Wednesday, November 16, 2011 Same sex marriage equality and Defense of Marriage, Matrimonial Attorney, Brooklyn, NY
I am a Brooklyn, New York City Matrimonial Lawyer. 1-718-864-2011. A number of my LGBT clients currently in same sex relationships ask me this question, now that I can get married in New York, will I have equal protection under the law?
MARRIAGE EQUALITY ACT VERSUS DEFENSE OF MARRIAGE ACT
Off the top I explain to them that although New York performs and recognizes same sex marriages, there are many other states that don’t and the Federal Defense of Marriage Act does not force these states to recognize marriages performed in other states. In other words, the DOMA says that non recognizing states do not have to offer full faith and credit to states the do perform and/or recognize same sex marriages (there are some states that recognize but will not perform same sex marriages).
The Marriage Equality Act states that the same laws that apply to Husband and Wife now apply to same sex spouses. A small exception is that the clergy in New York does not have to perform a same sex marriage. Thus same sex couples that are married will now have the same rights and obligations in New York that Husband and Wife will have.
A spouse married in New York has many rights. First of all, a spouse married in New York cannot be disinherited by the other spouse. A surviving spouse has the right of election if not included in the other spouses will. Secondly a spouse in New York has a right to the health care insurance of the other spouse. Thus in the event of a divorce or the death of the other spouse, the spouse without insurance will have the right to be covered under COBRA for up to three years. Thirdly, married couples have the right to hold property as “tenants by the entirety.” This means that the married couple holds the property as an undivided whole and when the other spouse dies, the living spouse house a "right of survivorship," the right to the entire property undivided. Fourthly, a spouse has the right to make health care decisions for the other spouse. Finally a spouse cannot be forced to testify against another spouse in court, this is called the spousal privilege.
Spouses also have a number of obligations as well. Most importantly a spouse has the duty to support the other spouse. This is accomplished through the maintenance laws of this state. Joint marital debts can be collected against both spouses as well.
Despite the rights of spouses in New York mentioned above, the Defense of Marriage Act effectively limits the “bundle of rights” that same sex couples. If a same sex couple decides to move to another state that does not recognize same sex marriage, they could face a number of legal challenges. Also even if this couple stays in New York State they will also have many issues. First of all, and a huge issue with same sex marriages is that same sex couples are not treated the same under the United States tax Code as married couples because Federal Law does not recognize same sex marriage. A same sex spouse of a Federal Employee will not be able to benefit from health insurance and pension rights in the same manor of a heterosexual couple. A same sex spouse will not be able to take off work to take care of a sick spouse under the Family and Medical Leave Act. Heterosexual couples have this right. A same sex spouse cannot petition for Immigration benefits, such as Permanent Residence, for their spouse, a heterosexual couple can. A same sex spouse is not entitled to military benefits. Finally, married couples can make property transfers to each other without having to worry about the Federal Estate tax because of the marital deduction. Same sex couples do not have the marriage deduction because Federal Law under the Defense of Marriage Act does not recognize them as married.
One way around the may DOMA problems that arise from same sex marriages is a prenuptial agreement for same sex couples. If you decide to do a prenuptial agreement it is very important that you each party has his or her own attorney and that both couples are given full financial disclosure. Full financial disclosure means that your spouse should tell you everything about their financial situation, what they are walking into the marriage with. If you plan to move out of state, although the Marriage Equality Act will enforce your agreement in the state other states might refuse to enforce it if the consideration (or the quid pro quo) for the agreement was the marriage. For example, in exchange for marrying me, I agree to pay you maintenance in a certain amount if we break up. In a state that does not recognize same sex marriage this might not be seen as valid consideration. Therefore, it might be wise to entitle the agreement, a Cohabitation Agreement. Furthermore, a prenuptial agreement might help resolve some of the tax issues that might arise regarding property transfers. For example, if Jim and John decide to get a divorce, and John agrees to give to Jim a house settling the equitable distribution issues surrounding the marriage, then Jim and John, unlike hetero sexual married couples will face tax consequences. A prenuptial agreement can be used creatively to avoid tax consequences. For example, instead of property transfer, John could agree to keep the house in his name but pay the mortgage for Jim to keep him in the property. This is not a perfect solution and the repealing of DOMA would be the only way to ensure that heterosexual and LGBT couples are treated equally under the tax code.
Another problem arises with custody and visitation issues. If a same sex LGBT married couple decides to have a baby (let’s call this couple Jane and Joan) and Jane gets artificial insemination. Jane will be considered the biological parent. Joan under New York’s Marriage Equality Act will be recognized as the parent of the child and would be able to assert the same rights that a heterosexual couple would be able to assert. If this couple moves to another state that upholds DOMA then Joan may not be recognized as the parent and as such might have a problem seeking custody or visitation in the event of a break up or divorce. Because of this legal hurdle I would strongly recommend a second parent adoption to be done by Joan to protect her rights.
There are some other equitable distribution issues specific to same sex couples. For heterosexual spouses the transfer of assets is a non taxable event. Under DOMA, same sex couples are essentially seen as strangers and a transfer of assets may be looked at as a third party sale. Federal law also allows heterosexual couples roll over IRA’s and transfer retirement accounts via a Qualified Domestic Relations Order tax free. Same sex couples may face tax consequences at the Federal level if these assets are transferred because the government does not recognize same sex marriages. The government may impose a gift tax on transfers exceeding $13000. Due to DOMA and without a good prenuptial agreement many same sex couples may have to opt to keeping their assets separate to avoid tax liability for transfers.
Furthermore, one of the obligations of a marriage is to provide support to the other spouse. Thus, a monied spouse may be required to pay the less monied spouse maintenance. For heterosexual couples, the person paying maintenance gets to make a tax deduction on their Federal taxes and the person receiving it will have to pay taxes on what is received. For same sex couples, the person paying the maintenance does not get to make the deduction and to add insult to injury the person receiving it still has to claim it on their taxes.
Also a heterosexual spouse is entitled to receive social security benefits of the other spouse after ten years of marriage. A same sex spouse will not have this right.
As you can see many complex issues arise involving same sex marriage when the Defense of Marriage Act is applied. If you have any further questions about same sex marriage, please contact me, George M. Gilmer, Esq. and would be happy to answer your questions.
Monday, October 31, 2011 How do I file for or get a Divorce? Brooklyn, NYC Uncontested Divorce Attorney. Low Fees, Inexpensive, Great Service! No Fault, No signature required.1-718-864-2011
Many people are scared off by the possibility of getting a divorce because of the cost of retaining an attorney. Even as lawyer, I certainly would feel uncomfortable paying thousands of dollars for a simple divorce, especially when no children or property is involved.
I perform simple uncontested, no fault divorces at fees that compete or are lower than some paralegal services. I do not believe that simple divorces should cost big money. I am going to explain the divorce process below so you can understand the steps and make an informed decision prior to hiring an attorney or a paralegal service. Also remember, that if you hire an attorney or even a paralegal service, it is wise to hire someone that is familiar with the local procedures. For example a Brooklyn, New York City attorney may be more familiar with the divorce practices in Brooklyn and the other four boroughs.
The first step is the decision in getting a divorce. It is unfortunate but 50% of all marriages lead to divorce. Why this happens is not the subject of this article. This article will however help you determine whether your divorce will be contested or uncontested.
First of all, you should ask yourself, do you get along with your soon to be ex? I know this may sound like a dumb question, “Why would I be getting a divorce if I got a long with my spouse,?” but under some cases, couple get along well enough to make the mutual decision that “enough is enough.” This is generally the case when no children or property is involved. Another scenario is when there has been a long term separation, giving time for the wounds inflicted in the relationship to heal, couples are much more likely to sit down and work with each other. Sometimes couples go through marriage counseling and mediation prior to making the decision. These scenarios make it more likely that you will be able to get an uncontested divorce based upon the no fault grounds in New York City.
If there are domestic violence issues I strongly advise you to consult an attorney (and if you are in immediate danger, contact the police), prior to filing a divorce. Your lawyer might advise you to file a Family Offense Petition prior to or simultaneously with the filing of your divorce (via a procedure called Pendente Lite). If domestic violence exists I would advise you also to seek exclusive occupancy of the marital residence if your spouse still lives with you. I would recommend this because the filing of the divorce could escalate the abuse in the home. The procedure for obtaining an http://ppdsurvivor.blogspot.com/2010/06/today-i-dismissed-order-of-protection.html Order of Protection in Family Court and Supreme Court will be discussed in another article.
You will get an uncontested divorce if there are no disagreements between you and your spouse over any financial or other divorce related issues like marital property, custody, visitation or maintenance. Once you file your paper and serve your spouse with these papers your spouse will have certain amount of time to contest or fight the divorce. If your spouse is fighting the divorce or you do not think you can get an agreement on any of the above issues you can contact me George M. Gilmer, Esq., a Brooklyn, New York City Divorce Attorney at 1-718-864-2011.
If there are issues involving child custody and support, spousal maintenance, equitable distribution, insurance, marital debts, and Orders of Protection, you may need the skill and expertise of an attorney. If your divorce does not involve these issues, you can choose to hire an attorney to do the paperwork for you but you will not need to pay mega bucks for a divorce of this type. I often charge between $750 and $850 total all fees included for an Uncontested No Fault Divorce with no children or property.
If you decide to represent yourself or hire a paralegal service to do your divorce work for you, buyer beware, because you may risk losing certain rights that are derived from the marital relationship that are not readily apparent to a person who is not an attorney. For example, if your spouse has a pension and you do not seek it in your divorce proceeding you may lose your claim for it. The same may hold true for any other assets not in your name but that could potentially be classified as marital property (like a house bought during the marriage but not put into your name). Finally if you cannot locate your spouse, then you may need to figure out an alternative mode of service of the legal documents. Please see my blog on “how do I get a divorce if I cannot find my spouse.”
If you are filing for divorce, below is a list of papers that must be filed with your Uncontested Divorce Packet. This list is pretty thorough but not completely exhaustive.
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Summons with Notice
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Verified Complaint
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Affidavit of Service
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Sworn Statement of Removal to the Barriers of Remarriage
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Affirmation or Affidavit of Regularity
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Affidavit of Plaintiff and Affidavit of Defendant
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Child Support Worksheet
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Support Collection Unit Information Sheet
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Qualified Medical Child Support Order
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Note of Issue Finding of Fact /Conclusions of Law
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Judgment of Divorce
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Part 130 Certification
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Request for Judicial Intervention
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Notice of Entry
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Certificate of Dissolution
Filling out these forms can be stressful and time consuming. If you don’t have the time or don’t want the stress, please call my office at 1-718-864-2011 if you want to set up a free phone consultation. I can make the processing of your divorce go quickly and stress free.
George M. Gilmer, Esq. Brooklyn, New York City Uncontested No Fault Divorce Attorney.
Wednesday, October 26, 2011 Can I relocate with my children? Brooklyn Family Court Attorney and Matrimonial Lawyer. 1-718-864-2011
As a Custodial Parent can I relocate with my children out of state?
Imagine this scenario. You are living with your child, have very poor economic circumstances and are offered a job out of state. The parent of your child(ren) is a good one, he or she visits with them quite frequently and plays a big role. You want to move because of the opportunity that is offered to you and your family. What will the court do?
In Tropea v. Tropea, a New York decision, the Court decided that five factors must be determined before a person is granted that ability to relocate with their child.
REASON FOR THE MOVE
The Court will first look at the parent’s reasons for seeking the move. Let’s assume here that you have hired a lawyer. Your lawyer will argue that you have a new job and thus the move is necessary. The non-custodial parent’s lawyer will question whether the type of job (i.e. pay scale) you are moving to is one that cannot be obtained here in New York.
QUALITY OF RELATIONSHIP BETWEEN CUSTODIAL AND NON CUSTODIAL PARENTS
Secondly the court will consider the quality of the relationship between the custodial and the non custodial parents. If there is a poor relationship between the parents and it appears that the custodial parent would not make an effort to maintain the relationship between the child (or alienate the child) and the non custodial parent after relocation, then the family court might may not allow the relocation. The attorney representing the non custodial parent would argue that the move would harm the child(ren) because parenting time with the child and the non custodial parent will decrease and in the custodial parent will not make best efforts to maintain your relationship with the child because of this poor relationship.
IMPACT THE MOVE WILL HAVE ON THE QUANTITYAND QUALITY OF FUTURE VISITS
Thirdly, the court would look at the impact of the move on the quantity and quality if the child’s future visits with the non custodial parent. Here the custodial parent’s attorney might advise his or her client to offer to the non custodial father expansive visitation rights during times (this mainly involves school age children) that the child is on vacation, i.e. winter, spring and summer breaks. The attorney for the non custodial parent might say that this type of arrangement might be harmful to the child because the visits need to be more frequent and consistent. I think that the court would agree with this opinion.
DEGREE TO WHICH THE CUSTODIAL PARENT’S AND CHILD’S LIFE WILL BE ENHANCED
Fourthly the court is also required to look at the degree to which the custodial parent’s and child’s life will be enhanced, economically, emotionally and educationally by the move. Here, let’s assume that there was domestic violence in the home that the custodial parent and the child witnessed, perpetrated by the non custodial parent, that the job would give the custodial parent a significant pay increase and that the family is moving to a better school district. Here the custodial parent’s attorney would argue that the move is justified because economically the family benefits from the pay increase, emotionally because they are away from an abusive household and educationally because they live in a better school district.
FEASIBILITY OF PRESERVING THE RELATIONSHIP
Finally the fifth and final factor is the feasibility of preserving the relationship between the custodial and non custodial parent and child through suitable visitation arrangements. Here let’s assume that the custodial parent moved wants to move from New York to Hawaii. Let’s also assume that the non- custodial parent works a minimum wage job and could hardly afford rent let alone plane tickets to Hawaii. Here, the non custodial parent’s attorney would agree that visitation between the child and he or she would be virtually impossible and thus it is very unfeasible that any suitable visitation arrangements can be made.
ROLE OF THE ATTORNEY FOR THE CHILD
The attorney for the child represents the child and thus weighs in with the child’s opinion concerning the move. It is the attorney for the child’s job to consult and advise the child consistent with the child’s capacities and have thorough knowledge of the child’s circumstances. If child is able to be a knowing, voluntary and considered decision about relocation, then child’s lawyer is supposed to advocate for this position even if she does not agree with the child. If the child can’t make such a decision then the child’s lawyer can argue a position he or she believes is in the best interest of the child.
One final note. Relocation is a very complicated issue and courts do not look kindly on parents that just pick up and leave without either getting the other parent’s permission or court permission.
If you have any further questions about relocation, please contact me, George M. Gilmer, Esq. a Brooklyn, New York City Family Court attorney.
Friday, October 21, 2011 How do I win my Custody Trial? By Brooklyn, New York City Family Court Lawyer
Many clients want to know how they can "win" their Family Court case. I often tell my clients that there are often on clear winners in these papers. Abraham Lincoln said "discsourage litigation, persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough."
I am a firm believer that most cases can be settled so long as both sides have competant represenation that is familar with all of the issues involved in the case. Don't get me wrong, some case must go to trial, but I always encourage my clients to hear the other parent's fully before making a decision.
Some people are of the position that custody proceedings are corrosive to parents and toxic for chidren and that a custody case should not be tried.
Friday, July 01, 2011 New York passes Same Sex Marriage Equality Act of 2011. By Brooklyn, New York LGBT Family Law and Matrimonial Attorney.
On June 24, 2011 Governor Andrew Cuomo signed into law the right of same sex couples to get marriage licenses. The law will go into effect on July 24, 2011. New York will be the sixth and the most populous state (19.4 million residents) to do so. Iowa, Vermont, New Hampshire, Massachusetts and Connecticut issue marriage licenses to same-sex couples, as does the District of Columbia.
Many believe that the passing of the law gives momentum to ending marriage discrimination at the state and federal level. Prior to the passing of the law most New York City employers already offered equal benefits to couples in domestic partnerships. Many see the federal recognition of same sex marriage as an uphill battle. Matter of fact in 2006, the New York Court of Appeals ruled that there is no constitutional right to same-sex marriage in New York. Some opponents of same sex marriage support a U.S. constitutional amendment defining marriage as between a man and a woman. Matter of fact, gay marriage is banned in 39 states in this country.
Another complicated legal issue is the legal rights New York same sex couples are afforded in states that do not recognize same sex marriage. Two constitutional principles arise, full faith and credit and equal protection. The Full Faith and Credit Clause—Article IV, Section 1, of the U.S. Constitution—provides that the various states must recognize legislative acts, public records, and judicial decisions of the other states within the United States.Although the Full Faith and Credit Clause has been applied to family issues such as Order of Protection, the Violence Against Woman’s Act, and child support it is unlikely, unless the Supreme Court strikes down all laws banning gay marriage, that States are going to be required under Full Faith and Credit to recognize any marriage they don’t want to. Presumably states that don’t recognize gay marriage will be expected to recognize gay marriage pursuant to the equal protection clause.
It is clear that most of the opponents of gay marriage based this opposition upon moral or religious grounds. As a way to balance the various interests involved, an agreement was reached on more protections for religious groups that oppose gay marriage and fear discrimination lawsuits.
The Law Office of George M. Gilmer drafts prenuptial agreements (“prenup”), cohabitation agreements and practices matrimonial law. Please stay tuned for future articles in these areas. I have over ten years of legal experience. Contact me if you have any other questions concerning same sex marriage.
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. |