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.
Sunday, October 30, 2011
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.
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:
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!
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
Tel: (914) 907-8632 | Fax: (212) 368-0991
SethSchraier@gmail.com | www.SchraierLaw.com
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.
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:
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.
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
Tel: (914) 907-8632 | Fax: (212) 368-0991
SethSchraier@gmail.com | www.SchraierLaw.com
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