718.864.2011 Request a Consultation

Mark Gilmer, Esq.

Monday, November 11, 2013

Bronx ACS Oversteps Its Boundaries for Many Families

The 10-year-old girl's mother thought she was doing the right thing when she revealed to her NYC ACS caseworker that she often felt frustrated with her daughter's tantrums. 

The girl had been diagnosed with ADHD. The agency had been involved with the mother due to the domestic violence she and her daughter had suffered at the hands of her former boyfriend. The agency was supposed to be providing "preventative services" to the mother and child. These would be things like assistance with counseling, transportation and  housing. She never dreamed that confiding in the child welfare worker would result in her daughter being taken from her. But it's been nearly five months now that her daughter has been in foster care, and her mother is still fighting to get her back. 

Our Bronx ACS lawyers recognize that this may be an all too common scenario. Case workers are trained to work closely with families in need. They gain the trust of the families with whom they work. The problem is that many of these caseworkers are often over-worked and underpaid. They don't always have the time or resources to launch a proper abuse or neglect investigation. But they don't want to be the one left holding the bag if something happens to the child. Believe it or not, it becomes easier to simply have the child removed. 

As was recently reported by Al Jazeera America, the majority of families ensnared in New York's Administration for Children's Services arm are economically disadvantaged minorities. In addition to being misunderstood by case workers, they can be targeted by vindictive exes, nosy neighbors or well-meaning but mistaken teachers. 

One option for children fighting to regain custody of their children is a program called the Child Welfare Organizing Project. It's a peer-to-peer guidance and counseling operation that offers an outlet for parents accused of neglect or abuse. Fellow graduates are then asked to attend the child safety conferences of their peers.

The program was founded in 2007 in Harlem. Records show that in looking at data from 2010 to 2012, those parents who were involved in CWOP lost custody of their children in 15.5 percent fewer cases. A similar program offered by the Center for Development and Family Services Inc. is available in the Bronx, Staten Island and Manhattan. 

What is likely to help to an even greater degree would be the involvement of a Bronx attorney experienced in handling ACS cases. While a parent peer advocate can attest to the judge your commitment to improved parenting, your attorney can aggressively challenge any unsubstantiated claims, request certain claims be returned unfounded and ask that your record be expunged. 

The good news is that the ACS workers have become less inclined than they were just a few decades ago to put children in foster care. Where there were 50,000 children from New York City in foster care back in the early 1990s, that figure is now down to about 12,100. 

Still, for those families embroiled in the system, it can have a profoundly damaging effect. 

We are dedicated to helping families reunite - and remain together. 

If you are the subject of an ACS investigation in the Bronx, call our offices at (718) 864-2011.

Additional Resources:

Can parents accused of neglect redeem one another? Oct. 9, 2013, By E. Tammy Kin, Al Jazeera America

More Blog Entries:

Brooklyn Child Custody and Abuse Claims: Proving Your Case, Sept. 18, 2013, Bronx ACS Lawyer Blog


Monday, November 11, 2013

What is a Green Card? How do I get a Green Card in New York?

Green Cards in New York

What are Green Cards?

A Green card,  known as Unite States Permanent Resident cards, are identification cards that indicate, though the person identified on the card is not a United States citizen, they are still authorized by law to live and work within the U.S. on a permanent basis. Many look at green cards as an important step towards someday becoming a full-fledged U.S. citizen.

Who can get a Card?

Family Members of U.S. Citizens

One of the most common ways for people to get a green card is for them to apply for it based on the citizenship of one of their family members. A person may be qualified to apply for a green card if they are:

  • An immediate relative of U.S. citizens such as spouses, children, and parents
  • A family member of a person who fits in to a “preference category” such as a brother and/or sister over 21 years of age, married children of any age, and unmarried sons/daughters over 21
  • Family members of green card holders

There are also a number of special categories that a person may belong to making them eligible for a green card. Many of these categories are tailored towards vulnerable persons who are or were related to a U.S. citizen and towards people who have suffered domestic abuse. These special categories have additional requirements on top of the basic green card qualifications and are more difficult to get.

People Offered Jobs within the U.S.

Certain jobs that are offered to non-citizens within the United States may help a person qualify for a green card. With the employer’s cooperation, non-citizens who are offered a permanent job within the U.S. can apply for a green card. The application process is sometimes burdensome for the employer, so it is important to make sure that you establish in advance that your employer is willing to work with you throughout the green card application process if you are offered a permanent job within the U.S. and are considering accepting it partly because you want a green card.

Also in the job-related category of green card candidates are those individuals who have a special skill set that is in high demand within the U.S. or those whose investment creates jobs within the U.S. Additionally, if a person interested in a green card has established himself as an Alien of extraordinary ability or has received a National Interest Waiver, he or she may also qualify for a green card.

People Granted Asylum or Refugee Status

People who have already been granted entrance to the United States based on their status as asylum-seekers or as refugees are eligible to apply for a green card after living in the U.S. for at least a year. People granted refugee status are known as refugees, while those who are granted asylum are known as asylees. The ability to apply for a green card after a year of residency within the U.S. may also extend to family members of asylees and refugees. It’s important to note that if you are allowed in to the U.S. as a refugee you must apply for permanent resident status after living in the U.S. for 1 year.

Other Ways to Become a Permanent Resident

There are a number of other ways to get a green card, but they are the exception rather than the rule when it comes to being granted a green card. Because family, asylum and refugee status may affect the success of a green card application, working with an experienced attorney is the best way to determine whether or not someone is qualified to apply for a green card in the United States. 

Thursday, November 7, 2013

Should I file for Custody and how do I win a custody battle?

Custody battles can be difficult to win and emotionally breaking.  Hiring an experienced child custody attorney is your best assurance of a positive outcome.  A NYC family law attorney can protect your legal rights, but it’s up to the client to take a few steps toward obtaining your goal.

Act First

Anytime a parent senses unusual tension between themselves and the other parent, talk to them about it and try to resolve it civilly.  If it appears that legal action must be implemented DO NOT wait until your ex-spouse hires a family custody lawyer and takes action first.  You need to take the first legal step and locate a New York custody attorney immediately to file a custody motion in the appropriate jurisdiction.  Parties attempting to save a little money and file paperwork on their own may end up making mistakes.  Individuals not familiar with the law unintentionally prolong the legal process.  For example, filing a Petition regarding custody at the wrong jurisdictional location can set a parent back months from obtaining custody of their child. 

Pay Child Support

During the early stages of a family separation child custody and child support are two legal issues most parents are concerned with.  Parents currently not living with their child and have no order of support against them are recommended to still pay something towards child support.  Always pay with a check or money order and never with cash.  Keep all receipts and a record of payments made for evidence.  Paying child support shows the court you truly have your child’s best interest in mind. 

No Arguing

Do not argue with the other parent, especially in front of your children.  New York family court judges look down on parents that cannot hold their temper and emotionally abuse their children.  Save all major conversations for a time when the children are not around, or handle those discussions over the telephone.  Anytime your ex-spouse wants to argue with you simply hang up and keep a record of the call.  This is evidence to protect you in case the other parent attempts to fabricate the truth during a custody action.

Keep Records

Always keep accurate and current records and receipts of child support payments, dates of each visit and activities with your children, receipts of gifts purchased, and a summary of conversations with your ex-spouse, along with the day and time.  Anytime you feel uneasy about a conversation let someone in your family know about it.  It’s helpful when another party is aware of the difficult time your ex-spouse is giving you during a legal battle. 

Contact Police

If after having a conversation with your ex-spouse you feel uneasy or if they have made threats towards you, contact the local police and make a report.  This is important not only for your safety, but it builds a history of harassment and threatening behavior against the other parent.  Not every time you contact the police will they be arrested, but obtaining a police report with the details of the incident is key evidence in any child custody case.  In serious cases the police will make an arrest and guide you on how to obtain a restraining order against the other parent.

Visit Children Often

One of the worst actions a parent can do during a child custody case is not visit their children and not show up for scheduled visits.  This hurts your children and shows the court you may not be serious about custody.  Your ex-spouse is keeping a record of each visit you miss and call you do not answer.  This will be used against you in court and is difficult to defend.  If you have to work and know in advance then simply call the other parent and reschedule as soon as you find out.  Then explain this to your children so they know it isn’t their fault.

Go To Court

Do not show up late when you appear at court.  Ensure you look in the mirror several times before leaving the house.  Showing up at court with ripped jeans or a work uniform on does not impress the judge.  Find your nicest suit and newest shoes.  If you do not have a suit then look for something in your closet that is clean, ironed, and without holes. 

A NYC family law attorney will explain the importance of all the steps written above.  Contact only an experienced custody lawyer in New York to handle the future of your family.  Attorney Gilmer of Brooklyn, NY ensures his client’s rights are protected and the best possible outcome is obtained.


George M. Gilmer, Esq.

26 Court Street

Brooklyn, New York 11242


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!

Thursday, November 7, 2013

Battling False Abuse Reports to New York's ACS

Our community undoubtedly has an important responsibility to protect children suffering from abuse and neglect at the hands of their parents or caregivers. 

That said, our New York City ACS attorneys know that far too often, innocent children are harmed by false reports of abuse and neglect, filed by individuals whose goal is revenge. Once such an allegation is made and this vast bureaucracy is involved, it can be exceedingly difficult to put the episode behind you.

The non-profit City Limits project of Community Services Society of New York recently examined the issue of false reporting in an article aiming to spotlight how this problem hurts not only the parents, but the children too. 

Among the scenarios described to reporters:

  • A landlord who contacted ACS on his tenant for child neglect on numerous occasions - each coinciding with incidents in which the tenant's housing support check wasn't coming through;
  • A neighbor who contacted ACS alleging child neglect by another neighbor, shortly after the two had quarreled over a missing phone call;
  • A homeless shelter resident calling ACS for child neglect on another resident regarding her 15-day-old son, who was removed from his mother's for five days and endured a six-month investigation before the case was ultimately dismissed. The caller was reportedly jealous of the mother's relationship with her boyfriend. 

In many cases, adoptive and foster parents have been the target of such vitriol, mostly by biological parents who are unable to avail themselves of any other avenues of recourse. There have even been extreme cases in which some individuals have dozens of reports filed against them in a single month's time. 

There have been other reports in which victims of domestic violence became the target of such action, perpetuated by their aggressor. In these scenarios, the abuser may use the threat of ACS action to keep the victim in the relationship. The victim doesn't want to lose her children, so she stays with someone who may in fact be perpetuating even more harm. Batterers know they don't need much evidence for an investigation to be kick-started. 

There are no clear-cut answers for just how many false reports the agency receives in any given period. We know that about 60 percent of reports are unfounded, but not all of those are malicious.

However, vengeful abuse reporting is a phenomenon with which even the social workers are quite familiar. Still, they are bound by the law to investigate claims of abuse and neglect. Even if they suspect the report may be false, they still have a duty to initiate an investigation. Nobody wants to be responsible for leaving a child in a potentially dangerous situation. 

State law does require the agency to send reports it believes to be maliciously false to officials with the District Attorney's office. However, it's rare that they take this action, and it's even more unlikely that such a case would go to trial. 

This is not to mention the fact that such calls can be made anonymously - and many are. 

The situation can be compounded when the target of such action is enduring a real struggle, such as depression or homelessness. They may find it difficult to fight. 

But that doesn't mean it's impossible. Our experienced ACS attorneys are committed to ensuring that such false reports don't continue to plague you. Call us today for more information about how we can help. 

If you have been the target of ACS abuse or neglect reports in New York City, call our offices at (718) 864-2011.

Additional Resources:

False Abuse Reports Trouble Child Welfare Advocates, Oct. 4, 2013, By Rachel Blustain, City Limits

More Blog Entries:

Brooklyn Child Custody and Abuse Claims: Proving Your Case, Sept. 18, 2013, New York City ACS Lawyer Blog

Monday, November 4, 2013

Study: Divorce is Contagious

A person can be vaccinated against everything from tetanus to the common flu. However, when it comes to divorce, immunizing yourself may prove a bit trickier, according to a new study from the Pew Research Center. 

The research team from Brown University in Rhode Island examined three decades of marriage and divorce data from a city in Massachusetts in reaching its conclusion: Study participants were 75 percent more likely to become divorced if a friend also became divorced, and 33 percent more likely to split if a friend-of-a-friend did so. 

The study, "Breaking Up is Hard to Do, Unless Everyone Else is Doing it Too: Social Network Effects on Divorce in a Longitudinal Sample," was published in October. Our Brooklyn divorce attorneys  understand that these "divorce clusters" extend between two degrees of separation within a person's social network. When divorce is more socially acceptable, the move can seem less drastic, laden with far less drama. 

The sociologists call this phenomenon "social contagion." It's essentially the proliferation of attitudes, behaviors and information through families, friends and other social networks. Those networks have expanded in recent years due to networking outlets such as Facebook and Twitter, which allow us to collect hundreds if not thousands of friends and acquaintances. 

Researchers say divorce isn't the only arena where we see this phenomenon take hold. For example, it's been noted in teen sexual behaviors, childhood obesity and  "phantom diseases" that  spread in the workplace. Some have even noted that siblings are more likely to conceive children soon after their brother or sister gives birth. 

The study authors in this case based their findings on data collected from the "Framingham Heart Study," which is one of the longest-running longitudinal surveys every conducted in the country. It was originally started in the late 1940s as a means to measure heart disease. However, a myriad of information was collected from study participants and marriage, divorce and social ties data was included.

The sample worked out well because the size of the sample in the Massachusetts city was relatively large, while the overall population there is relatively small. That meant that many of the study's participants were relatives, friends or friends-of-friends. On average, each study participant could name 11 others in the study. 

The information from this study first started being gathered from participants in the early 1970s and spanned through the early 2000s. 

Researchers cautioned that while the study group isn't necessarily representative of the nation overall, there is no reason to believe the results wouldn't be reflected if the study were to be expanded nationally. 

What they found was that the divorce of a close relative or friend "significantly" increased the probability of a divorce. 

One theory for why this might be is that those who are witness to a divorce may see up-close the potential benefits of refusing to remain in a loveless or broken marriage. While there are many studies that tout the many health benefits of marriage, they often fail to touch upon the health of those who are in unhappy marriages. However, there is plenty of research to suggest that staying in a marriage when you aren't happy can put you at increased risk for heart disease, depression, diabetes, arthritis and even cancer. 

While divorce is not what any of us had in mind when saying, "I do," there are many reasons why it could be the best course of action. Seeing that someone you know and love has done it and is not only surviving - but thriving - may well supply the courage you need to take that first difficult step yourself. 

We look forward to helping you on your journey to the next chapter. 

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

Additional Resources:

Is Divorce Contagious? Oct. 21, 2013, By Rich Morin, Pew Research Center

More Blog Entries:

Informal, Long-term Marital Separations Can be Risky, Oct. 23, 2013, Brooklyn Divorce Lawyer Blog

Friday, November 1, 2013

New York Gay Divorce May Present Additional Complications

When the U.S. Supreme Court ruled earlier this year that the Defense of Marriage Act was unconstitutional, it prompted many to hope that more than just 13 states and the District of Columbia would recognize same-sex marriages. 

In New York, same sex marriages became legal in June of 2011 under the Marriage Equality Act. (Massachusetts was the first state to approve same-sex marriage, when it did so in 2004.) For some, it marked the beginning of a dream they never believed possible. Of course, many who united in matrimony never believed they'd split up either. 

But today, those seeking a gay divorce in New York City may find the system provides some additional complications they could not have anticipated. This is true even for those who married in New York and have continued to reside here in the years prior to the break-up. 

A fair amount has been written about the difficulties faced by homosexual couples who may have married in New York (or some other states where the union was legal) and then moved to a state where such unions are not recognized. They find themselves in unfamiliar territory, with the courts unwilling or unsure of how to proceed. This has left some couples going from "I do" to "I'm done" feeling quite literally trapped. 

A New York gay divorce is not without challenges either, though there have been many couples who have successfully been through it. 

In fact, we're seeing the beginning of a gay divorce boom, according to numerous sources. The primary reason, of course, is that more couples than ever are eligible. According to the University of California Los Angeles' Williams Institute, some 50,000 of the approximately 650,000 gay couples in the U.S. got married in 2011. An addition 100,000 entered into some kind of domestic partnership or other legal relationship, as their state laws allowed. 

The second reason is that while the unions of many of the first wave of wedded gay couples are likely to last, that probably won't continue. Those who were the first to rush down the aisle had been waiting for years to have the opportunity to do so, often with the same partner. The newer wave of marrying gay couples is younger. Their relationships are not as long-term and therefore more likely to eventually dissolve. It may even end up happening at a higher rate than straight couples because of the extensive external difficulties and pressures that same-sex couples must endure. 

Even though same-sex marriages are legal in New York, same-sex divorces pose some unique circumstances for the courts. For example, a couple may have been together for many years prior to the marriage. They may have even registered with the state in a domestic partnership. They co-mingled their finances. They applied for joint credit cards. They bought houses together. They began raising children together. They were beneficiaries in each others' pensions and life insurance policies and wills.

In their hearts, they had been married for decades. But on paper, they've only been married a couple years, at most. As such, the division of assets begins only at the time the marriage formally began. 

Plus, those who married in New York may not longer live here when they decide to split. If their current home state does not recognize the union, they may have to return to New York to make it official. But New York has a residency requirement that at least one of the individuals have lived in the state for a full one year immediately prior to the divorce proceeding. Of course, this can be a hardship on those who have already worked to build a life elsewhere. 

There are also federal tax considerations that may result in additional complications, as well as child custody issues - particularly if one of the parties never formally adopted the child or children involved. 

Because of all these added layers of complications, even an uncontested divorce is likely to require an experienced family law attorney. We're here to help.

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

Additional Resources:

For gay couples, divorce comes with extra costs, Aug. 6, 2013, By Eun Kyung Kim, TODAY

More Blog Entries:

New York No-Fault Divorce In Its Third Year, Oct. 26, 2013, New York Divorce Lawyer Blog


Tuesday, October 29, 2013

Brooklyn Divorce Asset Division: Don't Overlook These Key Items

One of the greatest points of contention in any divorce is often how property will be divided. 

If your goal is to file for an uncontested divorce in Brooklyn, you and your soon-to-be-ex are going to need to be on the same page about how assets are going to be split. 

We have seen couples literally sit down with a checklist and hammer out each item, one-by-one. If your separation is an amicable one, this can be an easy, low-cost way to fairly divvy it all up. 

However, we do find that in the course of this process, there can be items that are overlooked or improperly evaluated. If the process starts to get too complex, you may want to seek help from a financial or legal professional to help you sort through the details. 

To begin with, understand that actual dollar values don't necessarily match what they might be on the surface. Let's say we're talking about a piece of real estate, a house, with an appraised value of $225,000. This could seem fairly straightforward, until you consider that you're actually underwater on it, having taken out a loan of $275,000. Or that approximately 10 percent of the sale price -- $25,000 in this case -- will be spent on the sale, including realtor fees and closing costs. Then you factor in rising property taxes and other factors, and this "asset" has become a liability. That's not to say that the two of you can't still reach a quick and reasonable agreement on the matter. It's just that both of you should have a full understanding of the shifting valuation. 

Of course, a house is one of those obvious assets that you're going to analyze. Where it can get especially tricky are those assets that are not necessarily tangible. 

For example, you don't want to forget benefits from former employers. Think retirement accounts such as 401Ks and pension plans, deferred compensation plans and stock options. Keep in mind again that the dollar amount of these accounts may be a bit misleading, so you may want to have them evaluated by a professional third-party. 

Beyond that, don't overlook memberships to things like golf courses and country clubs. You may never have cared much about this while you were married, but the truth is these clubs often cost a lot of money to join and maintain membership. In that sense, it becomes an asset to be divided. 

You'll also want to review any gifts you gave one another during the marriage. You may find those items aren't worth quibbling over (i.e., a piece of jewelry or clothing items). However, in some cases, these items have substantial value and they should not be overlooked. Even if you aren't interested in taking back the actual item, it can be considered a factor in how you divide other important assets. 

Don't forget also to take time to review any patents, trademarks, royalties or copyrights your spouse owns. Even if they aren't worth a lot now, they could be in the future, and you may want to make sure you continue to have a stake. 

Another item to keep in mind is money loaned to other people that will be repaid to your spouse. So let's say your spouse's brother borrowed $8,000 from you both during the marriage. He's continuing to pay that back to your spouse. You are entitled to a portion of that money. Inheritance is another matter that may add complexity.

Again, if you find some of this is getting to complicated or contentious, don't hesitate to ask for help from an experienced divorce lawyer, It may still be possible to have an uncontested divorce, but above all you want to make sure that your future is secure. 

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

Additional Resources:

Divorcing Women: Don't Forget These Marital Assets, Oct. 16, 2013, By Jeff Landers, Forbes.com 

More Blog Entries:

Divorcing But Still in Business Together: Our Brooklyn Divorce Lawyers Weigh In, Sept. 13, 2013, Brooklyn Uncontested Divorce Lawyer Blog

Saturday, October 26, 2013

New York No-Fault Divorce In Its Third Year

This month marks the third year of  no-fault divorce in New York, marking the passage of historical legislation that made this state the last in the union to pass such a measure. 

The intent of the law is to make it easier for couples to divorce, without having to ascribe blame to one party or another. It's not been without its hitches. Ultimately, however, it's an option that many soon-to-be-former couples are embracing, as it is generally cheaper, faster and less contentious than a traditional split. 

While we don't have updated figures for 2013, we do know that the Business Review in Albany reported that in the first year since the passage of the law, divorce filings in New York spiked 8 percent, for a total of nearly 65,000 filings. Figures for 2012 surpassed that. 

Prior to the passage of this law, couples who wanted to dissolve their marriage in New York had to accuse the other of some egregious offense like cruelty, imprisonment, abandonment or adultery. Those who had simply fallen in love were forced to lie, a phenomenon referred to in the New York Times as "institutionalized perjury." Some spouses had to falsely testify to wrongdoing of the other just to make the proceedings final. 

The old law forced one spouse to legally take the blame in a case. It eliminated the possibility of mutual consent, of two people who had simply made the adult decision to move on. 

The only other alternative was to legally separate for at least one year. For many couples, that proved a unique hardship. 

In the end, legislators came to the conclusion that forcing one side to take the blame offered no advantage to either party. In fact, it usually ended up harming children, as it tended to escalate conflict within the proceedings. 

For most divorce-seeking couples, the law has generally worked as intended. However, issues have arisen. 

There had been an issue for a while with some judges who interpreted the law differently than others. In cases where couples had cited that the union was simply "irretrievably broken," some judges called for a jury trial. That meant that those in different jurisdictions were sometimes facing different standards than those in other areas of the state. It also meant that the process continued to be drawn out, despite the reform efforts. 

However, in June of last  year, Manhattan Supreme Court Justice Laura Drager ruled that parties were not entitled to jury trials in these instances and that due process rights were not infringed upon in the event such a trial was not granted. 

A state assembly bill, A4269-2013, was introduced earlier this year that would have amended domestic relations law to exclude jury trials in no fault divorce actions. However, the bill has been sidelined in judiciary since February. 

In the meantime, there have been instances in which judges allowed some no-fault divorce claims to be contested, forcing parties to testify on the stand to a series of personal questions they likely hoped to avoid by filing a no-fault action in the first place. One example was a 79-year-old woman who was made to testify - for hours -  as to the length of time since she and her husband had engaged in sexual relations, why she was dissatisfied with his refusal to fix things around the house and his estrangement from their children. 

That's exactly the kind of thing legislators had hoped to avoid when they first passed the law.

To ensure your rights are protected, call us today.

If you are contemplating a  no-fault divorce in New York City, call our offices at (718) 864-2011.

Additional Resources:

Divorces Drag on Even After Reform, May 6, 2012, By Sophia Hollander, The Wall Street Journal

More Blog Entries:

Uncontested Divorce in Brooklyn With Children for Lowered Fee of $499, Sept. 24, 2013, Brooklyn No-Fault  Divorce Lawyer Blog


Wednesday, October 23, 2013

Informal, Long-term Marital Separations Can be Risky

It's one thing in a marriage to take some time apart, re-evaluate your priorities and determine whether this is a union worth saving. 

It's quite another to spend years in a virtual legal limbo, working toward neither divorce nor reconciliation and with no clearly outlined definition for the support or care of children, property use or division or the management of debts and investments. 

Our Brooklyn divorce lawyers know that this is the scenario in which many couples find themselves, and it often results in unpleasant surprises. it's unfortunate because there are ways to legally protect yourself, even if neither of you is quite ready - financially or emotionally - for a divorce. 

One of the best options is a legal separation. This is not something that is required of couples prior to a divorce. Rather, it's a way for couples to sort out some of the details of living in two separate domiciles, while still technically remaining married. 

In New York, legal separations, unlike divorces, are not something the court grants. There are no applications and it's not something for which agreements are formally approved. Rather, a separation, much like a prenuptial agreement or a marital agreement, is a contract between you and your spouse. Ideally, this contract will spell out who is going to be responsible for paying which bills, where the children are going to live, whether one spouse will pay the other child support, what the visitation schedule is going to look like, what's going to happen to shared marital property - and really any other aspect you want to include. 

It is highly advisable that you have an attorney counseling you through this process, helping you draw up the language of the agreement and informing you of any aspects you may have overlooked. If an agreement is poorly-worded, it can have unexpected and sometimes serious consequences for both parties, especially in complicated cases. 

So why have a separation agreement at all? While we generally espouse the many benefits of a clean break through an uncontested divorce, that's not always ideal. In some cases, considerations like military benefits or health care insurance comes into play. Ending the marriage could mean leaving one spouse at an extreme disadvantage. 

Other times, there are religious reasons. Couples don't want to be together anymore, but their faith won't allow them to legally divorce. A separation agreement can be a compromise. 

In other cases, couples are simply unsure whether this is what they truly want. Rushing into a divorce isn't appealing. They both want time to sort through not only their finances, but their emotions as well. A legal separation can provide that opportunity. 

Where we see bigger problems is when couples separate without a legal separation agreement. We're not talking about a few weeks in a hotel after a major fight. We're talking about years of simply living apart, with no formal agreement to define the terms of that space. There are a number of issues that can arise.

First of all, you are in a position of having zero control over the handling of marital assets. You can't control what your spouse is spending, saving, investing or earning - and worse, you may have no real knowledge of it either. Being in the dark about financial decisions that directly affect you is never a good idea. Plus, the fact that you no longer share a residence means your spouse may have ample opportunity to hide certain assets. 

Secondly, you could be seriously impacted if your spouse moves out-of-state - or worse, out of the country. New York divorce laws may not be applicable if your spouse has established residency elsewhere. Understand that a lot of states have passed severe restrictions on things like alimony, which could significantly impact what you walk away with if your spouse chooses to file for divorce in his or her new home state. 

Consider also the possibility that you might meet someone new. Some people might see this as a positive. However, starting a relationship while you're still legally married and not legally separated is generally frowned upon in divorce court. It's only been three years since York became the last state in the country to pass a no-fault divorce law, meaning you don't have to offer up a reason for the split. However, that doesn't  mean infidelity won't factor into the ultimate divorce agreement. 

It's understandable that many couples approach divorce with trepidation. Separations agreements allow you to take your time, while still protecting yourself. 

If you are contemplating a Brooklyn separation agreement, call our offices at (718) 864-2011.

Additional Resources:

Putting Off Divorce? Ten Ways Long-term Separations Can Do Women More Harm Than Good, Oct. 3, 2013, By Jeff Landers, Forbes.com

More Blog Entries:

Brooklyn Family Law Attorneys Discuss Divorcing Like Adults, Oct. 6, 2013, Brooklyn Legal Separation Agreement Lawyer Blog

Friday, October 18, 2013

Brooklyn Cohabitation Agreements on Rise With Decline of Remarriage Rates

Increasingly, those who have been divorced or widowed are opting out of second or third marriages. 

However, that doesn't mean they are ending up alone. Instead, new analysis of federal data by USA Today indicates that more often, couples are opting for cohabitation. 

It's certainly understandable, particularly following a bad experience, that people would avoid taking another plunge. But that doesn't mean you can't put some legal protections in place that will help to shield both of you in the event of a nasty break-up. In Brooklyn, cohabitation agreements serve to outline both parties' rights, responsibilities and boundaries in the event of a death or break-up. 

Unlike a prenuptial agreement, there is no promise or expectation of marriage - and that is just fine for a growing number of couples. 

At the National Center for Family & Marriage Research at Bowling Green State University, researchers say remarriage rates in the U.S. have plummeted by 40 percent over the last two decades. Researchers found that this was true regardless of age. 

The data compared remarriage date from 1990 with that in 2011. Back in 1990, 50 out of 1,000 divorced or widowed persons sought remarriage. By 2011, that figure reached 29 out every 1,000 divorced or widowed individuals. 

While researchers found that remarriage had become less popular for all ages, it was losing traction with those under the age of 35, where a 55 percent decline was noted among those 20 to 24. Those 25 to 34 saw a 40 percent drop. 

There are believed to be two major factors here: cohabitation and older age at the time of the first marriage. 

Today, the average age of a first marriage is 27 for women and 29 for men. That means that at the time of divorce or widowhood, they may be well into their 30s or 40s, and not eager to jump into a new marriage. 

Cohabitation is also a major factor. When we look at what cohabitation meant a generation ago, it was akin to "living in sin." That's not an attitude we see much anymore. 

Neither do LGBT relationships have the same kind of taboos associated with them that they did years ago. That has also played a role.

Census data from 2012 shows that there are approximately 7.8 million people cohabitating together, increasing from about 5 percent of couples in 1990 to nearly 12 percent in 2012. Of those, nearly 40 percent have been married before. 

A number of couples have cited concerns about whether it's possible to make a remarriage work. We do know that remarriages are more likely than even first marriages to end in divorce. That has people wary. 

First marriages have the advantage of allowing couples to define what marriage is to them, to establish an internal culture. Second marriages tend to be harder because, with children, parents area already deeply bonded and there is a rhythm, a routine and culture that is already established. For an outsider to come in is not impossible, but it's certainly tough. 

Still, that doesn't stop people from spending years if not decades or the rest of their lives living with their new loves. 

However, there is a common misconception that long-term cohabitation simplifies things. There is a belief that if things end, they won't need to involve lawyers or litigation or messiness. But the truth is, cohabitation, as opposed to marriage, reduces your legal rights under the law. If you share any property or debt or assets, dividing it up gets to be much tougher and, in some cases, less fair. 

This is where cohabitation agreements can be so valuable. They provide the protection, without the commitment. 

If you are interested in drafting a Brooklyn cohabitation agreement,, call our offices at (718) 864-2011.

Additional Resources:

Remarriage rate declining as more opt for cohabitation, Sept. 12, 2013, By Sharon Jayson, USA Today

More Blog Entries:

New York City Divorce Lesson's From a Billionaire's Split, Sept. 6, 2013, Brooklyn Cohabitation Agreement Lawyer Blog

Archived Posts


© 2021 The Gilmer Law Firm, PLLC. | Attorney Advertising
42 West Street, Suite 2/36c, Brooklyn, NY 11222
| Phone: 718-864-2011

Filing a Family Law Case | Family Law Overview | Family Court | Divorce | Cohabitation Agreements | Child Support Modifications | Maintenance | Child Custody | Paternity Petitions | Order of Protection | Family Law Mediation | Order of Protection Defense | Temporary Emergency Custody | Visitation | | Other Services | Bankruptcy | ACS Cases | Immigration | Uncontested Divorce

FacebookGoogle+TwitterLinked-In PersonalYouTubeBlog RSS

Attorney Web Design by