Wednesday, November 16, 2011

Same sex marriage equality and Defense of Marriage, Matrimonial Attorney, Brooklyn, NY

I am a Brooklyn, New York City Matrimonial Lawyer.  1-718-864-2011.  A number of my  LGBT clients currently in  same sex relationships ask me this question, now that I can get married in New York, will I have equal protection under the law?

MARRIAGE EQUALITY ACT VERSUS DEFENSE OF MARRIAGE ACT

Off the top I explain to them that although New York performs and recognizes same sex marriages, there are many other states that don’t and the Federal Defense of Marriage Act does not force these states to recognize marriages performed in other states. In other words, the DOMA says that non recognizing states do not have to offer full faith and credit to states the do perform and/or recognize same sex marriages (there are some states that recognize but will not perform same sex   marriages).

The  Marriage Equality Act states that the same laws that apply to Husband and Wife now apply to same sex spouses. A small exception is that the clergy in New York does not have to perform a same sex marriage. Thus same sex couples that are married will now have the same rights and obligations in New York that Husband and Wife will have.

A spouse married in New York has many rights.  First of all, a spouse married in New York cannot be disinherited by the other spouse.  A surviving spouse has the  right of election if not included in the other spouses will. Secondly a spouse in New York has a right to the health care insurance of the other spouse.  Thus in the event of a divorce or the death of the other spouse, the spouse without insurance will have the right to be covered under  COBRA for up to three years. Thirdly, married couples have the right to hold property as “tenants by the entirety.”  This means that the married couple holds the property as an undivided whole and when the other spouse dies, the living spouse house a "right of survivorship," the right to the entire property undivided. Fourthly, a spouse has the right to make health care decisions for the other spouse. Finally a spouse cannot be forced to testify against another spouse in court, this is called the spousal privilege.

Spouses also have a number of obligations as well.  Most importantly a spouse has the duty to support the other spouse.  This is accomplished through the maintenance laws of this state.  Joint marital debts can be collected against both spouses as well.

Despite the rights of spouses in New York mentioned above, the Defense of Marriage Act effectively limits the “bundle of rights” that same sex couples.  If a same sex couple decides to move to another state that does not recognize same sex marriage, they could face a number of legal challenges. Also even if this couple stays in New York State they will also have many issues. First of all, and a huge issue with same sex marriages is that same sex couples are not treated the same under the United States tax Code as married couples because Federal Law does not recognize same sex marriage.  A same sex spouse of a Federal Employee will not be able to benefit from health insurance and pension rights in the same manor of a heterosexual couple. A same sex spouse will not be able to take off work to take care of a sick spouse under the Family and Medical Leave Act.  Heterosexual couples have this right.  A same sex spouse cannot petition for Immigration benefits, such as Permanent Residence, for their spouse, a heterosexual couple can. A same sex spouse is not entitled to military benefits.  Finally, married couples can make property transfers to each other without having to worry about the Federal Estate tax because of the marital deduction. Same sex couples do not have the marriage deduction because Federal Law under the Defense of Marriage Act does not recognize them as married.

One way around the may DOMA problems that arise from same sex marriages is a prenuptial agreement for same sex couples.  If you decide to do a prenuptial agreement it is very important that you each party has his or her own attorney and that both couples are given full financial disclosure.  Full financial disclosure means that your spouse should tell you everything about their financial situation, what they are walking into the marriage with. If you plan to move out of state, although the Marriage Equality Act will enforce your agreement in the state other states might refuse to enforce it if the consideration (or the quid pro quo) for the agreement was the marriage.  For example, in exchange for marrying me, I agree to pay you maintenance in a certain amount if we break up.  In a state that does not recognize same sex marriage this might not be seen as valid consideration. Therefore, it might be wise to entitle the agreement, a Cohabitation Agreement. Furthermore, a prenuptial agreement might help resolve some of the tax issues that might arise regarding property transfers.  For example, if Jim and John decide to get a divorce, and John agrees to give to Jim a house settling the equitable distribution issues surrounding the marriage, then Jim and John, unlike hetero sexual married couples will face tax consequences.  A prenuptial agreement can be used creatively to avoid tax consequences. For example, instead of property transfer, John could agree to keep the house in his name but pay the mortgage for Jim to keep him in the property. This is not a perfect solution and the repealing of DOMA would be the only way to ensure that heterosexual and LGBT couples are treated equally under the tax code.

Another problem arises with custody and visitation issues. If a same sex LGBT  married couple decides to have a baby (let’s call this couple Jane and Joan) and Jane gets artificial insemination.  Jane will be considered the biological parent.  Joan under New York’s Marriage Equality Act will be recognized as the parent of the child and would be able to assert the same rights that a heterosexual couple would be able to assert.  If this couple moves to another state that upholds DOMA  then Joan may not be recognized as the parent and as such might have a problem seeking custody or visitation in the event of a break up or divorce. Because of this legal hurdle I would strongly recommend a second parent adoption to be done by Joan to protect her rights.

There are some other equitable distribution issues specific to same sex couples. For heterosexual spouses the transfer of assets is a non taxable event.  Under DOMA, same sex couples are essentially seen as strangers and a transfer of assets may be looked at as a third party sale.  Federal law also allows heterosexual couples roll over IRA’s and transfer retirement accounts via a Qualified Domestic Relations Order tax free. Same sex couples may face tax consequences at the Federal level if these assets are transferred because the government does not recognize same sex marriages.  The government may impose a gift tax on transfers exceeding $13000. Due to DOMA and without a good prenuptial agreement many same sex couples may have to opt to keeping their assets separate to avoid tax liability for transfers.

Furthermore, one of the obligations of a marriage is to provide support to the other spouse.  Thus, a monied spouse may be required to pay the less monied spouse maintenance.  For heterosexual couples, the person paying maintenance gets to make a tax deduction on their Federal taxes and the person receiving it will have to pay taxes on what is received.   For same sex couples, the person paying the maintenance does not get to make the deduction and to add insult to injury the person receiving it still has to claim it on their taxes.

Also a heterosexual spouse is entitled to receive social security benefits of the other spouse after ten years of marriage.  A same sex spouse will not have this right. 

As you can see many complex issues arise involving same sex marriage when the Defense of Marriage Act is applied. If you have any further questions about same sex marriage, please contact me, George M. Gilmer, Esq. and would be happy to answer your questions.

Monday, October 31, 2011

How do I file for or get a Divorce? Brooklyn, NYC Uncontested Divorce Attorney. Low Fees, Inexpensive, Great Service! No Fault, No signature required.1-718-864-2011

Many people are scared off by the possibility of getting a divorce because of the cost of retaining an attorney.  Even as lawyer, I certainly would feel uncomfortable paying thousands of dollars for a simple divorce, especially when no children or  property is involved. 

I perform simple uncontested, no fault divorces at fees that compete or are lower than some paralegal services.  I do not believe that simple divorces should cost big  money.   I am going to explain the divorce process below so you can understand the steps and make an informed decision prior to hiring an attorney or a paralegal service.  Also remember, that if you hire an attorney or even a  paralegal service, it is wise to hire someone that is familiar with the local procedures. For example a   Brooklyn, New York City attorney may be more familiar with the divorce practices in Brooklyn and the other four boroughs.

The first step is the decision in getting a divorce.  It is unfortunate but   50% of all marriages lead to divorce.  Why this happens is not the subject of this article.  This article will however help you determine whether your divorce will be contested or uncontested.

First of all, you should ask yourself, do you get along with your soon to be ex?  I know this may sound like a dumb question, “Why would I be getting a divorce if I got a long with my spouse,?” but under some cases, couple get along well enough to make the mutual decision that “enough is enough.” This is generally the case when no children or property is involved. Another scenario is when there has been a long term  separation, giving time for the wounds inflicted in the relationship to heal, couples are much more likely to sit down and work with each other.  Sometimes couples go through marriage   counseling and  mediation prior to making the decision.  These scenarios make it more likely that you will be able to get an uncontested divorce based upon the no fault grounds in New York City.

If there are domestic violence issues I strongly advise you to consult an attorney (and if you are in immediate danger, contact the police), prior to filing a divorce.  Your lawyer might advise you to file a   Family Offense Petition prior to or simultaneously with the filing of your divorce (via a procedure called    Pendente Lite).  If domestic violence exists I would advise you also to seek exclusive occupancy of the marital residence if your spouse still lives with you. I would recommend this because the filing of the divorce could escalate the abuse in the home. The procedure for obtaining an http://ppdsurvivor.blogspot.com/2010/06/today-i-dismissed-order-of-protection.html  Order of Protection in Family Court and Supreme Court will be discussed in another article.

You will get an uncontested divorce if there are no disagreements between you and your spouse over any financial or other divorce related issues like   marital property, custody, visitation or  maintenance.  Once you file your paper and serve your spouse with these papers your spouse will have certain amount of time to contest or fight the divorce.  If your spouse is fighting the divorce or you do not think you can get an agreement on any of the above issues you can contact me George M. Gilmer, Esq., a Brooklyn, New York City Divorce Attorney at 1-718-864-2011.

If there are issues involving child custody and support, spousal maintenance, equitable distribution, insurance, marital debts, and Orders of Protection, you may need the skill and expertise of an attorney.  If your divorce does not involve these issues,  you can choose to hire an attorney to do the paperwork for you but  you will not need to pay mega bucks for a divorce of this type.  I often charge between $750 and $850 total all fees included for an Uncontested No Fault Divorce with no children or property.

If you decide to represent yourself or hire a paralegal service to do your divorce work for you, buyer beware, because you may risk losing certain rights that are derived from the marital relationship that are not readily apparent to a person who is not an attorney.  For example, if your spouse has a pension and you do not seek it in your divorce proceeding you may lose your claim for it.  The same may hold true for any other assets not in your name but that could potentially be classified as marital property (like a house bought during the marriage but not put into your name).  Finally if you cannot locate your spouse,  then you may need to figure out an alternative mode of service of the legal documents.  Please see my blog on “how do I get a divorce if I cannot find my spouse.”

If you are filing for divorce, below is a list of papers that must be filed with your Uncontested Divorce Packet.  This list is pretty thorough but not completely exhaustive.

1. Summons with Notice
2. Verified Complaint
3. Affidavit of Service
4. Sworn Statement of Removal to the Barriers of Remarriage
5. Affirmation or Affidavit of Regularity
6. Affidavit of Plaintiff and Affidavit of Defendant
7. Child Support Worksheet
8. Support Collection Unit Information Sheet
9. Qualified Medical Child Support Order
10. Note of Issue Finding of Fact /Conclusions of Law
11. Judgment of Divorce
12. Part 130 Certification
13. Request for Judicial Intervention
14. Notice of Entry
15. Certificate of Dissolution

Filling out these forms can be stressful and time consuming.  If you don’t have the time or don’t want the stress, please call my office at 1-718-864-2011 if you want to set up a free phone consultation.  I can make the processing of your divorce go quickly and stress free.

George M. Gilmer, Esq. Brooklyn, New York City Uncontested No Fault Divorce Attorney.

Wednesday, October 26, 2011

Can I relocate with my children? Brooklyn Family Court Attorney and Matrimonial Lawyer. 1-718-864-2011

As a Custodial Parent can I relocate with my children out of state?

Imagine this scenario.  You are living with your child, have very poor economic circumstances and are offered a job out of state. The parent of your child(ren) is a good one, he or she visits with them quite frequently and plays a big role.  You want to move because of the opportunity that is offered to you and your family.  What will the court do?

In  Tropea v. Tropea, a New York decision, the Court decided that five factors must be determined before a person is granted that ability to relocate with their child. 

REASON FOR THE MOVE

The Court will first look at the parent’s reasons for seeking the move. Let’s assume here that you have hired a  lawyer. Your lawyer will argue that you have a new job and thus the move is necessary.   The non-custodial parent’s lawyer will question whether the type of job (i.e. pay scale)  you are moving to is one that cannot be obtained here in New York. 

QUALITY OF RELATIONSHIP BETWEEN   CUSTODIAL AND  NON CUSTODIAL PARENTS

Secondly the court will consider the quality of the relationship between the custodial and the non custodial parents.  If there is a poor relationship between the parents and it appears that the custodial parent would not make an effort to maintain the relationship between the child (or  alienate the child) and the non custodial parent after relocation, then the family court might may not allow the  relocation.  The attorney representing the non custodial parent would argue that the move would harm the child(ren) because parenting time with the child and the non custodial parent will decrease and in the custodial parent will not make best efforts to maintain your relationship with the child because of this poor relationship.

IMPACT THE MOVE WILL HAVE ON THE QUANTITYAND QUALITY OF FUTURE VISITS

 Thirdly, the court would look at the impact of the move on the quantity and quality if the child’s future visits with the non custodial parent. Here the custodial parent’s attorney might advise his or her client to offer to the non custodial father expansive visitation rights during times (this mainly involves school age children) that the child is on vacation, i.e. winter, spring and summer breaks. The attorney for the non custodial parent might say that this type of arrangement might be harmful to the child because the visits need to be more frequent and consistent.  I think that the court would agree with this opinion. 

DEGREE TO WHICH THE CUSTODIAL PARENT’S AND CHILD’S LIFE WILL BE ENHANCED

Fourthly the court is also required to look at the degree to which the custodial parent’s and child’s life will be enhanced, economically, emotionally and educationally by the move.  Here, let’s assume that there was  domestic violence in the home that the custodial parent and the child witnessed, perpetrated by the non custodial parent, that the job would give the custodial parent a significant pay increase and that the family is moving to a better school district.  Here the custodial parent’s attorney would argue that the move is justified because economically the family benefits from the pay increase, emotionally because they are away from an abusive household and educationally because they live in a better school district.

FEASIBILITY OF PRESERVING THE RELATIONSHIP

Finally the fifth and final factor is the feasibility of preserving the relationship between the custodial and non custodial parent and child through suitable visitation arrangements.  Here let’s assume that the custodial parent moved wants to move from New York to   Hawaii. Let’s also assume that the non- custodial parent works a minimum wage job and could hardly afford rent let alone plane tickets to Hawaii. Here, the non custodial parent’s attorney would agree that visitation between the child and he or she would be virtually impossible and thus it is very unfeasible that any suitable visitation arrangements can be made.

ROLE OF THE  ATTORNEY FOR THE CHILD

The attorney for the child represents the child and thus weighs in with the child’s opinion concerning the move. It is the attorney for the child’s job to consult and advise the child consistent with the child’s capacities and have thorough knowledge of the child’s circumstances. If child is able to be a knowing, voluntary and considered decision about relocation,  then child’s lawyer is supposed to advocate for this position even if she does not agree with the child.  If the child can’t make such a decision then the child’s lawyer can argue a position he or she believes is in the best interest of the child.

One final note. Relocation is a very complicated issue and courts do not look kindly on parents that just pick up and leave without either getting the other parent’s permission or court permission.

 If you have any further questions about relocation, please contact me, George M. Gilmer, Esq. a Brooklyn, New York City Family Court attorney.

Friday, October 21, 2011

How do I win my Custody Trial? By Brooklyn, New York City Family Court Lawyer

Many clients want to know how they can "win" their Family Court case.  I often tell my clients that there are often on clear winners in these papers.  Abraham Lincoln said "discsourage litigation, persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has a superior opportunity of being a good man.  There will still be business enough."

I am a firm believer that most cases can be settled so long as both sides have competant represenation that is familar with all of the issues involved in the case. Don't get me wrong, some case must go to trial, but I always encourage my clients to hear the other parent's fully before making a decision.

Some people are of the position that custody proceedings are corrosive to parents and toxic for chidren and that a custody case should not be tried.

Tuesday, October 18, 2011

Should I file for bankruptcy on a deficiency judgment? By Brooklyn Bankruptcy Attorney. 1-718-864-2011

Should I file for bankruptcy if my house was foreclosed on and there is a deficiency judgment against me in New York City? 1-718-864-2011

The answer to this question is maybe. The bank, even after a foreclosure sale occurs in New York State has to go through a certain procedure before obtaining a deficiency judgment against you.  Thus it might be wise to wait it out and see if the bank is actually going to pursue the money owed to it after your home was sold.

If you were unable to pay your mortgage due to job loss, Wall Street fluctuations or rise in interest rates and a foreclosure action takes away your home then the bank may be able collect on a deficiency judgment against you.

A deficiency judgment is a money judgment against a borrower whose home at a mortgage foreclosure sale did not sell for enough to pay the underlying loan on the property. Thus if the total amount due on your mortgage is $300,000 but your house only sells for $150,000 then a lender can seek a judgment against you for $150,000.

To reiterate a Defendant in a foreclosure action, if found to be liable for payment on a debt secured by a mortgage, and this Defendant has appeared and be personally served with the Summons, the Court has the ability to enter a  Judgment against this defendant on the debt remaining unsatisfied after a sale of the mortgaged property.

After the sale, the lender, within 90 days of the sale must make a motion to confirm the sale and simultaneously, after   Notice of Motion is given to the purchaser or his or her attorney, may also make a motion in the action for leave to confirm a deficiency judgment.  When this motion is heard, the court will determine the deficiency judgment amount by ascertaining the  fair market value of the property and deducting the total mortgage amount owed plus the amount owing on all prior liens and encumbrances with interest, plus costs and  disbursements  of  the  action  including  the  referee's  fee and disbursements. If no motion for deficiency judgment is made in the above referenced time period, then the lender will be prevented from collecting on the judgment.

Furthermore there is a difference between a deficiency judgment and a short sale. A short sale occurs when the lender, after negotiation between the lender and the property owner, takes the property back from the property owner as full payment of the loan.  Thus the loan is wiped out.  In some cases the owner may get an additional cash payment from the bank as an incentive to close the deal.

If the lender has followed proper procdeduresand haqs obtained a deficiency judgment then it would be a good idea to file for a bankruptcy. If you file for bankruptcy the bank, unless the bank has a legal basis for objecting to the discharge and you do not have any assets in the property of the bankruptcy estate, wlll not be able to collect on the debt.  A Chapter 7 bankruptcy will wipe out all of this debt and sihce the property has been sold, the debt is unsecured.

Please see my previous blogs on bankruptcy filings for more information.

If you have any further questions about deficiency judgments, bankruptcies or short sales, please contact me, George M. Gilmer, Esq., your Brooklyn, New York City Bankruptcy Lawyer for a free phone consultation.

Thursday, July 07, 2011

Vacate a Judgement against you by filing an Order to Show Cause. Stop wage garnishments or the sale of your property! By Brooklyn, NY Bankruptcy Attorney

My name is George M. Gilmer. I am a Brooklyn Debt Settlement Lawyer and Bankruptcy Attorney.  Has someone obtained a Judgment against you which has lead to your bank accounts being frozen or your wages being garnished? A judgment is the court's written, final decision in the case.  If this is the case, the law might be on your side and you might be able to reopen your case and even under some circumstances dismiss the matter against you. The ability to vacate a judgment against you is a powerful tool and can help you avoid a drastic measure such as Bankruptcy and can give you increased bargaining power in settling your debt by Stipulation.

Most of my clients come to me in desperation because their bank accounts have been frozen and they have discovered that a default judgment was entered against them in Court. When a defendant fails to appear in court ("defaults") the court will issue a judgment against the defendant.  Most of my clients ask me, “George, how could this happen? I was never served with any papers.”

Then I tell them the good news. I tell them that we can file either a Motion to Vacate or an Order to Show Cause seeking to vacate the judgment (both will be referred to as a “Motion” from here on) and also requesting the lifting of any restraints on bank accounts and wage garnishments. This generally means that the client’s money will be freed and that the weekly or bi weekly deductions will cease during the lifetime of the motion. The law that covers the vacating of most judgments in New York is CPLR 5015(a).  The party that has a Judgment against them can file the above mentioned Motions in the Court where the Judgment was obtained.  The court can relieve a party of a Judgment on numerous grounds. 

One of the grounds is excusable default.  This has to be done within one year of the service on you of the copy the notice of the judgment or within one year of the entry of the judgment. If you were not served with the copy of your judgment then your time to file the motion has not started.  You will have to show a reasonable excuse and meritorious defense to prevail in this motion, a present this in a document called an Affidavit of Merit.

A good example of a reasonable excuse is that you never received the papers telling you to come to court.  If you have been served with legal papers, you generally have twenty to thirty days to appear and put in an answer to the Summons and Complaint. If you don’t, you will be held in default. Another reasonable excuse maybe that you were sick, out of town, or incarcerated.  There are occasions when you receive a Summons, you call the Plaintiff attorney, and they tell you not to go to court, this may be seen as a reasonable excuse.

The meritorious defense is also a necessary element. The most obvious defense is that you don’t owe the money for some reason. This could be because of identity theft, you were never notified about the debt (nor provided validation of), the Statute of Limitation on your debt has run, a mistake by the person suing you in calculating the money owed, that you were only an authorized user on the credit card, that you filed for bankruptcy or that you never had a business relationship with the party in question.

Another defense that most be added to your motion to vacate is the general defense that the court did not have jurisdiction over you to enter the judgment against you in the first place.  This is CPLR(a)(4).  Here, a meritorious defense should not be required by the court (although some judges do, so it should be included nevertheless) and raises a Constitutional issue, Notice and Opportunity to be heard.

Whenever a motion is present where lack of service is alleged, the Plaintiff will have the burden to come with up with an Affidavit of service which serves as prima facie proof of service.  It is always wise to look at the copy of the Affidavit of Service prior to filing any motion to vacate, so the allegations contained in that Affidavit of Service can be scrutinized by you and your attorney and you can rebut the allegations in your Affidavit of Merit. Thus even if the Plaintiff presents an Affidavit of Service, if your moving papers successfully rebut the Affidavit of Service then you will be entitled to what is called a Traverse hearing, where your attorney will have the opportunity to cross examine the process server that filed the Affidavit.  There has been a great deal of litigation over service and there have been many case where service never took place, but affidavits of service were filed by the plaintiff nevertheless.  This is considered fraud and can lead to very serious consequences for the filer. 

Most importantly, the Plaintiff, if they can’t prove that service was ever effectuated, and 120 days have passed since the Summons and Complaint was filed, you can move to have the case dismissed for failure to serve within the proper timeframe.  This is huge if the Statute of Limitations has run on your case, because then, you cannot be sued again.  If the Statute of Limitations hasn’t run, then the Plaintiff will generally be allowed to refile.

The other less common ground used are CPLR 5015(a)(2), newly discovered evidence, if introduced at the trial,  would probably  have produced a different result and which could not have been discovered in time to move for a new trial.  The moving party needs to thus show a very good excuse for not presenting the evidence at the time of trial and there are not many excuses for failing to produce evidence at trial.

Another reason to reopen a judgment because it was obtained by fraud, misrepresentation, or other misconduct of the party that has the judgment.

Finally there are situations where, both sides can mutually agree to vacate a default by Stipulation. This is often used when the sides have negotiated a settlement of the debt owed.  The vacating of a Judgment after it was entered is an important device used to clean someone’s credit of derogatory information.  My advice is, if you want to settle your debt with say, a credit card company, it is advisable before you make payment, to get an agreement from the company to vacate the judgment by Stipulation so that the derogatory information on your credit report is removed.

In conclusion, if you have a judgment against you, your bank account is frozen and your wages have been garnished you can file an Order to Show Cause in the Court that has the Judgment against hyou to attempt to Reopen or even dismiss the judgment against you. The mere filing of the Order to Show Cause or Motion to Vacate will increase your bargaining power in negotiating the settlement of your debt.

Friday, July 01, 2011

New York passes Same Sex Marriage Equality Act of 2011. By Brooklyn, New York LGBT Family Law and Matrimonial Attorney.

On June 24, 2011 Governor Andrew Cuomo signed into law the right of same sex couples to get marriage licenses. The law will go into effect on July 24, 2011. New York will be the sixth and the most populous state (19.4 million residents) to do so. Iowa, Vermont, New Hampshire, Massachusetts and Connecticut issue marriage licenses to same-sex couples, as does the District of Columbia.

Many believe that the passing of the law gives momentum to ending marriage discrimination at the state and federal level. Prior to the passing of the law most New York City employers already offered equal benefits to couples in domestic partnerships. Many see the federal recognition of same sex marriage as an uphill battle. Matter of fact in 2006, the New York Court of Appeals ruled that there is no constitutional right to same-sex marriage in New York. Some opponents of same sex marriage support a U.S. constitutional amendment defining marriage as between a man and a woman.  Matter of fact, gay marriage is banned in 39 states in this country.

Another complicated legal issue is the legal rights New York same sex couples are afforded in states that do not recognize same sex marriage. Two constitutional principles arise, full faith and credit and equal protection. The Full Faith and Credit Clause—Article IV, Section 1, of the U.S. Constitution—provides that the various states must recognize legislative acts, public records, and judicial decisions of the other states within the United States.Although the Full Faith and Credit Clause has been applied to family issues such as Order of Protection, the Violence Against Woman’s Act, and child support it is unlikely, unless the Supreme Court strikes down all laws banning gay marriage, that States are going to be required under Full Faith and Credit to recognize any marriage they don’t want to.  Presumably states that don’t recognize gay marriage will be expected to recognize gay marriage pursuant to the equal protection clause.

It is clear that most of the opponents of gay marriage based this opposition upon moral or religious grounds. As a way to balance the various interests involved, an agreement was reached on more protections for religious groups that oppose gay marriage and fear discrimination lawsuits.

The Law Office of George M. Gilmer drafts prenuptial agreements (“prenup”), cohabitation agreements and practices matrimonial law. Please stay tuned for future articles in these areas.  I have over ten years of legal experience.  Contact me if you have any other questions concerning same sex marriage.

Friday, June 24, 2011

Frequently Asked Bankruptcy Questions by Brooklyn, New York Bankruptcy Lawyer

My name is George M. Gilmer, Esq. I am a Brooklyn Bankruptcy and Debt Relief Lawyer.  For you perusal,  I am posting some Frequently Asked Questions regarding Bankruptrcy filings. 

BANKRUPTCY QUESTIONS:

1.         What is Bankruptcy?

Bankruptcy is the legally declared inability of a debtor (person/company that owes money) to pay their creditors (person/companies that lend money).

In the United States, there are 6 types of Bankruptcy under the Bankruptcy Code (covered under Title 11 of the United States Code), however the most common 3 forms of bankruptcy are Chapters 7, 11, and 13.  They are as described follows:

Chapter 7 -  Basic Liquidation for Individuals and Businesses.  Also known as straight bankruptcy, this is the most common, quickest and most straight forward form of Bankruptcy.  Allows for individuals or businesses to eliminate their debts while allowing them to keep certain exempt property.  The amount of the exempt property varies from state to state.

Chapter 11 -  Rehabitation  or Reorganization.  Also known as a Corporate Bankruptcy, this type of Bankruptcy is used primarily for businesses, but can also be used for individuals with substantially large debt.   This type of Bankruptcy allows for a business to continue to operate while paying down their debts according to a structured payment plan.

Chapter 13 – Rehabiliation for Individuals with regular income.  Structures a payment plan to eliminate and/or pay down part of, or all of the individual’s debts.  This is also known as Wage Earner Bankruptcy.  

3.     What is the difference between Bankruptcy and Debt Consolidation?

Debt consolidation is a Bankruptcy Alternative much different from bankruptcy.  Debt consolidation is where an individual or a business takes out one loan to pay off many others.  This loan usually entails assigning collateral (something of value) against the loan, usually a home or other high valued item.  Because the value of the home is given against the loan, there is less risk for the loaning bank which makes the interest rate and/or terms of the loan more favorable for the debtor. 

Bankruptcy is where a court determines that a person or business is legally unable to pay for a debt or debts, and thus the debts are discharged, or written off completely.

Some companies offer services in Debt Consolidation where they negotiate with your creditors to lower interest rates, payments, and/or balances of your debts and combine them into one payment.   This method of consolidation is done without having to be approved for a loan, but rarely offer any type of guarantee as to how much they can lower the balances or interest rates.

4.   How does Bankruptcy affect my credit score?

A Chapter 7 Bankruptcy remains on an individual’s credit report for 10 full years (from the date the bankruptcy is filed).   The bankruptcy can make credit harder to come by and cause loan or credit card terms less favorable, however, high debt to income ratio listed on the credit report and/or debts that have been sent to collections or “charged off” can have the same effect.   Some people have even experienced their credit score to be unaffected or helped by declaring bankruptcy since their debt is fully or heavily relieved.

5.  Can I keep my vehicle if I file for Bankruptcy?

With few exceptions, most people who qualify for Bankruptcy are able to keep their vehicles, provided they keep up with the payments of the original contract of the loan.  Bankruptcy filers do have the option of surrendering their vehicles, eliminating their obligation to pay for it.

The exception(s) to this is when filers have non-exempt equity in the car(s).  If the vehicle(s) are worth a lot of money, and there is little or no money owed on the vehicle(s), the Bankruptcy trustee could take their value into account.  Speak to an attorney about your situation, and they should be able to provide you with a good idea of whether or not you will be likely to keep your car. 

6.     Can I keep my home, condo, or co-op if I file for Bankruptcy?

Again, as with the car issue, with few exceptions,if the equity in the home is exempt, and you keep the payments up according to the terms of the original mortgage(s), you should be able to keep the house.

If you do have substantial equity in the home, but are unable to obtain a debt consolidation loan, you should discuss with your attorney about filing for Chapter 13, instead of Chapter 7.

7.     I’ve already declared bankruptcy;  Can I file again?   How many times can I declare Bankruptcy?

Short answer – Yes.   The U.S. Bankruptcy Code does not specify a maximum number of times one can file bankruptcy, but Courts will scrutinize multiple filings and will deny a person the ability to re-file a case if the Court believes the person's multiple filings constitute an abuse of the Bankruptcy Code. One example is, if a person files multiple cases because they have a medical condition and can't get insurance and medical bills keep piling up, the Court has the option to allow multiple filings. On the other hand, if one keeps voluntarily charging up credit card, getting loans or other unsecured debt and tries to come back to Court to discharge them, the Court has the option to deny the filing.  Speak to an attorney and they can usually give you a good idea as to whether the Bankruptcy trustee would be likely to allow another filing.

8.       Will I lose my tax refund if I file for Bankruptcy?

Keeping tax refunds depends on a substantially large number of factors, including:  when you filed, if you filed with a spouse, how much the tax refund is, whether you’ve taken exemptions such house, cash or car exemptions, and many more.   In many instances, Bankruptcy filers can keep all or a portion of their tax refund.  Discuss this with your attorney and they can give you a general idea of what you would be entitled to.

9.    How long will my Bankruptcy case take to complete?

Chaptery 7 Bankruptcies take approximately 3-6 months depending on the complexity of the case and the backlog of cases in the Bankruptcy court, from the date of filing.  Prior to filing there is case preparation time, which will depend heavily on how fast the attorney can prepare the necessary documents, and how soon the debtor can get the necessary paperwork requested by the attorney to him or her.  

To expedite your case, make sure you have the necessary documentation ready for your attorney, including but not limited to:  3 years of tax refunds, recent paystubs, bills – credit card, utility, rent/mortgage, insurance, etc.; recent credit report from all 3 credit bureaus, loan paperwork, etc.   Talk to your attorney to get advice as to what documents you should bring with you to speed the process along.

10.      Which one should I do – Debt Consolidation or Bankruptcy?

Whether you should file for bankruptcy or try one of the many methods of debt consolidation is definitely something you should obtain the advice of an attorney to decide.   The decision will count on many factors, including how much debt you have, your assets, whether or not you can afford the terms of debt consolidation, your employment, your credit status, and much more.  Discuss all these elements of your situation with your attorney and come up with the best course of action for your specific situation.

11.       Will I be able to get a loan if I file for Bankruptcy?

Yes you can.  Many companies offer recently bankrupt persons car loans, personal loans, and home loans.  The terms and conditions of these loans are not always as great as the terms for persons with good credit, but obtaining a loan is possible.  You may find you will receive many offers after declaring bankruptcy from companies with offers for loans and/or lines of credit.  As always, the best way to raise the chances of obtaining a loan is to keep payments for your secured car or house loans current and/or have established payment history.

NOTE:  Before applying for a loan, always check your credit report.  Be proactive in removing and/or disputing items on your credit report that are paid off, discharged in bankruptcy, or for any reason no longer your debts.   Removing these items will help raise your credit score which is the primary item banks and loan companies look for when you apply for a loan.

12. .  Will I be able to get credit cards if I file for Bankruptcy?

Yes you can.  Many companies offer recently bankrupt persons both unsecured and secured credit cards.  The terms and conditions of these cards are not always as great as the terms for persons with good credit, but obtaining a credit card is possible, and is one of the best steps to rebuilding your credit.  You may find you will receive many offers after declaring bankruptcy from companies with offers for credit cards and/or lines of credit. 

NOTE:  Before applying for a credit card, always check your credit report.  Be proactive in removing and/or disputing items on your credit report that are paid off, discharged in bankruptcy, or for any reason no longer your debts.   Removing these items will help raise your credit score which is the primary item banks and loan companies look for when you apply for a loan.

13.    How will my employment be affected if I file for Bankruptcy?

 Employers, are prohibited (federal law) from firing any employee upon learning that they have filed bankruptcy. If your employer recently learned that you declared bankruptcy and subsequently fired you from your job, you may have a bankruptcy discrimination case.    Most employers never find out about their employees’ bankruptcies unless, as part of a Chapter 13, the payments to the Bankruptcy Trustee come directly out of their paycheck. 

If a private company pulls your credit report, and sees you have declared bankruptcy, they may (and can legally) deny you a job.  Local, State and Federal jobs are prohibited from denying someone a job on the basis of Bankruptcy, and even private sector employers are prohibited from denying any promotion on the basis of Bankruptcy.  Many companies can deny security clearance to people who owe a lot of money. 

14.         How much does it cost to file for bankruptcy?

As with any legal issue, cost of representation depends on a variety of factors.  In Bankruptcy cases, it may depend on the amount of debt, the complexity of the financial situation, whether there are home and car(s) to fight for, student loans, judgments to vacate, how long and how much work it takes to get necessary documentation, and much more.

15.     Why do some attorneys charge more than others? What should I look for?

Attorneys fees can vary substantially.  Again, depending on many factors.  Main factors that justify charging more are:  Experience (years in the business), type of case, whether they charge by the hour or have flat fees, how many employees will work on your case, etc.   However, it should be noted, that simply charging less doesn’t necessarily mean your attorney is inexperienced or doesn’t have many people working on your case.  Many attorneys try to make up for charging less than the standard, by dealing in volume, and vice versa. Find out their experience level, how many cases they’ve closed, what they charge, how many people work on your case, and how long things will take.  A good attorney will always answer these questions straightforwardly.  Consumer Reports states that finding a lawyer via television/radio ads is not a good way to find an attorney, and they usually cost more.  The cost of those advertising campaigns is large, and that usually translates to more cost for the client.  Also, many of those “800 number” law firms divide their cases up amongst members of the firm, so you don’t get the personal service many sole-practitioners can provide.

Sunday, June 19, 2011

What can I do if I am a victim of identity theft? By Brooklyn Debt Relief Attorney.

Identity theft is the fraudulent use of another person’s identity generally to gain access to credit, assets or other benefits under that person’s name. The person suffering from identity theft can suffer many adverse consequences.

There are a number of different types of identity theft. 

• Criminal identity theft (posing as another person when apprehended for a crime)
• Financial identity theft (using another's identity to obtain credit, goods and services)
• Identity cloning (using another's information to assume his or her identity in daily life)
• Medical identity theft (using another's identity to obtain medical care or drugs)
• Child identity theft

This article will focus on the steps one should take for financial identity theft.

What are the steps I should take if I'm a victim of identity theft?

If you are a victim of identity theft the first step you should do is put a fraud alert on all of your credit reports and frequently review your credit to make sure no new accounts are opened in your name.  There are three credit reporting companies but you need only to call one to have the alert placed.

If you discover that accounts were improperly opened in your name, you need to immediately close these accounts and notify the fraud departments of each company where the fraud occurred. You will have to dispute the transactions.  I strongly advise you to notify all companies in writing by certified mail. If fraud has been done on existing accounts, then the fraud department will most likely have you fill out a fraud affidavit where you will state under the penalty of perjury that you were not the one that made the transactions. I also strongly advise you to fill out a police report, as it adds additional corroboration to your claim of fraud.

There are two types of fraud alerts, an initial alert and an extended alert.  An initial alert stays on your credit report for 90 days and potential creditors must use “reasonable policies and procedures” to verify your identity prior to issuing credit in your name. Once you place an initial fraud alert you are entitled to one free credit report from each of the three consumer reporting companies.

You are entitled to a seven year fraud alert or extended fraud alert if you present the reporting agency with an identity theft report. Here a potential creditor must actually contact you or meet you in person prior to issuing you credit.  You also are entitled to two free credit reports within twelve months from each other from each of the three credit reporting agencies. A fraud alert will not protect you from identity theft on existing accounts; it only helps prevent the opening of new accounts in your name.

What’s the difference between a credit freeze and a fraud alert?

A credit freeze will limit access to your credit report by anyone unless you have a relationship with the company.  An example of a “relationship” is your relationship with your current credit card or Mortgage Company.

If you have any other questions concerning identity theft, please contact me, George M. Gilmer, Esq., a Brooklyn Debt Relief attorney for further details. 

Thursday, May 19, 2011

How do I get a paternity test to stop paying child support in New York? Should I take a paternity test? By Brooklyn, New York Paternity and DNA Test Attorney

Hello, I am a Brooklyn based Family Court Attorney.  There are some fathers that have been brought to Court on Child Support proceedings that doubt that they are the real father of the child in question. When a child is born to parents that are not married to each other the biological father is not considered the child’s legal parent unless the father has signed an  Acknowledgement of Paternity or if an “order of filiation" has been entered by the court declaring the person to be a biological father. In either case, when a man is determined to be the biological parent of a child, he has an obligation to pay support for that child. A paternity petition may be filed by either the mother or alleged father or by the Department of Social Services if the mother is receiving Public Assistance.  The person who files is called the Petitioner and the Petitioner must serve the Respondent at least eight days prior to the Court date.

There are circumstances where some alleged fathers may not believe that they are the real father of the child in question.  If the mother was not married to you at the time of birth and married to someone else, but claims that you are the father, the person that the mother was married to is going to be presumed to be the father, unless the  Family Court determines otherwise.  In this situation, a petition that is filed to determine Paternity, will need to be legally served on the alleged father and the person with whom she was married to.

Once filed all necessary parties will be notified to come to Family Court, for example Kings County Family Court in Brooklyn, and appear before a  Support Magistrate. Once the paternity case starts the first issue that needs to be determined is whether the court has jurisdiction over the necessary parties. The person who filed may be required to file an Affidavit of Service to prove who was served. If you were not served properly or not served at all, you have the right to dispute service and if the court believes you, the Petitioner will have to file again.

Next the Support Magistrate will ask the presumed father if he admits to being the father of the child. If you are asked this question, you also have the right to say no and ask for a paternity test.  There are occasions however when the Court will be inclined not to grant a DNA test.  One common situation is where the alleged father of the child has signed an  Acknowledgement of Paternity. A signed cknowledgment of paternity signed may be rescinded by the mother or the alleged father by filing a petition with  the  court  to  vacate  the acknowledgment  within  the earlier of sixty days of the date of signing the acknowledgment or the  date  of  an  administrative  or  a  judicial proceeding  (including  a  proceeding  to  establish  a  support  order).

After this sixty day period elapses, the alleged father will have a much harder time vacating this Acknowledgement of Paternity. He will have to prove some type of  fraud or duress in the signing of the document. In one of my cases, the support magistrate agreed with my client, and held that my client was coerced into signing the acknowledgement of paternity because the mother of the child threatened to tell my client’s wife about his alleged infidelity. If this can be proven the court may grant a paternity test.

Before ordering the paternity test, even if there is no Acknowledgement of Paternity or the Acknowledgment of Paternity was vacated the Court may still order a hearing on the issue of  Equitable Estoppel. Here the court will determine whether the father has, despite now claiming he is not the father of the child, held himself or acted as the father of the child prior to the filing of the paternity petition. 

This is obviously a very important hearing. On the one hand, if you have acted as the father of the child that you now claim is not yours, and a paternity test confirms this, the child in question could be traumatized severely. Imagine if the person you thought was your father, in some cases for many years, was not your father.  The court will appoint a  Law Guardian to the child to make sure the child’s rights are protected. The law guardian will either testify or file a report with the Court in reference to their opinion as to whether a parental bond exists. The Law Guardian’s position, although advisory, is a very important one in helping the court determine the issue of estoppel.

On the other hand, I have represented clients who have either paid child support for eighteen years or who have had judgments entered against them in the hundreds of thousands of dollars for unpaid child support for children that turn out not to be theirs. The issue of estoppel is thus a complicated issue.

After paternity has been decided, if the custodial parent seeks an order of child support, or is receiving public assistance for the child, the Magistrate will conduct a support hearing.

I represent have represented many fathers in disputed paternity proceedings. I am an experienced Family Court attorney with Law Offices in Brooklyn, New York. Please visit my  website for other practice areas.