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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.