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Monday, December 26, 2011

Add Ons to Child Support

So here you are, finalizing your divorce, and you notice that your spouse is not only asking for weekly payments for child support, but wants additional payments for other costs such as:  private school tuition, tutors, swim lessons, any and all associated medical costs of the children, and pretty much any cost that can be associated with your childen.  So you start thinking:  "Hey!  What happened to just paying regular child support checks?  What are all these other costs that I have to pay for?"  These, my friend, are called "Add Ons for Child Support."  

 

First of all, let's make sure we differentiate between "basic child support" and "add on support."  Basic child support is the percentage calculated according to New York State Domestic Relations Law for support based on a parent’s income.  However, "Add on support" is additional support for other costs such as:  health insurance and unreimbursed medical expenses, some educational costs, and daycare. 

To calculate what each parent has to pay for "add on" child support, each parent must look at each cost incurred and then apply what their pro rata share is for the expense.  For example, if each parent earns $50,000, each would pay 50% of the add on costs.  If one parent earns $20,000 and the other earns $80,000 they would pay 20% and 80%, respectively, of the add on costs.  These percentages are often included in a divorce stipulation or agreement, as they are additional costs beyond simply what a parent would have to pay under the law.  

Currently, parents can deviate from their pro rata shares of the add on child support, but their agreement or the court order must specify their reasons for the deviation.  The parties may also agree to include additional “add on” support categories, such as the cost of camps and extracurricular activities for their children. 

Domestic Relations Law §240 (1)(d) provides that the cost of the health care insurance premium must be paid by the parties in accordance with the pro rata shares.  Domestic Relations Law §240 (1-b)(c)(5) provides that reasonable health care expenses that are not covered by insurance, i.e., unreimbursed medical expenses, are allocated in the same proportion as each parent’s income is to the combined parental income.  In determining which parent should carry the insurance for the children, the Court normally investigates who is offered insurance by their employer, the comprehensiveness of the insurance offered, and the cost of such premiums.  In most cases, the children will remain covered under the better health care plan, although not in every situation.  

Domestic Relations Law §240 (1-b)(c)(4) and Domestic Relations Law §240 (1-b)(c)(6) provide that a "custodial parent who is working, is looking for work, or is in school or training which will lead to employment and incurs reasonable day care expenses, such expenses must be paid by the parties in accordance with the pro rata shares." 

For parties who agree that their children will attend private school, or whose children have been enrolled in private school prior to the commencement of a divorce action, they may be obligated to pay these educational expenses in accordance with their pro rata shares.  These often must be paid on a weekly or monthly basis, in addition to the child support payments that were ordered or agreed upon.  

 

Also keep in mind that "education" expenses will often times expand beyond just the direct costs of attending school.  As mentioned above, these include tutoring, activities, sports, or even a private driver if doing so is necessary for the safety of the children.  

The main thng to keep in mind through your divorce and when preparing your divorce agreement, is that if you allow "add ons" to be included in child support, your required payments might be much much higher than what you initially imagined.  

Lessons Learned From a Hard First Year of Solo Law Practice

I have a couple more months before I write one of these, but I'm already noticing a lot of similiarities to what I have found.  You can find the full article here:

Lessons Learned from a Hard First Year of Solo Practice

So perhaps I should just repeat some of the biggest realiziations I have had after 6 months of true full time solo practice:

First and foremost, I learned that I can do this! 

I learned not to waste money on marketing.

I learned not to waste money on other things, too. Like memberships to networking groups, ads in local home & leisure publications, and fancy extras like all the add-ons my phone company offered me or hiring a decorator to fix up my office. 

I learned where my leads actually come from. I get at least half of my clients from referral sources like other attorneys and existing clients. 

I learned how to get clients through my website. You want better SEO? Translation: do you want your website to stand out on Google? Learn some basic ins and outs of how the Internet works. Use a back-end to your website like Joomla or WordPress that automatically handles it for you.

I learned how much money I need to stay afloat. I wrapped my head around my own cash flow.

I learned that I can do it all myself, but that I don’t have to. I’m no longer a one-man band.

Finally, I learned to love my life, right now, just as it is. My life is not perfect, don’t get me wrong. It would be nice to be a little more profitable, but the firm is beginning to thrive. 

So I will certainly update this again along the way, but I think these points are great.  

You know, I recently spoke to a friend from law school about going into my own practice.  He certainly had some ambivilance and worry about how it work out and whether he could afford to do it.  I told him that I could not recommend more how easy and rewarding it is to run your own practice.  So here I am , the end of December 2011.  Back in the beginning of August, 2011, I didn't have a website, nor had I ever had more than 2 clients at a time.  Now, I have more than 25 currently retained clients in a multitude of practice areas, and every week I get more calls.  

And you know what?  Ultimately, I did it all on my own.  

Sunday, December 25, 2011

When Forensics Examiners Help Win Child Custody

When there is a disagreement over child custody, often times the family court judge or referee will order an outside forensics study be made. This is an depth examination of both parents, their jobs, living arrangements, and what may be the best interest of the child.

For a further read this article covers it pretty well :

Engaging Forensic Examiners to Strengthen Your Custody Case

It's important to remember though that forensics are supposed to be done on an independent basis, but often times who is selected and the report they give can have a huge impact on your child custody case.

Saturday, December 24, 2011

When Baby Boomers Get Divorced

From my personal experience of being a divorce attorney, I have noticed that perhaps more than 50% of my clients have been around the Baby Boomer age.  Meaning, a number of my clients are already retired, or close to retirement, and are involved in a divorce proceeding. 

Recently Abrams and Festerman posted an article discussing this new trend, which you can find here:

http://www.abramslaw.com/CM/Articles/Articles304.asp

Here are some highlights:

Now [baby boomers] are pioneering a new trend in matrimonial law - the "gray divorce," the phenomenon of couples divorcing after the age of 50.  
Several cultural changes have contributed to the baby boomers generating high rates of late-life divorce. In the past 20 years, gender roles have shifted significantly, and women have become increasingly less financially dependent on men. According to a recent survey by the American Association for Retired Persons (AARP), women over 50 now initiate two-thirds of divorce proceedings.  
Furthermore, boomers entering their retirement years are healthier than any previous generation and are projected to have longer life expectancies. As such, experts have observed a growing desire for fulfillment in the later years, as well as an inclination to leave a dispassionate marriage. Additionally, as the children of boomers enter adulthood, parents are less concerned about the impact of divorce on their offspring and are more likely to exit the marriage without worries about custody, child support and the effects of divorce on young children.
People who divorce later in life have had more time to accumulate assets and debts, which can be significant in a remarriage and subsequent divorce. Access to pensions, retirement account balances and Social Security benefits must be considered.  
Marriages and divorces later in life come with their fair share of financial ramifications. Later-in-life divorces can be problematic because individuals' future earning potentials are typically limited. When combined with the possibility of costly health problems, individuals may be unable to maintain the status quo of the lifestyle they enjoyed as married couples, and older couples may have a harder time adjusting their personal habits and money management styles.
New York is an equitable distribution state; accordingly, the marital assets and liabilities ("marital property") are divided in an equitable fashion, meaning that the marital property will be divided in such a way that fairly represents the parties' respective contributions to the marriage. In the context of negotiating a settlement agreement, it is important to consider all the assets that are subject to distribution. Parties may decide to trade off passive assets or negotiate percentages of various active assets, such as a business or professional practice, and courts typically look to indirect contributions - for example, from a homemaker spouse - in order to determine the proper percentages.  As for credit cards post-divorce, each party should remember to remove the former spouse from any credit card account held in his or her name to prevent the former spouse from incurring additional debt.
The amount of maintenance, if any, is generally determined by balancing the payor spouse's ability to pay with the payee spouse's reasonable needs. Additionally, it is imperative to secure any financial obligation. While life insurance may be cost prohibitive depending upon age and health, it is possible to secure payments through mortgages, confessions of judgment and other security devices. 
In today's troubled real estate market, the marital residence may not have retained its prior value and may remain unsold for a long period of time. Dividing the remaining equity (net proceeds) may not provide the husband or wife with enough financial wherewithal to obtain adequate separate housing.
Pensions and retirement plans are considered marital assets; typically, the amount that was earned during the marriage will be subject to equitable distribution pursuant to New York's Domestic Relations Law (DRL).   If the retirement plan is an ERISA qualified plan, such as a 401(k), 403(b) or other employer-sponsored plan, the law requires the non-participating spouse to be the primary beneficiary, unless otherwise waived in writing. It is important to obtain an accurate determination of the value of pension plans, IRAs and stock holdings, together with their concomitant tax ramifications. Taxes on retirement funds must be considered when determining the true value of those accounts.
Except as otherwise provided in DRL § 236, a husband and wife cannot contract to alter or dissolve the marriage or to relieve either of his or her liability to support the other in such a manner that he or she will become incapable of self-support and, therefore, likely to become a public charge.

So what's the lesson here?  As the article brings up several times, when couples are getting married later in life, an prenuptial agreement is more important than ever.  Couples should not feel that there is some stigma associated with signing a prenuptial agreement, especially when doing so can remove so many complications down the road.

Additionally, getting a divorce later in life, even when uncontested, still have many more assets and liabilities to work out than a divorce among a younger couple.  It is very important for both spouses to take a close look at their financial picture so that issues of distribution can be dealt with in the easiest way possible.

Thursday, December 15, 2011

Four Tips for Same Sex Couples in New York

The New York Divorce Report has come out with a good starting list of tips for same sex couples planning on getting married in New York, or those already legally married in New York :
Four Tips To Protect Same-Sex Married Couples in New York : New York Divorce Report : Daniel E. Clement: New Jersey & NY Lawyer & Attorney for Family Law & Pre-Nuptials
These tips include the following : 
1. Sign a Pre-Nuptial Agreement
- It the parties are already married, the parties could consider entering into a post-nuptial agreement.
2. Prepare a healthcare proxy for each family member.
A health care proxy enables a designee to obtain medical information to make medical decision on behalf of his/her loved ones.
3. The non-biological parent should adopt the children of the marriage
Should the non-biological parent (or in the case of adoptive children, the non-adoptive parent) be not deemed the “legal” parent of a child, the party could be denied parenting time, custody or visitation, with children of the relationship.
4. Develop an estate plan; draft a will.
As more and more same sex couples become legally married in New York, these tips will become much more vital for each couple to consider.

Wednesday, December 14, 2011

How to Know if You Need to File for Bankruptcy

Here's another great piece by the Tampa Bay Bankruptcy Blog about how to know if it's finally time to file for bankruptcy :

How to Know if You Need to File for Bankruptcy | Tampa Bankruptcy Blog

Some highlights of the article :

So if you are in any of these situations, it’s time to seriously consider filing for bankruptcy:

1. You have hired debt management companies to look into your finances and help you solve your debt problems but with little or no success. This might be for you as an individual or your business. Debt management companies will advise you on debt reducing and debt consolidation methods to ease your debt burden. But sometimes, the strategies do not work as well as you need them to.

2. Your creditors are hot on your heels and getting more persistent by the day. You are getting more notices in the mail, more phone calls, more text messages, more emails etc. And the trend is getting increasingly more disturbing to you and your family. You are not sure when any of your creditors may get mean and send debt collectors knocking on your door.

3. You are suffering mentally, emotionally and even physically. You cannot sleep well at nights, your peace is disrupted, you get headaches, and your health is impaired. You are constantly anxious and worried and your debt problems are constantly on your mind virtually 24-7.

More info is available through the link. It's a must read for anyone contemplating bankruptcy but perhaps too scared of the implications.

Saturday, December 10, 2011

Stop Getting Harassed by your Creditors

A lot of Bankruptcy clients come to me when things are down to the wire, and need the Bankruptcy filed yesterday.  Thankfully, even though the full Bankruptcy filing takes a while to prepare, we can stop all colleciton efforts while we finish your Bankruptcy petition.  Recently Skiba Law blog posted about this:

http://skibalaw.com/773/a-the-automatic-stay-of-bankruptcy/


The automatic stay is an Order issued by the ... Bankruptcy Court when you file your bankruptcy case.  It is issued automatically pursuant to the bankruptcy code, thus the “automatic” part, and it “stays” or stops all collection efforts against you and your stuff.
If your wages are being garnished, the automatic stay stops that.  Immediately.  If your house is set to be foreclosed down at the ... courthouse steps at noon today, and you file bankruptcy at 11:30, the automatic stay stops it.  If you are being sued, the automatic stay stops it.  And the one most people love – if your phone is ringing off the hook all day long – IT STOPS IT!
The automatic stay is one of the most powerful of all bankruptcy tools.  It gives you a chance to catch your breath, evaluate your position, and determine a plan forward.  It takes away much of the fear and stress of your current situation.  You will actually be able to answer your phone.  You won’t have to worry that the knock on the door is a process server dropping off the next law suit.  The automatic stay can literally help bring peace back into your life.

Wednesday, December 7, 2011

Judge prevents deportation based on gay marriage.

History as gay marriage prevents deport - m.NYPOST.com

This appears to be the first step towards the federal courts recognizing gay marriage as a basis to remain in the country.

Considering that DOMA had prevented recognition of gay marriage by the federal government, this is a very important first step federal recognition and allowing those in a same sex marriage to remain in the United States.

Saturday, November 19, 2011

Court finds that Non-custodial Parent does not have right to children at school

Recently, the Court of Appeals came out with a decision affirming that a non-custodial parent does not have a constitutional right to visitation with their children at school, if the divorce decree and visitation order does not allow such an order.

The case was Schmidt v. Des Moines Public Schools, 8th Circuit Court of Appeals, and can be found here:  http://caselaw.findlaw.com/us-8th-circuit/1580031.html

The mother in this case was awarded shared custody, but the father in Iowa was awarded physical custody.  The order also set forth a schedule granting Lisa Schmidt visitation periods with the children during certain holidays and school breaks. It provided for additional visitation only “as mutually agreed to by and between the parties so as not to interfere with the health, education and welfare of the parties' minor children.”

On several occasions, Schmidt unsuccessfully attempted to visit the children at their schools during the school day. In some cases, school officials told the children that Schmidt was at the school and wanted to visit with them. The children told the officials that they did not want to see Schmidt, and Schmidt was not granted access to the children. On one occasion, Schmidt attempted to visit one of the children during a school performance, and a school official told her that the child was not at school.  Schmidt's ex-husband sent several letters and e-mails to school officials during this period. The correspondence informed them about the terms of the court orders and asked them not to permit Schmidt to visit the children during school hours or to withdraw them from school.

In an appeal involving only procedural due process, the court has held that a noncustodial parent with visitation rights has, “at least in some form,” a liberty interest in the care, custody, and management of his child. Swipies v. Kofka, 419 F.3d 709, 714 (8th Cir.2005).

The court held several important points:

It is not clear that a parent's fundamental liberty interest in the care, custody, and management of her children includes unfettered access to the children during a school day. See Meadows v. Lake Travis Ind. Sch. Dist., 397 F. App'x 1, 2 (5th Cir.2010) (per curiam); Crowley v.. McKinney, 400 F.3d 965, 969 (7th Cir.2005); Bangura v. City of Phila., No. 07–127, 2008 WL 934438, at *4 (E.D.Pa. Apr. 1, 2008). But whatever the scope of that liberty interest, it can be “substantially reduced by the terms of [a] divorce decree and [state] law.” Zakrzewski, 87 F.3d at 1014.

It was reasonable for the defendants to construe the court orders to prohibit Schmidt from interrupting the children's school day without the prior consent of her ex-husband, particularly in light of the proviso that additional visitation with the children must be arranged “so as not to interfere with the education of the parties' minor children.” The doctrine of substantive due process is reserved for truly extraordinary and egregious cases; it does not forbid “reasonable, though possibly erroneous, legal interpretation.” Brittain, 451 F.3d at 996.

Schmidt asserts that she also demonstrated that the defendants violated her procedural due process rights by infringing on her parenting liberty interest and leaving her “without recourse to a state law remedy.” Even assuming that Schmidt demonstrated an infringement on a protected liberty interest, the state-law procedures in place to remedy such violations were sufficient to provide her with due process. If Schmidt believed that the defendants were misinterpreting the divorce decree's visitation provisions, she could have sought modification of the decree in state court at any time. See In re Marriage of Brown, 778 N.W.2d 47, 51–52 (Iowa Ct.App.2009). Schmidt could have submitted a formal written request to the school district for the educational records and information she sought about the children, pursuant to the school district's policy concerning noncustodial parents. Schmidt also could have requested a contempt proceeding in which the state court could order Schmidt's ex-husband to permit the schools to provide any information that Schmidt requested. See Iowa Code § 598.23(2)(d). Schmidt eventually pursued the latter course, and the state court issued an order in September 2008 requiring Michael Schmidt to “execute any and all documents necessary to allow [Schmidt] access ․ to any and all records or documents concerning the parties' minor children including ․ school records.” Given the limited nature of any infringement on Schmidt's protected liberty interest, these procedures were sufficient to protect Schmidt's right to procedural due process. 


So what to make of all of this?  Basically this case says that schools districts should be able to grant parents equal rights, unless a court order, such as that coming from a divorce, limits the rights a parent has to her children while they are in school.

If you are a parent who has sole or shared custody, and have a visitation schedule set up that does not include days or times when the children are at school, then make sure you tell the school district that they should not allow access to your children while they are at school to the non-custodial parent.

Saturday, November 12, 2011

Dear Legal Scammers: I am on to you.

I have recently seen an influx of potential clients contacting me about representing them to help collect either a divorce settlement or enforce a contract.  Inevitably, all the contacts live outside the United States, but the person they're trying to collect from somehow lives in New York.  Here are some of the type of contacts I have received:

Dear Counsel,

My name is Miyoko Kazuo. I am contacting your firm in regards to a divorce settlement with my ex husband Naoki Kazuo who resides in your jurisdiction.

I am currently on assignment in S.Korea. We had an out of court agreement (Collaborative Law Agreement) for him to pay $648,450.00 plus legal fees. He has only paid me $148,000 since.

I am hereby seeking your firm`s assistance in collecting the balance from him.

He has agreed already to pay me the balance but it is my belief that a Law firm like yours is needed to help me collect/enforce payment from my ex-husband or litigate this matter if he fails to pay as promised.

Kindly Reply:
Your's truly, 

Just to show you how it's a scammer, this is a referral I received from someone who just made an inquiry on a website that was not specific to my practice:

Dear Attorney, I am Miyoko Kazuo,but now undergoing medical treatment in Korea I am contacting your law firm in regards to a divorce settlement with my ex-husband Naoki Kazuo who resides in your jurisdiction. We had out of court (Collaborative Law Agreement) for him to settle me with usd648,000 he only paid usd148,000 and has been proving extremely difficult to balance the shortfall. I am seeking your law firm`s legal assistance to help get the balance from him. He agreed already to pay the balance, but it is my belief that he will fail again, because he has been flip-flopping for more than a year ago and that is my reason to contact a Law firm like yours to help enforce him to comply with the rest payments. Please get hold of me at the earliest convenience to let me know your procedure and operational charges. kind regards, Miyoko.

 Next we have another South Korean on assignment:

Dear Counsel

My name is Isabella Minoru. I am contacting your firm in regards to a divorce settlement with my ex husband Franklin Minoru who resides in your jurisdiction.

I am currently on assignment in South Korea. We had an out of court agreement for him to pay $623,000,00 plus legal fees. He has only paid me $122,000.00 since.

I am hereby seeking your firm`s assistance in collecting the balance from him or litigate this matter if he fails to pay as promised because He has delayed for too long. If you are in the position to represent me at the moment kindly advice immediately.

Your's Truly,
Isabella Minoru.
So I brought this up to some of my coworkers downtown, and one of them sent me an article highlighting the prevalence of this.  You can find it here:  http://apps.americanbar.org/lpm/lpt/articles/pma07091.shtml

Some highlights of the article:


What is Happening
A “bogus check scheme” seen across Canada and the United States has duped many unsuspecting lawyers. While each case has a slightly different fact scenario, there is a common theme. In these schemes, a lawyer is retained by a bogus client and receives funds into his or her trust account by way of a check or bank draft that appears legitimate.
Within days of receiving the funds and depositing them to the trust account, the lawyer pays out funds from the account before learning (sometimes many weeks later) that the funds were bogus, the check returned and his or her trust account debited.

In these cases, the fraudsters delayed confirmation that the check was bogus long enough to get the lawyer’s trust account money and abscond with it. They did it by changing the nine-digit MICR (magnetic ink character recognition) lines at the bottom of the check. This resulted in the check indicating that it was drawn on one particular bank, while the code recognized the check as being from another bank, thus creating a delay in the clearing process.


How to Protect Yourself
Similar and new scams are attempted daily. No area of practice is immune. To minimize the chance of being victimized you should be alert to:
  • Situations where little or no legal work is required, but a large sum of money is expected to flow into and out of your trust account;
  • A client who is prepared to pay higher than normal legal fees for what seems to be very little work;
  • Typos on bank drafts/checks;
  • Bank drafts/checks drawn on poor quality paper;
  • Spelling and/or grammar mistakes in emails sent to you by the company or individual asking for representation;
  • Evasive or inconsistent answers from prospective clients when they are asked to provide more information;
  • A client with no apparent connection to you, who compliments you on your “special expertise or qualifications.” Ask yourself why this client would want you to act for them; is it you, or your trust account they want? Don’t let flatteries from the client go to your head;
  • Rushed closings or transactions and a client who is pressuring you to do something that just doesn’t feel right. Don’t pay out funds too quickly and without doing all necessary investigations on your client and on the authenticity of funds provided to you;
  • Periods of time when there are banking holidays and when you are short staffed, e.g., between Christmas and New Years or before a long weekend. These are times when details may not be checked as closely, and also times when banks are closed; resulting in delays in the return of counterfeit checks and bank drafts
  • Check and keep envelopes when bank drafts and checks are received; in one British Columbia case a bank draft received by a law firm from what was purported to be a Canadian company came in an envelope from Romania; 
So guess what scammers...I'm on to your scheme.  Now please stop spamming my inbox with your requests for legal representation.  My attention is better spent on those who actually need it.  Thanks.

Monday, November 7, 2011

Distribution of Property and Assets in a Divorce

I have been asked by many clients about property and assets in a divorce.  The presumption is that all property is just split 50/50, or that if someone was at fault, then the other party gets everything.  This is not the case. 

First it is important to differentiate between separate property and marital property in a divorce, as the court has no jurisdiction to distribute property that is not considered marital property. 

Generally speaking, all property acquired by either spouse before the marriage is considered non-marital property. All property acquired after the marriage is considered property of the marriage or marital property.

Property Is Presumed To Be Marital Property Except For:
  • Property acquired by gift, legacy or descent.
  • Property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent.
  • Property acquired by a spouse after a Judgment of Legal Separation.
  • Property excluded by valid agreement of the parties.
  • Any judgment or property obtained by judgment awarded to a spouse from the other spouse.
  • Property acquired before the marriage.
In terms of distribution of property that is considered marital property in New York, equitable distribution laws apply.

Directly from Domestic Relations Law Sec. B(5)(d): 

In determining an equitable disposition of property under paragraph c, the court shall consider:

(1) the income and property of each party at the time of marriage, and at the time of the commencement of the action;

(2) the duration of the marriage and the age and health of both parties;

(3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;

(4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;

(5) the loss of health insurance benefits upon dissolution of the marriage;

(6) any award of maintenance under subdivision six of this part;

(7) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;

(8) the liquid or non-liquid character of all marital property;

(9) the probable future financial circumstances of each party;

(10) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;

(11) the tax consequences to each party;

(12) the wasteful dissipation of assets by either spouse;

(13) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;

(14) any other factor which the court shall expressly find to be just and proper.

Property acquired during the marriage is presumed to be marital property. Raviv v. Raviv, 153 AD2d 932 (2nd Dept. 1989). This presumption may be overcome by the party seeking to prove it is separate, but absent such proof the default is to assume it is marital. Likewise, when one spouse puts property in the name of both spouses, the asset becomes marital. See Lisetza v. Lisetza, 135 AD2d 20 (3rd Dept. 1988). However, the transferring party should be given a credit. Robertson v. Robertson 186 AD2d 124 (2nd Dept. 1992).

Proposed Upcoming Changes to Divorce Law in New York

The New York City Bar Association, in collaboration with several committees, recently released a report reviewing many aspects of Family Law and Matrimonial Law in New York State.  You can find the full report here:  http://www2.nycbar.org/pdf/report/uploads/20072191-ReporttoLRConNYStateMaintenanceLaws.pdf

Here are some important highlights that are of note:

Current law already creates myriad interconnections between Supreme Court and Family Court, and between spousal support and maintenance. A Family Court award of spousal support is valid until a divorce decree is entered. In a matrimonial action, a court may choose to leave a Family Court support order untouched, or it may preempt the existing order by issuing an award of temporary maintenance.

Family Court is a court of limited jurisdiction and may exercise only those powers specifically granted to it by the state constitution or by statute. The state constitution grants the Family Court exclusive original jurisdiction over “the support of dependents except for support incidental to actions and proceedings in this state for marital separation, divorce, annulment of marriage or dissolution of marriage.”

Although a Family Court order for spousal support may be valid until the completion of a divorce action, a Supreme Court temporary maintenance award preempts any pre-existing spousal support order.

The courts developed the concept of enhanced earning capacity as an asset to be divided in equitable distribution. See O’Brien v. O’Brien, 66 N.Y.2d 576 (1985); Elkus v. Elkus, 169 A.D. 134 (1st Dept. 1991) and their progeny. As the Court of Appeals noted, “marital property” as defined by the DRL has been found “to include a wide range of intangible interests which in other contexts might not be recognized as divisible property at all.” DeJesus v. DeJesus, 90 N.Y.2d 643, 647 (1997).

Similar to where we stood before passage of no-fault divorce, New York now finds that it is one of the last states to use the concept of Enhanced Earning Capacity as an asset. And, to further complicate matters, the concept of Enhanced Earning Capacity as an asset is not recognized by the bankruptcy courts, which creates potential conflicts for New York State residents.


Additionally, summaries were provided of these committees comments to several laws currently in place: 

(1) The temporary maintenance guidelines require consideration of “the existence and duration of a pre-marital joint household”. Some members of the group believe that this is an important addition to the law and recognizes modern-day reality. Proponents also stress that this provision is important to protect the lesser-monied spouse, particularly in those cases where the withholding of marriage is used as a means of control. However, other members of the group are concerned that this can be interpreted as fundamentally altering when the obligations of marriage begin and that it will lead to litigation in the many cases where people live together before getting married, in essence, recognizing the equivalent of a common law marriage. Further, in light of the passage of the Marriage Equality Law, the existence of pre-marriage living arrangements among same-sex couples who were unable to marry in New York takes on new significance in this context.

(2) The temporary maintenance guidelines require consideration of “the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party’s earning capacity or ability to obtain meaningful employment”. Proponents of this provision believe that it enables the court to consider the unpaid efforts of primary caretakers, whose responsibilities may inhibit their ability to earn income in the workforce and who may lack the resources required to hire outside help. However, other members of the group are concerned that this provision could be read to require a judge to consider the post-divorce arrangements for care of someone other than a minor child. In their view, this would greatly expand post-divorce familial responsibilities to over-age children and elderly parents in a way that is not supported by case law. Some recommended modifying the provision so that it is clearly applicable only to care provided during the course of the marriage.

(3) The temporary maintenance guidelines require consideration of “the need to pay for exceptional additional expenses for the child/children, including but not limited to, schooling, day care and medical treatment”. Proponents of this provision believe that, because educational expenses are discretionary and not often ordered as part of a divorce settlement or judgment for low to middle income families, this provision enables the court to consider the contributions to education made by the primary caretaker when calculating maintenance. Opponents believe it is duplicative of considerations already in place under the CSSA and, should such a provision remain, it should be amended to provide that when these expenses are no longer necessary, maintenance shall be recalculated. Further, we recommend that the calculation of temporary maintenance be made before child support is calculated and that temporary maintenance be included as part of the payee’s income.

Sunday, October 30, 2011

Criminal Law Q&A

Question: How can I qualify for a wet and reckless driving charge instead of a DUI?
Question Detail: I was driving home from a birthday party, and was feeling sober. I was pulled over for speeding, and I got a DUI. My BAC was around 0.09. How can I qualify for a wet and reckless? I have a good record besides this.

Answer:  Unfortunately, in New York State, a plea bargain for a conviction of "wet reckless" (reckless driving involving alcohol) is barred by statute under New York State Law. 

Question: Do I need to turn myself in to the police?
Question Detail: Hit and run at fault. Police report filed. I have not turned myself in yet - wondering if I should.

Answer:  You should first contact a criminal defense attorney and ask him to accompany you to turn yourself in.  There is probably a warrant issued for your arrest, and the longer that you wait, the worse the consequences may be. 

Question: Can you get a DUI if your blood alcohol content is less than the legal limit?
Question Detail: My son informed me that he was pulled over on Tuesday night and got a drunk driving charge. He was with his friend in the car and they were driving on their way home. My son still lives with us. He says that the officer gave him the field test and he passed and that he passed the breathalyzer too but that they still gave him the DUI? Is this possible?

Answer:  If the officer doesn't have the results of a breathalizer, then it will be difficult for the officer to prove the case in court.  Without the breathalyzer, then all the police officer can go on is his observations, which by themselves are not enough to prove DUI. 

Your son should have been given some appearance ticket if he was charged with DUI.  Ask him to show it to you so you can see what the actual charge is.  Please feel free to contact me directly at any point if you wish to know more, and you find the specific charge he received. 

Child Custody and Child Visitation Issues in New York

Question: How do I get custody of my child?
Question Detail: My son is almost 9 months old now. His father has not been in his life, and can't support him financially even though we are still married. He has only seen my son a handful of times, and not once has bought anything for him. He has told me on many occasions that he wants to sign his rights over, however now he won't. How do I get custody of my child? We are not divorced and I am considering that too.

You must file in your local family court for legal sole custody of your child.  You can see what information is needed here:  http://www.nycourts.gov/forms/familycourt/pdfs/GF-17.pdf

Here are some FAQs regarding the petition for custody:

Who May File a Petition for an Order of Custody?
A parent, grandparent or a person with a substantial connection or relationship with the child may file a petition in Family Court requesting that the court place the child in his or her custody. A copy of the petition and a summons must be served upon (delivered personally to) the person or parties who presently have custody of the child. If the child's parents are separated and one parent seeks a custody order, that parent must have the papers served upon the other parent. If a non-parent is seeking custody of the child, then both of the child's parents must be served.
There are no filing fees in Family Court.

What Happens at the Hearing?
If the parties agree about custody of the child, the judge may take testimony from both parties and enter an order of custody on consent, without the need for a formal hearing. If the parties cannot reach an agreement about custody, the court will hold a hearing, taking testimony from both sides, and may appoint a lawyer to represent the child. The court may order an investigation and report from a social services agency or mental health professional. After considering the evidence presented, the court will award custody based upon what is in the child's best interests.
In some counties in New York City, a custody or visitation case may be heard by a Family Court "court attorney-referee", who may hear and decide the case and issue orders.

What Happens If One Side Interferes with the Custody or Visitation That Was Ordered by the Court? If a court order gives certain custody or visitation rights to a party and the other party fails to obey the order, the complaining party may file a petition alleging a violation of the order. After the court holds a hearing, the judge may change the order and/or impose sanctions on the party who has failed to comply with the order.

Are there ways to settle custody/visitation cases without going to trial? When you come to court about custody or visitation with your child, you may have a choice: whether to litigate your case before a judge (or referee) or to have your case referred to mediation.
Mediation is a free, voluntary and confidential process where you and the other parent work with a neutral mediator to create your own parenting plan.

Question: What can I do legally to prevent my son from being in the custody of his father?
Question Detail: My son will be 3 years old in October. His father is not paying child support and has never has. He would like to keep him overnight. I don't want my son together with him as he is on drugs, he has to take pills for his anger and even his dog has died his abuse. What can I do?

Answer:   You need to apply in Family Court for a formal order awarding child custody to yourself, and an order limiting visitation to daytime visits and at a public location.  Until you get the order, there's nothing you can do to prevent him from spending time with your son.

Question: What are my chances as a father of getting custody of my kids during a divorce?
Question Detail: What's the likelihood in the event of a divorce, that I'd get custody of my kids' from my wife? I cook, clean, do homework, completely involved with their entire academic life, make sure the kids' get to and from their extracurricular activities. All of that while working. I just became employed after 2-1/2 years of being out of work, but performed ALL the same duties and responsibilities while working since we've been married with both kids.

Answer:  To be awarded full custody of your children you would have to show that it would be in the best interests of the children to live with you and have you as the sole parent in charge of custody.  If your wife isn't doing anything that would be dangerous or not in the best interests of your children, then the court will probably not take custody away from her.  However, going on what you have stated here, you at least have grounds to try and get shared custody of the children, meaning that their time would be split between you and your wife. 

Bankruptcy Q&A - New York State Exemptions

Question: What assets will be affected if I file for bankruptcy?
Question Detail: What assests will be affected if I file for bankruptcy?

 The assets that are affected depend on whether you're filing for Chapter 7 or Chapter 13 Bankruptcy, how much debt you owe, and the value of all your assets.  Below are the exemptions for each asset when you file for Bankruptcy:

No Asset Details Amount Authority
1 Cash, Exemption Includes: cash, bank accounts, saving bonds and tax refunds $5,000 - Only available if not using Homestead Exemption. Also, this exemption will be reduced if using more than $5,000 of Personal Property Exemption or if exempting an annuity that was purchased within the past 6 months. N.Y. Debt. and Cred. Law § 283 (2)
2 Cemetery Exemption Land, set apart as a family or private burying ground, is exempt upon the following conditions only: 1. a portion of it must have been actually used for that purpose; 2. it must not exceed in extent one-fourth of an acre; and 3. it must not contain any building or structure, except one or more vaults or other places of deposit for the dead, or mortuary monuments Exempt N.Y. Civ. Prac. Law § 5206 (f)
3 Crime Victim Award An award under a crime victim's reparation law Exempt N.Y. Debt. and Cred. Law § 282 (3) (i) N.Y. Exec. Law § 632
4 Future Earnings A payment in compensation of loss of future earnings of the debtor or an individual of whom the debtor is or was a dependent. To the extent reasonably necessary for the support of the debtor & any dependent of the debtor. N.Y. Civ. Prac. Law § 5205 (h) (1)
5 Health Aids: Medical and Dental accessories   Exempt N.Y. Civ. Prac. Law § 5205 (h) (1)
6 Health Aids: Guide, service or hearing dog   Exempt N.Y. Civ. Prac. Law § 5205 (h) (2)
7 Homestead Exemption Home, co-op, condo or mobile home $150,000 for the following counties: Richmond, Kings, Queens, New York, Bronx, Nassau, Suffolk, Westchester, Rockland and Putnam $125,000 for the following counties: Dutchess, Orange, Ulster, Columbia , Albany and Saratoga $75,000 for all other counties. N.Y. Civ. Prac. Law § 5206 (a)
8 Insurance: Annuity The use of this exemption may limit your cash and personal property exemptions. Exempt unless a court finds a portion of such payments are not necessary to meet the debtor's ordinary financial needs. Annuities purchased within 6 months of filing are limited to $10,000. N.Y. Ins. Law § 3212 N.Y. Debt. and Cred. Law § 283 (1)
9 Insurance: Disability Insurance   Exempt N.Y. Ins. Law § 3212 (c) N.Y. Debt. and Cred. Law § 282 (2) (c)
10 Insurance: Life Insurance Proceeds from a life insurance policy Exempt N.Y. Ins. Law § 3212 (b) N.Y. Debt. and Cred. Law § 282 (2) (e)
11 Matrimonial awards Payments pursuant to an award in a matrimonial action, for the support of a wife, where the wife is the judgment debtor, or for the support of a child, where the child is the judgment debtor. Exempt to the extent reasonably necessary for the support of the debtor and any dependent of the debtor. N.Y. Civ. Prac. Law § 5205(d) (3) N.Y. Debt. and Cred. Law § 282 (2) (d)
12 Motor Vehicle 1 per debtor ($4,000 limit) If motor vehicle has been equipped for use by a disabled debtor then the limit is $10,000) N.Y. Debt. and Cred. Law § 282 (1)
13 New York State College Choice Tuition Savings Program Trust Fund Funds in an account created pursuant to article fourteen-A of the education law are exempt from application to the satisfaction of a money judgment as follows: 100% of monies in an account established in connection with a scholarship 100% of monies in an account is exempt where the judgment debtor is the account owner and designated beneficiary of such account and is a minor An amount not exceeding $10,000 in an account, or in the aggregate for more than one account, is exempt where the judgment debtor is the account owner. N.Y. Civ. Prac. Law § 5205(j)
14 Partnership Property of a partnership Exempt N.Y. Partnership Law §5 1 (c)
15 Personal Injury Payment on account of personal bodily injury. $7,500 (does not include pain and suffering or compensation for actual pecuniary loss) N.Y. Debt. and Cred. Law § 282 (3) (iii)
16 Pension and Retirement Benefits Payments under a stock bonus, pension plan such as 401 (k), 403 (b) or other ERSIA approved plan, IRA, profit sharing or similar plan are exempt. To the extent reasonably necessary to support debtor and dependents unless the plan was established by the debtor or an insider that employed the debtor. N.Y. Debt. and Cred. Law § 282(2)(e) N.Y. Civ. Prac. Law § 5205(c) N.Y. Ins. Law § 4607
17 Personal Property Stoves and heating equipment with fuel for 120 days sewing machine books, photos and family portraits ( $500 limit) seat or pew at place of public worship domestic animals and food for 120 days ($1,000 limit) wearing apparel, household furniture, refrigerator, radio, television, computer, cell phone, crockery, tableware, cooking utensils, health aids wedding ring, watch, jewelry and art ($1,000 limit) tools of trade ($3,000 limit). If no homestead exemption is claimed, then $1,000 in personal property, bank account or cash. This exemption is only available if not using the Homestead Exemption. The aggregate value of assets allowed to be exempt under this section is limited to $10,000. Also, this exemption will be reduced if exempting an annuity that was purchased within the past 6 months. N.Y. Civ. Prac. Law § 5205(a ) (1-9)
18 Public Assistance   Exempt N.Y. Debt. and Cred. Law § 282 (2) (a) N.Y.Soc. Serv. Law §137
19 Security Deposits   Exempt N.Y. Civ. Prac. Law § 5205(g)
20 Social Security   Exempt N.Y. Debt. and Cred. Law § 282 (2) (a)
21 Trust   Exempt N.Y. Civ. Prac. Law § 5205(c)
22 Trust Fund Income 90% 90% N.Y. Civ. Prac. Law § 5205(d) (1)
23 Unemployment Compensation   Exempt N.Y. Civ. Prac. Law § 5205(a) (7) N.Y. Lab. Law § 595 N.Y. Debt. and Cred. Law § 282 (2) (a)
24 Unpaid milk proceeds   90% N.Y. Civ. Prac. Law § 5205(d) (2)
25 Veterans' Benefits   Exempt N.Y. Debt. and Cred. Law § 282 (2) (b)
26 Wages Earnings received within 60 days or any time after income execution by Sheriff 90% of the earnings for his personal services N.Y. Civ. Prac. Law § 5205(d) N.Y.Soc. Serv. Law §137-a
27 Wages: Armed Forces   Exempt N.Y. Civ. Prac. Law § 5205(a) (9)
28 Wild Card for personal property, bank accounts or cash if no homestead exemption is claimed $1,000 N.Y. Civ. Prac. Law § 5205(a) (9)
29 Workers' Compensation   Exempt N.Y. Debt. and Cred. Law § 282 (2) (c)
30 Wrongful Death Payment on account of the wrongful death of an individual of whom the debtor was a dependent. To the extent reasonably necessary for the support of the debtor and any dependent of the debtor N.Y. Debt. and Cred. Law § 282 (3) (ii)

Sunday, October 2, 2011

Top 5 Things to do for Free to Start Your Own Law Firm

As I have written in a previous post, it is much easier than you think to start your own Law Firm.  But there are 5 things you can do right off the bat for FREE to actually get yourself out there and really get your firm going.  So in no particular order:

5.  Business Cards. 

Every professional has one, even in this new technological age.  Having a business card accomplishes so much more than simply having your name on something.  First of all, it gives you something to hand out to every person you meet.  Whether it is another attorney, a friend, family member, neighbor, or just someone who may know someone who may need an attorney, it gives all your contact information out and in a form that you can easily pass on when you are not sitting in front of your computer.  And you know what happens when you have a client who was happy with the job you did?  They now have all your information to hand out to people they know and recommend your services. 

And the best thing is?  Getting really nice business cards costs so little to get made considering how necessary it is to have them.  I got double sided lamented business cards made at Vistaprint along with several sheets of address labels for my law firm for a total of $52.76.  Vistaprint even has deals for 250 FREE business cards not including shipping and handling.  Still a law student?  Get a business card to hand out at networking events.  Just get a business card to help market yourself, and get it now.

4.  Get Listed

 One of the first things I did when I started my firm, was just get myself out there wherever possible and for as little as possible.  There are so many sites for lawyer listings that are FREE and allow you to get visible on the internet.  You can see just some of the places I have been able to get listed on my website where I listed just a handful of websites I have created a profile on.  Just by getting myself listed on these websites, my firm now comes up listed on page after page in a Google Search.  As I have listed on my links page, these are some of my top recommendations for getting yourself listed:

Avvo - Attorney profiles and client ratings.  They also have a section that allows you to answer client legal questions which sometimes has the benefit of having that client hire you. 

JdSupra - This site is fantastic for both getting articles and documents you write out there, and to see what other attorneys in your practice area are writing about. 

RocketLawyer - This site is fast becoming the new trend in legal representation.  It allows clients to find you easily by your practice area and location, in addition to becoming a "Lawyer On Call" and finding clients fast. 

Nolo - The famous do-it-yourself publisher is becoming a go-to source for clients and now with their connection to ExpertHub, they can direct clients to you from hundreds of websites. 

3.  Get a website

You need a website.  Simple as that.  You need some website to list on your business cards, and somewhere to direct clients from all those other profiles I listed above.  It gives you legitimacy and it gives you exposure.  But you really don't have to spend thousands of dollars nor be an expert in website creation or Javascript.  For as little as $0.00 you can get something started on a site like Wordpress which makes it so amazingly easy to get something up and going.  I had my website created by LexisNexis, which also included listings and call tracking through Lawyers.com and through Martindale.  This cost a little bit more to do, but it still worth every penny. 

2.  Meet People

You need to just get out of your apartment already and meet people.  Join your local bar associations which often times have cheap or free lawyer networking events.  They also have committee meetings every so often in your practice area where you can connect and potentially get client referrals from those you meet.  And you know what?  All these Bar associations usually have discounted rates for those:  1) right out of law school, only been practicing a few years, or just have their own solo practice.  I took a different route:  I moonlighted as a bartender on Wall Street

If you have always been extroverted this part will be easy.  If you have always been introverted, now is the time to break out of your shell and learn how to market yourself to everyone you meet.  You need people to leave a conversation with such a good impression of you, that they want to pass your information (through your business card) to someone who could use your services.   

1.  Write

You know what you are reading right now?  You're reading what I have been doing for #1.  If you are an attorney, chances are there are areas of law practice you have knowledge on, or simply some area you like to write about.  Well start writing.  Get a blog or just start writing articles and submitting them to sites like JdSupra and get yourself out there.  When people in the legal community start seeing your name pop up over and over again in reference to areas of law or some law practice subject matter, they start noticing you and what you have to say.  Whether you write for other lawyers, or you write for potential clients, the simple fact that you are willing to put in some time and effort to write shows you have the energy and intelligence to represent clients.  Writing costs nothing but time, and yet that time really can be used quite effectively.  Just start writing, and see what comes of it. 

So add all that up:  it is possible to do everything I have listed above FOR FREE.   These are 5 things that can make a huge difference in being able to get your own solo firm up and running when you may not have much money to invest.  If only have $100.00 total to invest you can get your own website domain and those nice double sides business cards for less than $100.00.  Regardless, just start getting it done and hang that shingle without going broke in the process!


Seth D. Schraier Esq., Attorney at Law
Law Office of Seth D. Schraier
3647 Broadway Suite 4G | New York, New York 10031
Tel: (914) 907-8632 | Fax: (212) 368-0991
SethSchraier@gmail.com | www.SchraierLaw.com
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Wednesday, September 28, 2011

Is it Time to File for Bankruptcy?

I have had a number of people ask me if they can just file for bankruptcy a-nd remove all their debt worry free.  But before you consider the implications of having bankruptcy granted, it is even more important to see if Bankruptcy is even an option for you.

The Tampa Bay Bankruptcy Blog recently posted an article asking this question and can be found here:

Is Bankruptcy an Option for You?

They provide a good step by step checklist to see if you should proceed with Bankruptcy, including:


- Firstly, review if your debts exceed (or are starting to exceed) your assets.

This means actually sitting down with all your bills, financial statements, past income tax filings, and drawing a big picture.  As part of my service as a Bankruptcy Lawyer, I help put this picture together, and get a long term picture of what kind of debt you are dealing with.  But, as the article points out, the kind of debt you have is also important.  For example, as I wrote in a previous blog post, there are only very limited ways you can get student loans discharged through bankruptcy.  If you are sitting with a pile of credit card bills, however, this debt can usually be discharged.

- Secondly, if you have already tried other means of settling your debts without success, then you should think about the bankruptcy option.

A lot of times there are ways to limit your debt, such as trying to come to a settlement with a credit card company, or working with a credit counseling company (by the way, prior to filing for bankruptcy, every person is required to meet with a credit counseling company to see what options are possible - therefore it should be something you do whether or not you are dead set on filing for bankruptcy.

- Thirdly, look at what your creditors have been doing to pursue their dues.

The way creditors can try and recover debt that is owed to them covers the gambit from a simply courtesy letter that you have not paid off your balance to the other extreme of filing a lawsuit against you, and attempting to garnish your wages to pay off the debt.  The stage that creditors are at to collect what you owe them is certainly something you should take into consideration.  If it has reached the point that you have several credit company threatening to file a lawsuit to recover the debt, it may be time to move forward with bankruptcy.

Wednesday, September 14, 2011

Same Sex Marriage and DOMA - Immigration and Divorce Issues

As same sex marriage continues to progress in the United States there are a number of issues and conflicts that have arisen as the rights conferred by the state come into conflict with those that still do not exist on the federal level thanks to the Defense of Marriage Act (DOMA).  This article will examine some of the benefits and issues that arise when a state legalizes same sex marriage, looking at New York as the basis.

First, for those that are not aware, DOMA is the federal law passed by Congress in 1996 that specifically defines marriage as that between one man and one woman for all federal laws, programs, and benefits.  DOMA does not make same sex marriage illegal across the country, but instead states that federal government will not recognize any marriage between those of the same sex for federal purposes.  Additionally, DOMA also states that no state is required to recognize a valid same sex marriage performed in another state as they are required to do for marriages between a man and a woman.

This has a number of consequences for same sex couples that wish to get married that I will address below:

Immigration

One of the biggest issues that affects a same sex couple where one of the members are not a United States Permanent Resident, is that any legal same sex marriage performed cannot be the basis for a Green Card, as it can be with a non-same sex couple marriage.  Therefore, those couples thinking that they can travel to a legal same-sex marriage state, get married, and then apply for a VISA, will be unable to use the marriage as a basis for obtaining the Green Card. This is not to say that those in a same-sex marriage will be barred from obtaining a Green Card, but simply that marriage cannot be the basis.

There are still other channels that homosexual immigrants can use to obtain permanent residence.  The first is a work based visa. If the immigrant is in a field where their job skills are in demand, they may be able to find an employer who will sponsor a temporary work permit.


The second option is Political asylum. Under this case, the immigrant must be able to prove that they have undergone persecution in their native country because of their sexual preferences. This persecution does not necessarily have to be from the government but can also be from other citizens of their native country.  The main basis here has been that the government of their native country has done nothing to protect them from violence based on their sexual orientation.

There are a few other ways to get a Green Card besides the above, but they are very specific and limited in nature.  You can find them listed here at the U.S. Citizenship and Immigration Services Website.  

Divorce

So what happens to that couple that comes to New York from one of the 41 other states that does not recognize same-sex marriage in order to marry, and then wants a divorce?  What if the basis of the marriage was to try and obtain legal residence for one of the spouses, but they find themselves unable to do so because they did not consult an attorney first?  Well firstly, most of these states, because they do not recognize the same-sex marriage as being legal, will not perform a legal divorce in that state.  But to make matters worse, states such as New York have a 1 year residency requirement prior to filing for divorce.  This means that 1 of the spouses has to reside in New York State for 1 year prior to filing for divorce.  But often times, it is difficult to impossible for a spouse to leave everything they have and move to another state for a year.

Same-sex couples that do not investigate this issue before hand, may find that they are legally married in New York, residing in Florida, unable to file for divorce in Florida as Florida does not recognize the marriage, and financially unable to move to New York.  They become stuck legally married in one state, with little means to obtain a legal divorce, and find that they must remain in limbo for years to come. 

Conclusion

This article just lightly touches on the issues of immigration and divorce in the same-sex marriage and DOMA context.  However, there are still signs that there may be large changes to recognition of DOMA nationwide.  Attorney General Eric Holder released a memo in February 2011 that stated:

"After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases."

If these challenges to DOMA make it to the Supreme Court, there is a chance the Supreme Court will find DOMA unconstitutional, or that political pressure will finally convince Congress to overturn DOMA.  Until then, many same sex couples should at least inform themselves on what their rights will be if they do wish to pursue marriage in a state that allows same sex marriage. 


Seth D. Schraier Esq., Attorney at Law
Law Office of Seth D. Schraier
3647 Broadway Suite 4G | New York, New York 10031
Tel: (914) 907-8632 | Fax: (212) 368-0991
SethSchraier@gmail.com | www.SchraierLaw.com
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Monday, September 12, 2011

Going Solo - Why You Need Not Be Afraid

I had the pleasure this week of attending my first Lawyers Connect event at the New York City Bar, and it really was the first time I was out and about talking with other attorneys or recent law grads about where I've come from and how I've moved my solo practice along.  And the one thing a lot of recent law grads asked me was:  weren't you scared?  And to be honest, I never really thought about it, because if you really do love the practice of law, which I do, then you'll do anything to get back into a court room and practice. 

I know many others have done this, but I wanted to do a little FAQ about what I needed to do to get a solo practice going.

How do I even begin to start a firm?

Now, although there are a bunch of side things to worry about (malpractice insurance, New York State DOS filings, taxes, etc.), ultimately you don't actually need to do anything to start a firm, but simply be a sworn attorney admitted to the bar in the state they want to practice law.  In terms of everything else - office, staff, advertising, law library, or company car - none of these are needed to actually start your firm. 

If a client or family/friend says to you "I need a lawyer for something" then you need only say "ok, tell me more" and you have a firm going.  You're not having the case given to you by a superior.  You're not getting this client because they're on retainer with the firm.  They came to you because they need a lawyer, and you just may be able to help them.  Now, go figure out what they need to have done and do it, and bam - you have a case under your belt as a solo attorney.  

Don't I need a lot of money to get a whole firm going?

Does money help build it faster?  Of course.  Will it help generate leads and advertising on a larger level?  It can't hurt.  But, is having a large amount of money saved up a prerequisite to starting a firm?  Not at all.  One of the first cases I took as a solo practitioner was a DWI case.  My client essentially just needed me to represent him in court for the hearings.  If he needed to contact me he called my personal cell phone.  If he needed to e-mail me, I had my personal e-mail address.  I didn't need any law books to read - everything I needed was available in some online database, whether it was through FindLaw or NYSBA or through NOLO.  But I didn't have to spend one penny to get this client, nor spend anything beyond transportation costs to help win his case.  Neither do you.

Well how much DO I have to invest to get something going?

You can get Lawyers.com to build you a website and list you on their directory for $300 a month.  Once you get that website going, you can then figure out how much you have to spend left over each month and how much you need to invest.  Sites such as JDSupra and Nolo are great for the next steps - trend reports, client referrals, document sharing, etc.  You can also get tips and hints from other solo/small firm lawyers at sites such as Lawyerist.  After my website was created, I have bookmarked pretty much every single site, both legally focused and social media/marketing focused that I've used to help grow my firm.  You can find them all bookmarked on my Delicious account.

I didn't have a concentration in law school, so what areas should I concentrate on?

Nobody really has a "concentration" in law school.  And most of what you learned in law school school was more applicable to answering long questions on the Bar exam than that client who just asked you to do their Bankruptcy case, where you have no idea how to do a Bankruptcy.  But think back to your internships / clerkships / prior jobs, and think about how much you knew about what you were doing before you started doing it.  Usually....none, right?   We learn best by just "doing."  You know how you learn how to do a Bankruptcy without having taken a Bankruptcy course?  You go to the US Bankruptcy Courts page, you read the instruction booklet, and you start filling out the documents.  Need to do a divorce?  Everything you need to know and how to do it you can find online

The fact is, you'll never learn it better than by doing it yourself, and once you do it yourself, you'll be that much more "seasoned" on the topic and ready for the next divorce or bankruptcy client to contact you. 

That's not too bad.

No, it's not too bad at all.  So, for those attorneys who are:

- Unemployed.
- Underemployed.
- Not happy working in a big firm.
- Ready to take charge and do things on their own.

Then you're all set to start your own solo practice.  See, there's no reason to be scared.