendered a decision that Neider’s motion to seal his 2006 conviction was granted.

Conclusion

New York has a new law that allows certain criminal convictions which are more than ten years old to be sealed. The removal of a criminal conviction can have significant impact on an individual’s employment prospects.

schlissel-headshotElliot S. Schlissel, Esq. is the managing partner of Schlissel DeCorpo LLP. He can help individuals seal their criminal record. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Foreclosure Lawsuit Dismissed

foreclosure-lawsuit-dismissedThis case involved a mortgagor by the name of Ramirez. Ramirez brought a summary judgment motion seeking a dismissal of the residential foreclosure lawsuit against him. He also sought cancellation and discharge of the mortgage.

CitiMortgage, the mortgage holder, cross-moved for summary judgment. They sought to strike Ramirez’s answer and counterclaims. They also sought an Order of Reference to allow them to sell Ramirez’s home.

Statute of Limitations

Ramirez had defaulted in making payments on his note and mortgage. An initial foreclosure lawsuit was commenced in 2010. However, it was dismissed by the court as being abandoned. CitiMortgage took no action to appeal the motion dismissing the initial 2010 lawsuit.

The Second Foreclosure Lawsuit

In 2017 CitiMortgage filed a new foreclosure lawsuit against Ramirez. Ramirez argued this lawsuit should be dismissed because the 6 year statute of limitations to bring a foreclosure action had expired before the commencement of this lawsuit. CitiMortgage claimed they unequivocally revoked the acceleration of the mortgage.

The Judge’s Decision

Justice Vincent Versad sitting in Supreme Court part in Schenectady County ruled CitiMortgage had failed to meet a five prong test that would reset the statute of limitations clock on Ramirez’s mortgage. Judge Versad found Ramirez suffered substantial prejudice while relying on the acceleration of the mortgage. The Judge found he would be further prejudiced if CitiMortgage was permitted to benefit from its own neglect in timely pursuing its claim. Ramirez’s motion was granted, the foreclosure lawsuit was dismissed and the mortgage was discharged.

schlissel-headshotElliot S. Schillsel is the managing partner of Schlissel DeCorpo LLP. He has been representing clients with regard to foreclosure defense cases for more than 30 years. He can be reached for a free consultation at: 800-344-6431 or e-mailed at: Elliot@sdnylaw.com.

Joint Custody

joint-custodyNew York State has a gender neutral custody law. There is no longer a presumption that either parent should have custody of the children. Both parents have equal rights to seek custody of their children. It should be noted equal rights to obtain custody is not the same standard as to what is in the children’s best interests. Courts determine who receives custody of the parties’ children based on what is in the children’s best interest.

Legal Custody

Legal custody of children is usually determined by a proceeding in front of a judge. Courts seek to avoid issuing court orders awarding joint custody to parents.

There is a Court of Appeals decision (the highest court in the State of New York) which states joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in a mature civilized fashion. Situations where the parents do not get along, are not communicative with each other, are not right for joint ustody arrangements.

Quality Time with Children

Joint custody arrangements tend to work out when the children are very young. As children grow older they develop their own social circles and own friendships. Joint custody arrangements tend to get in the way of the children’s lives. Some studies have found it is not necessarily a benefit to the children for them to spend equal time with both parents.

Conclusion

Many parents seek to have equal parenting time with their children. It seems to meet the parents’ needs to develop a strong relationship with their children. However, giving each parent equal time with their children does not necessarily work out to be in the children’s best interest and equal parenting time arrangements generally break down as the children mature and go through puberty.

schlissel-headshotElliot S. Schlissel, Esq. is managing partner of Schlissel DeCorpo LLP. He has been representing parents in custody disputes for more than 30 years. He can be reached at 800-344-6431 or e-mailed at: Elliot@sdnylaw.com.

Happy Thanksgiving

Happy Thanksgiving 2018

At this time of year, we stop to give thanks: for our friends and families, for meaningful work, and for valued clients like you. We are truly grateful that you choose to work with us and we are dedicated to helping you achieve your goals.

We wish you all the blessings of a peaceful holiday with those you love. Happy Thanksgiving!

False Allegations of Child Abuse in Divorces

Child-Abuse-in-Divorces

Divorces can be amicable or be a type of limited warfare between the parents. Sometimes the issue of who is going to be the residential custodial parent is a significant issue in a divorce case. It occasionally leads unscrupulous parents to create accusations of child abuse to further their desire to become the residential custodial parent of the children and have a negative impact on the other parent’s parental rights. One spouse can accuse the other spouse of abusing the children. It can be the result of anger or concern that the parent making the allegations will not be successful in obtaining custody of the children unless they resort to this underhanded, inappropriate strategy.

Parental Alienation

There is a method for one parent to demotivate a child from spending time with the other parent. The alienating parent to engages in a type of brainwashing called parental alienation. In this circumstance one parent convinces the child the other parent is abusing them. This is done during a litigated custody case. It is extremely important if this happens that an experienced child custody attorney be retained. Advocacy by this attorney can be used to point out to the court the lack of evidence of child abuse and how the allegations are specifically related to the ongoing custody case.

Orders of Protection

Temporary orders of protection are often granted to one spouse when they falsely accuse the other spouse of abusing the children. Aggressive legal action must be taken to demand a hearing with regard to these issues. These issues should not be allowed to linger. The longer the order of protection is in effect preventing one parent from having any interaction with the other parent or children, the more likely this will impact on the long term relationship between the parent whose kept away from the children.

schlissel-headshot

Elliot S. Schlissel, Esq. is an attorney who has dealt with child abuse and child neglect issues for more than 3 decades. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Happy Halloween!

Happy Halloween! 2018

Valley Stream, Lynbrook, Baldwin, Malverne, Freeport, Oceanside, Long Beach, Elmont, Lakeview, West Hempstead, Hempstead, Merrick, Bellmore

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