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Bankruptcy

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.

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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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Thursday, November 7, 2013

Filing for Bankruptcy in New York

What exactly is Bankruptcy?

Bankruptcy can offer a fresh start. A way to get out of crushing debt or recover from a difficult life situation including:

-        Severe illness resulting in mountains of medical bills

-        An expensive and/or drawn out divorce

-        The loss of their job or other primary source of income

-        A fire, flood or other disaster that destroys their property

Regardless of the reasons behind a person seeking to file bankruptcy, the process itself is the same. There are two different types of personal bankruptcy, Chapter 7 and Chapter 13.

Chapter 7 “Straight” Bankruptcy

Chapter 7 bankruptcy allows a person to completely eliminate their debts, but the person filing usually must be earning less than the median income of a household of equal size of within New York state. Alternatively, a person making more than the median income of a household of equal size can attempt to qualify for chapter 7 bankruptcy by filling out a relatively complicated form that calculates how much money would be left if the filer were to make payments on all of their debts for the next few years. This combination of benefits and qualifications make Chapter 7 bankruptcies a powerful tool for people who have lost their jobs and no longer have the income to repay their debts.

Chapter 13 “Restructured Debt” Bankruptcy

Chapter 13 bankruptcy is geared more towards people who still have a primary source of income that would normally allow them to pay the bills of an average household their size, but who have gotten into such a bad financial situation that even their income is not enough to pay their bills.

Rather than wiping out the debt completely, the bankruptcy court will restructure the filer’s debt so that it becomes manageable. The process usually involves a reduction of the total amount of money owed along with a reduction in the monthly payments required to stay current on the debt. If the bankruptcy court believes that the filer’s income is enough to allow them to make payments on some of their debts while maintaining a reasonable standard of living, it may make the filers go with a Chapter 13 bankruptcy rather than a Chapter 7.

How Bankruptcy Affects Your Property

People are often concerned that in order to file for bankruptcy that they must give up nearly all their possessions and eliminate any and all luxury expenses from their monthly spending. While it’s true that some assets can be subject to the terms of a bankruptcy, often those assets needed for filers to keep their job, shelter their family, or provide their household with other basic needs are exempt from being taken by creditors. See our discussion of which assets are protected by bankruptcy (hyperlink to property blog) to learn more.

Learning More About Bankruptcy

If you’d like to learn more details about what bankruptcy involves you can also visit the United States Federal Courts website to look at some of the rules and/or forms that are involved. Bankruptcy is not for everyone with debt, but for some people who find themselves owing debts that they stand no real chance of ever being able to pay off, it can offer relief and a chance to start over.

Regardless of which type of bankruptcy you are considering, finding an experienced bankruptcy attorney in your area to learn more about what the bankruptcy process involves is always a good idea and we are happy to answer your questions, so feel free to give us a call!


Tuesday, October 30, 2012

How do I get my bank account released after it has been frozen by a creditor? 718 864 2011 By Brooklyn, New York City Credit Repair Attorney

My name is George M. Gilmer, Esq. and I have my Law Office at 26 Court Street, Brooklyn. Is your bank account currently frozen?  Do you have a legal judgment against you by default?  Are your wages  being garnished?  Do you want to legally and legitimately  clean your credit  (known as “credit repair) because of an improperly obtained judgment? I am a Brooklyn Credit Repair Lawyer.  My office is a Debt Relief Agency under Federal Law.


Read more . . .


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.


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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