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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.

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.

 


Friday, July 1, 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.


Tuesday, May 10, 2011

How do I file for Bankruptcy in New York? By Brooklyn Bankruptcy Lawyer and Debtor's Attorney.

For many people, bankruptcy can be a hard choice to make. There are many individuals that have been responsibly paying back their debt for years that run into a horrible life circumstance that puts their finances into shambles. Furthermore, the credit card companies, no matter how loyal you have been, don’t make things easier on you.  I have know of individuals who have been loyal customers to credit card companies  for years who have had their cards cancelled and their debts accelerated because of a small number of missed payments during tough financial times.

Before you file for file for Bankruptcy  you must make sure there are no other alternatives, especially since bankruptcy will remain on your credit report for up to ten years. One alternative might be to vacate default judgments against you.  This  can be a tool usede to clean ones credit. If after consultation with an attorney, this does not appear to be an option then you need to consider what type of Bankruptcy to apply for.  The most common types of consumer Bankruptcy types of Bankruptcy, Chapter 7 and Chapter 13 for Individuals with consumer debt.  In Chapter 7 bankruptcy the debtor turns over all non-exempt property to the bankruptcy trustee who then converts it to cash for distribution to the creditors. In the vast majority of cases the debtor has no assets that he would lose so Chapter 7, so aside from the stigma and the damage to one’s credit, Chapter 7 gives the Debtor a fresh start.

Chapter 13 Bankruptcy Bankruptcy is filed by individuals who want to pay off their debts over a period of three to five years. This type of bankruptcy appeals to individuals who have non-exempt property that they want to keep.

The Steps for filing a bankruptcy petition are as follows.  Firstly, after consultation with an experienced attorney,   the debtor will have to get counseling from an approved agency. Prior to obtaining a discharge the debtor, must take a Financial Management course , which is required by the bankruptcy court. The failure to take these two courses will lead to dismissal of the debtor’s petition. Also it is advisable after retaining your attorney, to refer your creditors to your lawyer’s office so he or she can speak on your behalf.

After the counseling, the debtor will file with the bankruptcy court  a petition, with schedules of assets and liabilities and a statement of financial affairs. The debtor will also be required to pay the filing fee.

In order to qualify for a Chapter 7 bankruptcy the debtor, who has primarily consumer debts must pass the means test , or face a motion to dismiss the case or to have the case converted to another chapter, like Chapter 13.

The debtor must also file paystubs from the past 60 days prior to filing the petition with the most recently filed tax returns.

After about a month the debtor will be required to attend a meeting called the 341 Meeting of the Creditors, where the Trustee assigned to the case will ask the debtor a number of questions about their finances. Generally this meeting is very brief, especially in case where there are assets involved. 

After about three to six months of filing of the debtor’s petition, the debtor will obtain his discharge.    The main reason why a bankruptcy case might be delayed is because certain creditors might object to the Debtor’s discharge or because the Trustee wants to investigate whether the Debtor has any non exempt personalproperty. If you have any other questions about the filing of bankruptcy, please do not hestitate to give me a call.


Monday, May 2, 2011

Should I draft or create a Cohabitation Agreement with my partner (Heterosexual or LGBT) in New York? By Brooklyn Divorce Lawyer

Hello, my name is George M. Gilmer, Esq. I am a Matrimonial and Divorce attorney with law offices in Brooklyn, New York. A relationship often starts off in a whirlwind manner.  Emotions are high and love has been considered by many sources to be temporary insanity.  When and if this relationship breaks down, the person you once loved can very easily become your enemy.  The urge for revenge and for blame is high and the feeling of giving too much and not getting enough back permeates the air.

With this flowing emotion, wise people, whether you are a heterosexual couple or LGBT couple, before “shacking up” with someone, it might be wise to enter into an agreement that solidifies the rights and responsibilities of both parties, so if the relationship does break down, the contributions made toward the partnership and the responsibilities flowing therefrom will be recognized by law.

New York State does not recognize common law marriages. On June 24, 2011, however, the Republican-led Senate in New York voted to legalize same-sex marriage, delivering to gay-rights advocates a hard-fought victory.  Marriage gives rise to certain rights for both parties but unmarried cohabitants do not have many of the rights afforded to married couples.  A cohabitation agreement can give rights to unmarried individuals that are analogous to the rights afforded to those that are married.

For example, marital property laws do not apply to unmarried couples, i.e. the laws of equitable distribution.  Thus if one partner in a relationship builds money in a bank account in part due to the support and contributions of another partner, if no joint bank account was created, the partner with the name on the account will be entitled to all of the money in the account without any written agreements to the contrary.  This could be a stinging blow to the person that did not save up, who might be left “high and dry” after the end of a relationship despite making significant contributions to the economic and professional growth of their former partner.

Another example is where a couple may purchase a home.  For various reasons, only one person’s name may be placed on the deed of the property.  In a marriage, if the property was brought during the marriage, then it will be subject to Equitable Distribution laws and the spouse not on the deed will be entitled to a legal determination of his or her share of the property.  In an unmarried situation, the partner in the relationship without the name on the deed, despite making various economic and noneconomic contributions that lead to the purchased of the property, may not be entitled to anything if the relationship ends.

Writing a cohabitation agreement will require you and your partner to talk at length about the issues important to you and to come to a joint understanding. Most importantly, issues of property and money always should be mentioned in these agreements. Don’t get bogged down in such issues such as household chores, cooking and sexual services because a contract involving these issues will most likely (especially one involving sexual favors) not be enforced in a court of law.

It is strongly advised that both sides obtain an experienced lawyer to review the cohabitation agreement. In my opinion, a clause regarding mediation or some other form of alternative dispute resolution should be included in the agreement. If a modification of the agreement, it should be in writing.

If you would like a cohabitation agreement drafted, contact George M. Gilmer, Esq., a Brooklyn, New York Family Law and Matrimonial Attorney.


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