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Tuesday, February 18, 2014

Corporal Punishment in New York City: Discipline vs. Abuse

A mother in Massachusetts was recently arrested after patrons at a supermarket called police to report she had abused her 5-year-old son.

Witnesses say she began to spank the child while in the check-out line of the store. Onlookers urged her to stop,  but she continued. Roughly a dozen patrons then followed her out to the parking lot, wrote down her license plate number and called police. She explained she had merely been disciplining her son, an "active" child. However, she was arrested on charges of assault with a dangerous weapon on a child under 14. Local social services have opened a case file on her and her family.

Our Brooklyn family law attorneys know that parents of young children will at some point inevitably lose their temper. In some families, corporal punishment is considered a moral and effective form of discipline. There are some who argue it isn't used enough, which explains some of our societal failures.

But is corporal punishment legal in New York?

The answer is yes. However, that does not necessarily mean that the New York Administration of Children's Services won't  get involved in cases of legal child discipline. What one family perceives as perfectly normal, another may deem harsh.

These kinds of claims will often arise in child custody battles, where one parent interprets the corporal punishment as discipline, while another deems it abusive.

In the end, it's often social workers who are tapped to make the judgment call. Such a determination, even if it doesn't result in arrest, can have a profound impact on an individual and a family.

Setting aside the various moral arguments for and against spanking, let's focus here on the legal aspects.

Corporal punishment for children in New York is legal. However, parents should be mindful of N.Y. FCT. Law 1012. This law holds that a child (that is, a person under the age of 18) could be considered "neglected" when his physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired due to his parent or caregiver "unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereto, including the infliction of excessive corporal punishment."

This law is painfully broad, and is open to a wide degree of interpretation.

The state's criminal law, specifically N.Y. Pen. Law 35.10, is a bit narrower in its definition of justification for use of physical force against children. This law states that a parent, guardian or person entrusted with the care and supervision of a person under the age of 21 can use physical force (but not deadly physical force) upon such person when and to the extent that he reasonably believes it necessary to maintain discipline or to promote the welfare of such person.

The key work here is "reasonably," and that is open to interpretation of the court.

Some states have taken these laws a step further by specifically defining "how hard is too hard." In Texas, for example, disciplinary spanking is confined to the buttocks. A bare hand may be considered abusive, but the use of an instrument, such as a belt, may not so long as injury does not occur. A child who is bruised or requires medical attention may be considered abused.

However, New York doesn't offer up such specifics.

What is clear is that the standard for proving child abuse stemming from corporal punishment is much higher in criminal cases than in family court. So even if hitting or spanking a child for disciplinary purposes may not land you in jail, it could very well impact your ability to maintain custody of your children. The family court judge may require you to attend parenting classes or some type of anger management course - at your own expense, of course. 

In some cases, ACS may petition the court to have your children removed from your home, resulting in trauma to both you and the children.

Successfully fighting back against these sorts of ACS actions requires the assistance of an attorney who is experienced in New York family law.

Contact the Brooklyn Family Law Office of George M. Gilmer at (718) 864-2011.


Tuesday, February 18, 2014

What should I do if ACS is knocking on my door? By Brooklyn, NY CPS Attorney

In my years of representing clients in ACS cases (Administration for Children’s Services, the Child Protective Service (“CPS”) of New York City) on abuse and Neglect cases, a common thread of fact patterns generally arise.  Generally ACS opens a case based upon an anonymous tip or phone call to the child abuse hotline.  The next thing the parent knows, a full blown investigation is occurring and the parent is being called to court with the threat that their child or children is going to be placed into foster care.  Many parents come to me when they have been called to Court, perhaps even having their children already removed from the home. The parent asks me with dismay, “how did this happen?”

To me, after interviewing the client, I completely understand why the parents are in the trouble they are in.  They talked too much at the onset of the investigation. Below is a list of the Pros and Cons when dealing with ACS.

1.       ACS knocks on your door should you let them in?

 

PROS:  If you let them in, it will perhaps make them less suspicious and if a false complaint was filed against you they may quickly realize this once they interview you and your children (see my advice about allowing your children below) there is nothing wrong and may close the case quickly.

 

CONS: If you let ACS in, especially if you let them in when the house is disheveled, you’re arguing with your spouse, you are intoxicated, or before speaking to an experienced attorney,  It can open up a can of worms.  I have represented many clients, accused of a very minimal charges by ACS initially, who, by letting in ACS in caused greater problems.  For example, in one case, a client of mine was accused of neglect because a call came in that they were smoking marijuana in front of their child.  ACS was allowed into the apartment and upon being interviewed by the Case Worker the parents admitted to smoking marijuana and drinking on occasion.  The parents, who were not drug or alcohol abusers, who did not smoke in front of their child, where forced into substance abuse treatment over the threat of losing their kid. This is because they both admitted to smoking marijuana. When one of the parents missed a couple of appointments at the treatment program, their case was called into court.  Although the case was resolved without removal, their bad judgment in letting ACS in and then disclosing all of their personal information here while not under oath was not a good move. Not everyone that smokes marijuana on occasion or drinks is a bad parent, but it is the Agency’s job to make out a case against you and paint you in a bad light.

 

Thus, unless ACS is accompanied by the police or armed with a Court Order, do not allow them into your home. Send them away and tell them and call a Child Protective Attorney, like myself.   If they have grounds to enter your home the can obtain a court order to do so.  You never know what ACS will find when you let them in, so be careful.  Furthermore, unless there is a Court Order to do so, you do not have to speak with ACS and you do not have to answer their questions.

 

Remember, if you don’t let them in, it may arouse suspicions and ACS may come back with a Court Order or come with the Police to get in or a Court Order for you to appear in Court. At this point you will have to either let them in or go to Court. You will have to use your judgment, but in my opinion, if the allegations against you are not that serious, the PROS outweigh the CONS in not letting them in.

 2.       ACS after obtaining access to your apartment wants to speak with your children alone, should you let them?

 

PROS:  Once again, allowing CPS in and allowing them to talk to your children alone may decrease the aggressiveness of the agency in its investigation of you and may lead to a quick resolution of your case if nothing incriminating is found during the interview process.

 

CONS:  “Kids say the darndest things.”  I have had many clients who have allowed ACS to interview their child alone and their child throws them under the bus to the caseworker.  Kids, especially young ones, make up stories and lord knows this is the wrong time for a story to be made up.  I have had a case where a child said to the caseworker that “my mommy is an alcoholic.” The child was five years old and probably didn’t even know what that was but most likely heard daddy and mommy arguing and repeated what he heard.  The original investigation was not opened because of daddies or mommies drinking, it was for some unrelated allegation.  The child’s statement, however,  opened up a can of words an gave ACS more to investigate.

 3.       ACS wants to get HIPAA medical authorizations for you and your children, should you sign them?

 

CONS:  I would never advise anyone under any circumstances to sign HIPPA authorizations without proper legal counsel and/or without Court Order.  Very often people are forced to sign blank documents which give ACS carte blanche to conduct a fishing expedition into someone’s medical record.

 

 4.       ACS asks you if you drink or use alcohol, should you answer them?

CONS:  No, see above example. Don’t lie, just refuse to answer the question and tell them that you want to speak to an attorney.  Your admitting to use will always be used against you.

If you have a drug or alcohol problem, by all means get help for it. See a therapist go to AA meetings but as soon as you involve your use with your children, ACS will make your life very difficult.

 5.       ACS asks you if you have a prior history of mental illness.

 

See answer to Number 5. If you have mental health issues, and you know it, get help. It is your duty as a parent to do so. The Court cannot deny your rights as a parent so long as you are seeking out help for your condition. If ACS gets involved however, and you either admit to them a mental illness, you allow them into your medical history where they find it out (see the section about signing HIPPA releases) or by your actions it’s clear, you could lose your children.

What should you do if ACS is knocking on your door?

Ask them for details about the allegations. Many times, ACS will knock on your door and not even tell you what you are being accused of. If this is the case, and they do not have a Court Order, do not let them in. You have the right to know what you are bring accused of.  Ask the Case Worker to also provide paperwork to you concerning the case.  When an investigation is started on an ACS case, the agency generates a letter informing you that you are the subject of an investigation.  From the date of this letter the time starts to tick on the investigation. ACS has 60 days to complete their investigation. You want to see a copy of this letter.  If you can, try not to let them in until you talk to an attorney, if they do not have a Court Order to gain entry you have this right.

 If you have any further questions, please contact me, a Brooklyn, New York City ACS lawyer at 718-864-2011


Saturday, February 15, 2014

Report: American Families Changing, Family Law Needs Evolve Too

A recent in-depth report in The New York Times explored how the American definition of "family" has been rapidly evolving over the last several decades.

The "typical" nuclear family of a young wife, husband and 2.5 children is no longer necessarily the norm in many places. In addition to families headed by homosexual partners, many families have become blended following second and even third marriages. They are more racially, ethnically and religiously diverse than they were even a generation ago. Some people delay marriage extensively or reject it altogether in favor of cohabitation. The birthrate has been halved since 1960, and older generations are finding love and choosing marriage later in life than ever before.

As the American family has changed, the American legal system has struggled to keep the pace. Our Brooklyn family law attorneys recognize that we have seen this in states' approval (and bans) of gay marriage, expansion of adoption laws and the rise of prenuptial agreements and cohabitation agreements.

One of the greatest changes over the last several decades, the Times reports, is the number of people who are choosing to cohabitate and have children outside of wedlock. While women with bachelor's degrees or higher marry before having children about 90 percent of the time, the numbers are far lower for everyone else. More than 40 percent of all babies are now born outside of marriage - which is a 400 percent increase since just 1970.

Of those mothers who are unwed, about 25 percent live with a man who may or may not be the child's biological father. Cohabitation rates have risen by nearly 170 percent just in the last several years, from 2.9 million in 1996 to 7.8 million in 2012.

Cohabitation agreements have also become increasingly important for homosexual couples, particularly in states where their marriages are not recognized.

Additionally, the number of gay couples with children has doubled just in the last decade, according to the Williams Institute at the University of California, Los Angeles. Researchers there say well over 100,000 gay couples are raising children in America. Other estimates put the number of children being raised by gay parents at close to 2 million, or about 1 out of every 37 children. The rights of both parents in these unions must often be affirmed and protected through legal paperwork filed in family court.

Another aspect that has thrown the family legal system for a loop is the rate of working mothers. It used to be in divorces or other family legal matters that the male/father would be expected to support the family both during the union and after a divorce. But women's paychecks have become not only vital to their family's financial health, in many cases, they are now the breadwinner (40 percent of families are headed by women who are the primary wage earners, versus 11 percent in 1960). That has resulted in a shift in the way courts approach issues of child and spousal support.

Then there is the overall shift in the age of those who are getting married for the first time. The average age for men has risen from about 23 in 1970 to 29 in 2010. For women, it was 20 in 1970. Now, it's nearly 27. Delaying marriage has given individuals more time to focus on their careers and obtain financial stability. This in turn has led to lower divorce rates among these cohorts after they actually do get married. However, it has also increased the number of premarital agreements signed, as each party has more interest in protecting the assets they brought into the union, including homes, vehicles, savings and retirement accounts.

Children, too, are being delayed. In 1970, most first-time mothers were 22. As of 2010, they were 26. There has been a significant shift in the number of teen mothers as well, with most first-time mothers having their children in their mid-20s to early-30s.

We also see fathers who are more involved than ever in their child's lives. That has meant that in the event of a divorce, custody isn't automatically assumed to go to the mother, as it was in years' past. Fathers are now given equal consideration in terms of custody and child-rearing.

As this research shows, there are many reasons beyond simply divorce why a New Yorker might seek the services of a family law attorney. We're here to help.

If you are in need of a Brooklyn family law attorney, call our offices at (718) 864-2011.


Saturday, February 15, 2014

Bronx Divorce and Money Matters: Why a Split May Help Your Finances

Our Bronx divorce attorneys want to steel our clients for the financial impact of divorce. Particularly in a contested divorce, individuals should anticipate a year or two of financial strain, which will include upkeep of all the previous expenses, plus those you will incur while maintaining a separate household. There are attorney's fees,  court expenses and support payments to consider.

All of these can be significantly mitigated when a divorce is uncontested versus contested, but the the type of filing you choose will be heavily dependent on your individual situation.

Still, one aspect of divorce that tends to get less attention, though, is the financial benefit. Most people expect their savings to take a dive, but they fail to consider that in many cases, a divorce may actually boost one's credit. A recent Divorce and Credit survey conducted by Credit.com found that nearly half of respondents realized a credit boost once their divorce was finalized. About 30 percent indicated a "significant" increase.

The 530 adult respondents varied in age, education level, location and income level. Admittedly, this wasn't a nationally representative group, but the results nonetheless offer a different perspective on divorce and finances than the one we are so used to hearing.

Overall, 46 percent said their credit score had improved following divorce. Of those 29.66 percent said their score had improved significantly, while 16.35 percent said it improved "a little."

There were 12.36 percent who said their score become a little worse and 19.01 percent who said their score got significantly worse. About 23 percent said they didn't know how their score was affected.

Those couples who did indicate a dip in credit scores following divorce were more likely to indicate that finances were a central reason for the split. Among those whose scores decreased after a final judgment was issued, about 7 percent indicated that finances were a prime factor in the separation. Compare that with those who saw a credit score increases, where only about 4 percent said money was the main issue. Of those whose credit score climbed, more than 40 percent said money had nothing to do with the breakup, compared to 30 percent of those whose scores had dropped following divorce.

The reality is that divorce itself doesn't have any direct impact on your credit. You get no positive or negative marks either way for the actual filing.


Thursday, February 13, 2014

How Chapter 7 Bankruptcy Affects Child Support Arrears

Experiencing money troubles can touch every aspect of your personal life. When there is not enough cash to go around, the typical person starts prioritizing financial obligations. A person might cut back on food and clothing expenses, cut out recreational or entertainment spending, or may pay some bills late. When there is little or no money due to a loss of income, the situation may become dire.

 

Bankruptcy is the answer for many New York residents facing financial difficulties. Chapter 7 can completely and forever discharging debts, but Congress has identified some debts that will survive a Chapter 7 bankruptcy discharge. One debt category that is especially difficult to discharge is child support arrears. It is important to seek experienced counsel before filing a bankruptcy case with a child support arrears.

 

Child support arrears are not discharged

A Chapter 7 bankruptcy case does not discharge a child support debt. Specifically, Section 523(a)(5) of the Bankruptcy Code excepts from a Chapter 7 discharge a debt “for a domestic support obligation.” Section 101(14a) includes a child support arrearage in the definition of a “domestic support obligation” when the debt is:

  1. owed to or recoverable by (A) a spouse, former spouse, or child of the debtor or such child’s parent, legal guardian, or responsible relative; or (B) a governmental unit;
  2. in the nature of alimony, maintenance, or support (including assistance provided by a governmental unit);
  3. established by a (A) a separation agreement, divorce decree, or property settlement agreement; (B) an order of a court of record; or (C) a determination made in accordance with applicable nonbankruptcy law by a governmental unit; and
  4. not assigned to a nongovernmental entity, unless that obligation is voluntarily assigned for the purpose of collecting the debt.

 

Bankruptcy does not stop collection of child support arrears

When a person files a Chapter 7 bankruptcy case, collection actions against the debtor must stop, but Congress has carved out another exception for collecting child support arrears. Section 362(b)(2)(A) states that the bankruptcy automatic stay does not apply to:

  1. the establishment of a child support obligation;
  2. the collection of child support from property that is not property of the estate; or
  3. the withholding of income that is property of the estate for payment of a child support obligation under a judicial or administrative order or statute.

 

In a Chapter 7 case, the debtor’s post-filing income is not property of the bankruptcy estate. Consequently, a wage garnishment or income tax refund intercept to collect a child support arrearage may continue during a Chapter 7 bankruptcy case without running afoul of the court’s automatic stay order.

 

Bankruptcy exemptions do not protect your property

Section 522 of the Bankruptcy Code allows a debtor to exempt property from the claims of creditors, but not against a debt for child support. The creditor must first seek permission from the bankruptcy court to proceed against property of the bankruptcy estate through a Motion to Lift Automatic Stay. Several bankruptcy courts have ruled that the Bankruptcy Code does not allow a Chapter 7 trustee to liquidate exempt property to satisfy a domestic support obligation. See In re Duggan, 2007 Bankr. LEXIS 2750 (Bankr. M.D. Fl. 2007). However, these same cases suggest, or explicitly hold, that a domestic support creditor could do so. See In re Quezada, 368 B.R. 44 (Bankr. S.D. Fl. 2007). To date the process for such an action remains in question.

 

If you are struggling with paying your bills and owe child support, call the Law Office of George M. Gilmer and discuss your situation with an experienced bankruptcy attorney. Bankruptcy is not a “one size fits all” legal process. Child support arrears are difficult to discharge in Chapter 7, but a Chapter 13 bankruptcy may provide the relief you need. Call today for a Free Phone Consultation.

CLICK HERE FOR MORE INFORMATION ABOUT BANKRUPTCY

 


Wednesday, February 12, 2014

New York City Small Business Owners Must Carefully Consider Divorce Actions

Divorce can be trying for anyone. However, small business owners must be amply prepared before filing for divorce in New York City in order to protect their company, assets and employees. 

You may have considered that certain property, like the house, would be fair game and that your debts may be divided with you paying the larger share.

However, your business interest could be considered a piece of property that could be at risk for division in your divorce, and if you hope to protect it, you need to consult with an experienced divorce lawyer - preferably before you file. Even if the business itself may not be up for grabs, the value of it could be considered by the judge when determining how to split up your property. 

This is true even when your spouse has no ownership interest in the firm and even if he or she knows virtually nothing about what you even do. 

It's not that the non-business-owning spouse somehow becomes part-owner. Rather, the entrepreneurial spouse may end up owing the other for a portion of the business interest. 

Some company owners make the mistake of assuming that just because the spouse was not involved (or minimally involved) in building the business or the day-to-day operations that they don't have a stake in the firm. Legally, as far as divorce is concerned, this may not be true. Several factors will be considered, including how long you have been married, what sacrifices your spouse may have had to make while you grew the company and whether he or she did have any direct involvement. 

New York is an equitable distribution state, which means the court will be responsible for determining an asset division schedule that is most fair. Bear in mind that "equitable" doesn't mean "equal," and this is true for your business interests as well. 

The particular method of valuation of your company or your interest in the company will vary on a case-by-case basis. The court is going to look at the book value of the firm, its income approach and its market value. 

The process for determining a company's value tends to be quite complex. You wouldn't want to rely on your average, run-of-the-mill accountant to make the case you will present to the court. Typically, your attorney will guide you to experts in the field who focus on this specific kind of forensic financial work. While this can sometimes get pricey, a lot of times, these individuals can help in the process of divorce settlement negotiations - which keeps you out of court and significantly drives down the overall cost of the process. In these instances, the added expense is almost certainly worth it. 

While you and your soon-to-be-ex could hire separate financial experts, you might be able to further reduce expenses by hiring a single "neutral" expert who can help you reach a fair conclusion. 

Your attorney can help you do a preliminary evaluation of the firm and other assets to help you figure out the most cost-effective approach to preserving your business interests during the divorce proceedings. 

If you are a small business owner contemplating divorce in New York City, call our offices at (718) 864-2011.

Additional Resources:

Business owners and divorce, Feb. 3, 2014, By Christopher H. Macturk, The Richmond Times-Dispatch

More Blog Entries:

Benefits of a Prenuptial Agreement in Brooklyn, Feb. 5, 2014, New York City Divorce Lawyer Blog


Monday, February 10, 2014

Going "Below Guidelines" on Brooklyn Child Support

When it comes to seeking a child support modification in Brooklyn, there are a few different ways parents can go about it. They can either negotiate directly with each other to reach a reasonable solution, or they can request that the court intervene. 

Even if you choose the former, you will want to ask the judge to approve the change. Typically, this is not a problem - except if the amount to which you agree is below state guidelines. 

The New York Child Support Standards are spelled out by the state's Office of Temporary and Disability Assistance Division of Child Support Enforcement. Generally, percentages are as follows:

  • One child - 17 percent of your income;
  • Two children - 25 percent of your income;
  • Three children - 29 percent of your income;
  • Four children - 31 percent of your income; 
  • Five or more children - at least 35 percent of your income. 

So for example, if your former spouse's annual income is about $29,000 and you have two children together, your spouse is probably going to pay about $7,250 a year, or $600 a month. However, if your former spouse earns this same amount and you have four children together, he or she is going to pay about $9,000 annually, or $750 a month. 

Agreeing to anything less, even though times might be hard, can be dangerous because successfully securing a child support modification can sometimes be difficult. The court wants to know that you have seen a substantial change in circumstances that warrant a change. If you have simply found out that what you are being paid isn't quite enough, the court may not be sympathetic. Either way, an experienced divorce lawyer will be needed to help you make the case. 

This is what happened In re Marriage of Mihm, reviewed recently by the Iowa Supreme Court. 

These two parties married in 1997, had three children and divorced in late 2008. The former husband was ordered to pay $2,500 monthly in temporary child support payments (while the divorce was pending). This was in line with the state guidelines.

Later, the pair reached their own agreement. The husband would pay the wife $500,000 - $100,000  immediately and $400,000 in installments over the course of eight years. He would also pay $500 monthly in spousal support and $1,500 monthly in child support. This $1,500 monthly amount was far less than what the state's child support guidelines stipulated (just 60 percent of the original order). However, this fact was not pointed out by the district court and no reason was offered. 

The following year, the husband sought to modify the agreement because his former wife had moved more than 60 miles away without receiving prior court approval, in violation of their divorce decree. The ex-wife had also remarried and custody of the oldest child now was with the father.

The former wife then filed a counterclaim, seeking to increase child support payments, as the former husband's income had become substantially higher. 

The wife would later testify that she signed the earlier stipulation against the advice of two attorneys because she felt harassed by her ex-husband and simply wanted it all to end, so long as she could maintain custody of the children. She conceded she wanted to change the child support obligation agreement because she had "made a bad deal." 

The district court found that the ex-wife failed to show a significant change in circumstances and denied her request to modify the child support obligations - even though they were much lower than what the guidelines would suggest. The court reasoned that because the agreement was made by both parties with full knowledge that the support payments were below guidelines, the agreement shouldn't be modified unless "for the direst of needs." 

The ex-wife appealed and this earlier ruling was confirmed. It wasn't until she appealed to the state's supreme court that she was able to obtain relief, as that court reversed and remanded on the issue of child support, with the court finding the ex-wife had shown a substantial change in circumstance. 

Specifically, the move of the oldest child to the father would warrant this change. The lower courts had reasoned that this type of change would typically result in a decrease in obligations, not an increase, and so declined to consider it. However, the supreme court noted that even at $1,500 a month, the former husband was paying far less for just two children than he would under the standard guidelines.

The court also reasoned that while her spousal support of $500 monthly was correctly terminated, it had been taken into consideration back when she agreed to accept just $1,500 a month for the three children. Lacking that additional $500 a month, even if it was properly terminated, would still be something the court should weigh. 

In the end, the modification request was granted - but not without a fight. It's always best to ensure the deal that is worked out during the divorce sufficiently meets the needs of you and your children. An experienced attorney can help. 

If you are contemplating a divorce in New York City, call our offices at (718) 864-2011.

Additional Resources:

In re Marriage of MihmJan. 24, 2014, Iowa Supreme Court

More Blog Entries:

Brooklyn Child Support Modification Requests, Voluntary Job Loss and Imputing Income, Feb. 1, 2014, Brooklyn Child Support Lawyer Blog


Monday, February 10, 2014

How Will Chapter 7 Bankruptcy Affect My Child’s Property? By Brooklyn, New York Bankruptcy Attorney

Filing a Chapter 7 bankruptcy case causes all of your legal and equitable interests in property are placed into a bankruptcy estate. A bankruptcy trustee is then appointed to administer the estate and pay creditors from any property that is not protected by law or by legal exemption. Sometimes the lines are blurred when trying to separate what belongs to you and what is property of another person, especially when you are trying to shield your minor child’s property during your Chapter 7 New York bankruptcy case.

Property that doesn’t belong to you

The most basic question to ask in determining whether the property belongs to you or to your child is simply this: “Who paid for the property?” You must claim a property interest in furniture, clothing, jewelry, electronics, etc. that you purchased for your child, even if it was given as a gift. On the other hand, you likely do not have a legal or equitable ownership interest in gifts to your child from grandparents or an ex-spouse, and that property does not become a part of your bankruptcy case. Your Brooklyn, New York Bankruptcy lawyer can help you determine your bankruptcy case will affect your child’s property.

 

If your child paid for the property from his or her own funds, it is generally considered the child’s separate property. For instance, if your teenage son worked all summer to earn enough money to buy a used car, the car would be considered his property. However, if you contributed to the purchase of the car, it would be joint property on a percentage basis.

 

Bank accounts with your child are treated as joint property on a presumptive 50/50 split, unless you can prove which deposits belong to your child. However, if the account is established under the Uniform Transfers to Minors Act (UTMA), the rules change. If you are the custodian of a UTMA account, the money is protected because it is legally not yours. Transfers to this type of account are irrevocable, but any money you deposited into this account will be scrutinized as a fraudulent transfer.

Property that is excluded

Some property is excluded from the bankruptcy estate as a matter of law. For instance, section 541(b) of the Bankruptcy Code excludes funds deposited into an educational savings account set up under section 529 of the Internal Revenue Code. But this protection is subject to some limitations. Funds are fully protected if deposited more than 720 days before the filing date; are protected up to $6,225 if deposited between 365 and 720 days; and are not protected at all if deposited within 365 days of the bankruptcy filing. The source of the funds does not matter, so long as the debtor is the owner of the account. This can create a trap for the unwary, especially if a family member (such as a grandparent) deposits into the account shortly before the owner files bankruptcy. See In re Bourguignon, 416 B.R. 745 (Bankr. D. Idaho 2009).

Property that is exempt

Property that is not the separate property of your child, and is not excluded from the bankruptcy estate by law, is included in your Brooklyn, New York bankruptcy estate. You are then entitled to use any available federal or state legal exemption to protect your interest in the property (which may only be a percentage interest). A Chapter 7 bankruptcy trustee rarely has any interest in children’s furniture, toys, and used clothing items since the fair market value for these items is little or nothing. The vast majority of Chapter 7 debtors do not lose any property.

 

For further questions about your Brooklyn, New York City Bankruptcy, please call me at 718 864 2011.

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Saturday, February 8, 2014

Concealing Assets Won't Help Your Bronx Divorce Case

Divorce is sometimes by nature adversarial. 

An amicable split may be desirable, but it's not always realistic. With feelings of bitterness and hostility may come the temptation to actively work to deprive your soon-to-be-ex of as much share of the assets as possible. Perhaps this is with good reason. If so, our Bronx divorce attorneys would advise you there's a right way to do it - and certainly a wrong way. 

The latter category would include efforts to conceal property or funds so that it can't be considered or divided as part of the marital estate. This approach almost always backfires, as we saw recently in D'Angelo v. N.H. Supreme Court, decided late last month by the U.S. Court of Appeals for the First Circuit. 

While divorce law varies from state-to-state and this was a case out of New Hampshire, the general principles are still applicable here in New York. 

This case stemmed from a cantankerous and prolonged divorce. Primarily in dispute were issues of child support for his son and alimony to his former wife. The process went on for years, starting in 2006. There were numerous hearings and court orders, mostly relative to the husband's finances.

Throughout the process, the court found that the husband had selectively excluded relevant financial information from the court, apparently in an attempt to keep certain assets and funds from entering his ex-wife's possession or to have it considered in the child support proceedings. As a result, the husband was found in contempt of court on multiple occasions. 

Because of these actions, the  court appointed another attorney to act as commissioner. In this role, the commissioner was tasked with investigating and reporting to the court on the husband's gross income between 2006 and the spring of 2012.

The commissioner's report was returned with findings that showed the ex-husband's income was far higher than what he had previously represented to the court. Finding the commissioner's report to be credible, the court accepted these findings as fact in making the final determination for support obligations. In addition, the court entered a judgment of $110,000 in favor of the wife. 

The husband apparently had no intentions of giving up. An attorney himself, he chose to represent himself and filed an appeal to the state's supreme court. However, the court declined to hear his appeal. He then filed a complaint with the U.S. District Court, seeking to enjoin both orders and reverse the denial of his discretionary appeal hearing to the state high court. He argued that such action violated the Due Process and Equal Protection clauses of the U.S. Constitution. He also sought monetary damages from the state supreme court for "failure to supervise" the family court. Additionally, he made a number of claims against the commissioner, alleging misrepresentations and violations of ethical rules. 

The district court dismissed all these claims. 

He then filed an appeal with the federal court of appeals. 

Not only were all of his claims again dismissed, he was given two weeks to show cause as to why the court shouldn't assess double costs for "needlessly consuming the time of the court and the opposing counsel." 

Had he simply been upfront about his finances from the very beginning of the case, he would have saved an inordinate amount of both time and money. 

We certainly understand that uncontested divorces in New York are not for everyone. But you should also know that the more you choose to fight, the costlier it gets. Further, attempting to hide money or assets will almost always backfire. 

If you wish to file for divorce in the Bronx, call our offices at (718) 864-2011.


Additional Resources:

D'Angelo v. N.H. Supreme Court, Jan. 29, 2014, U.S. Court of Appeals for the First District

More Blog Entries:

Report: New York Divorces to Increase as Economy Recovers, Feb. 3, 2014, Bronx Divorce Lawyer Blog


Wednesday, February 5, 2014

Benefits of a Prenuptial Agreement in Brooklyn

There is a skewed view of Brooklyn prenuptial agreements as being something of a weapon for wealthy spouses, eager to shield deep coffers from the hands of their less rich, less sophisticated partner. And of course, there is the notion that such agreements are deeply unromantic, undercutting the notion that marriage is forever, which is what you agreeing to when you enter the union. 

In reality, a good prenuptial agreement can do a lot to protect both spouses. Ultimately, it can save both parties a lot of time, energy and money that might otherwise be spent waging a bitter battle if things don't work out as planned (as will be the fate of at least 50 percent of all marriages). 

For example, a well-written prenuptial agreement can ensure children from prior marriages are protected according to your wishes should something happen to you. They can also shield both parties from joint liability debts. So for example, if the wife is the subject of a malpractice claim, a prenuptial agreement could protect her husband from extensive legal responsibility should she lose that case, thereby preserving assets for both spouses. Additionally, the contract can be beneficial in terms of titling marriage assets for the purposes of estate tax planning. 

But of course, broaching the subject of a prenuptial agreement remains a delicate subject. Even for a couple who talks about everything, simply raising the subject for discussion can be thorny. So what is the best way to go about it?

First, we recommend raising the issue shortly after the engagement. In an ideal world, this is something that would be negotiated and signed well in advance of the wedding invitations going out. Bombarding your intended with an agreement in the days or even weeks before the ceremony can make them feel as if they have been ambushed. This is no way to begin your journey together. You want to both be on the same page and comfortable with the terms of the agreement. Neither of you should sign anything until the agreement has been reviewed by two separate attorneys - one representing each of you - to ensure the agreement is mutually beneficial and each of your assets and interests are protected. 

Secondly, when you approach the conversation, make sure you are honest and forthright. Perhaps you have a family history of nasty divorces. Maybe you have children from a prior marriage and you want to make sure they are protected. In some instances, you may have an inheritance you want to shield. Whatever the case, be open. Your new spouse will respect you more for it and it will likely make the process move more smoothly. 

Bear in mind also that another reason to be upfront is that there has to be full disclosure in order for a prenuptial agreement to be considered valid. That means you are going to have to let your new spouse know how much you earn, how much you're worth and the extent of your assets. Again, ideally these would be discussions you would have already had, but at the very least, you will have to disclose them prior to signing the agreement. Keep in mind that if your spouse doesn't acknowledge certain property as separate at the time you married, he or she can always come back and later claim it was marital property, meaning it could be subject to division.

Be prepared for some level of negotiation. Try to approach this with a mature and open mind and with the legal advice of an experienced family law attorney. This means you will need to consider too any possible changes up the road. For example, both parties may be self-sufficient at the moment, but it's possible that once children come along, one could choose to become a full-time, stay-at-home parent. Your agreement should encompass these kinds of contingencies. 

Finally, do your best to be reasonable. Remember: This is the person you want to spend the rest of your life with. A good prenuptial agreement will ensure that both parties walk away happy - and together. 

If you are interested in learning more about how to draft a prenuptial agreement in Brooklyn, call our offices at (718) 864-2011.

Additional Resources:

How to Request a Prenuptial Agreement and Still Get Married, Jan. 24, 2014, By Daniel Clement, The Huffington Post

 


Monday, February 3, 2014

Report: New York Divorces to Increase as Economy Recovers

For the last several years, there was a significant downward trend of divorces across the country. But it wasn't that people were suddenly finding new and revolutionary ways to make marriages work. Rather, couples were holding onto dying relationships for one simple reason: They couldn't afford to let go. 

A new report set to be published in "Population Research and Policy Review" reveals that as the economy begins to rebound, we can expect the divorce rate to do the same. 

Securing an uncontested divorce in New York City can be done for as little as $499. 

Researchers reveal that from 2009 to 2011, there were reportedly 150,000 fewer divorces happening than what sociologists might typically have expected. In fact, divorce rates for married women fell from about 3 percent to about 1.95 percent between 2008 and 2009. However, over the next two years, the rate inched upward again to 1.98 percent. 

Conservative think tanks like The National Marriage Project hailed the lowered divorce rate as the bright side of the recession. They held that it was an indicator that husbands and wives pulled together during tough times. 

And perhaps to some extent and for some couples this was true. However, the big picture is that most couples were putting off divorce until they could afford it. 

Let's face it: Divorce can be expensive. Outside of court costs and attorney fees, routine expenses typically grow when individuals must somehow manage the finances of a separate household. This can be especially challenging if one party or the other (or sometimes both) is enduring financial hardship caused by a job loss, stagnant wages and an underwater home - all of which were extremely common during the downturn. 

Now, however, a separation is not so unreasonable as it once seemed. The fact that the economy has bounced back means that couples now may finally have the financial freedom that will allow them to separate. 

This same kind of pattern was observed in the 1930s, according to sociologists with Johns Hopkins University. The divorce rate took a nosedive during the Great Depression, but they say it had nothing to do with the fact that marriages were suddenly happier. It was because these folks couldn't afford to get divorced. 

Of course, the issue is not entirely black-and-white. For example, while joblessness among college graduates seemed to reduce the divorce rate, foreclosures for this same cohort appeared to drive up divorce rates. Sociologists say they aren't sure why this is. 

Another puzzling dichotomy is that while historically, marriages between those with less income and education tend to end at higher rates, a poor economy affecting greater numbers of people would result in fewer divorce filings. One explanation is that economic downturns don't impact whether a couple will get divorced, but rather when they do it. Meanwhile, low wage-earning spouses may not wait to file if they don't view their economic situation as temporary. 

Attorneys across the country have reported that many individuals end up walking away from a divorce once they find out how much it costs. This is particularly true for those living paycheck to paycheck. 

Our New York City divorce lawyers firmly believe that no one should be forced to stay in an unhappy union simply because they don't have enough money to walk away. We work closely with clients to determine a financially feasible solution, making it possible to move on and start the next chapter. 

If you are contemplating an uncontested divorce in New York City, call our offices at (718) 864-2011.

Additional Resources:

Divorces rise as economy recovers, study finds, Jan. 27, 2014, By Emily Alpert Reyes, The Los Angeles Times

More Blog Entries:

Bronx Divorce Courts Weigh Equitable Division of Property, Jan. 28, 2014, New York City Uncontested Divorce Lawyer Blog


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