Monday, August 29, 2016
According to Credit.com, "new research from two University of Washington sociologists shows that divorce-filing rates peak in August, right after summer vacations" (research was based on divorce filings in Washington state between 2001 and 2015).
Credit.com advises readers to keep in mind credit-wise some suggestions as you contemplate the divorce process. Here is a link to the story as posted in the St. Louis Post-Dispatch:
Friday, August 26, 2016
About two weeks ago, this blog reported on a case, MATTER OF NAIREN McI. v. CINDY J., 2016 NY Slip Op 2516 - NY: Appellate Div., 1st Dept. 2016, in which it appeared that the relocation took place some time before the court's decision and the father's failure to pay child support was a factor to support the relocation approval. See http://jmpattorney.blogspot.com/2016/08/relocation-case.html
Compare that with Matter of Finkle v Scholl 2016 NY Slip Op 04293 Decided on June 2, 2016 Appellate Division, Third Department where the relocation also took place before a court order:
"Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of a daughter born in 2006. After living together in Delaware County for several years, the parties separated in 2011 and informally shared parenting time with the child. The parties maintained this roughly equal arrangement until October 2014, when, without advance notice to the father, the mother withdrew the child from school and relocated with her to Saratoga County. The father then filed a petition seeking custody of the child and the mother
cross-petitioned for the same relief. Additionally, upon application of the father, Family Court signed an order to show cause requiring the immediate return of the child to the father's custody and to her original school district during the pendency of these custody proceedings. After a fact-finding hearing, the court granted the father sole legal and physical custody of the child and liberal visitation to the mother, who now appeals.
While the mother's relocation "precipitated the commencement of these proceedings, the matter concerns an initial custody determination, and, therefore, the strict application of the factors applicable to relocation petitions is not required" (Matter of Wright v Stewart, 131 AD3d 1256, 1257 ; see Matter of Hill v Dean, 135 AD3d 990, 991 ; Matter of Holland v Klingbeil, 118 AD3d 1077, 1078 ). Despite Family Court's statement in its decision that it [*2]would apply the Tropea analysis (see Matter of Tropea v Tropea, 87 NY2d 727, 740-741 ), its analysis actually — and appropriately — treated the mother's relocation as "'a very important factor among the constellation of factors to be considered in arriving at a best interests determination'" (Matter of Bush v Lopez, 125 AD3d 1150, 1150 , quoting Matter of Streid v Streid, 46 AD3d 1155, 1156 ). These factors also include "the parents' past performance and relative fitness, their willingness to foster a positive relationship between the child and the other parent, as well as their ability to maintain a stable home environment and provide for the child's overall well-being" (Matter of Hill v Dean, 135 AD3d at 991 [internal quotation marks and citations omitted]).
The record portrays the parties as loving, attentive parents, both of whom are equally capable of providing for the child's overall well-being. The father resides with the child, his girlfriend, their infant daughter and the girlfriend's daughter from a previous relationship in the same house that the child has lived in for almost all of her life. The father testified that the child has close relationships with the girlfriend, the other two children and his large extended family that lives in the area. Currently, the mother resides in a three-bedroom apartment in Saratoga County. Family Court discredited her explanation of her reasons for the move and attributed the relocation primarily to her desire to be closer to her current boyfriend, who also lives in Saratoga County.
The secretive manner in which the mother left Delaware County with the child — effectively removing the child from her father, his family and the only school she has ever known — is, in our view, the greatest cause for concern relevant to this initial custody determination. On October 7, 2014, the mother pulled the child out of school mid-day and immediately moved with her to an apartment in Saratoga County. It was not until two days later that the father learned the full details of the mother's relocation, most of which were explained in a letter that the mother did not mail to him until the day that she executed her long-standing plan.
As for the mother's allegations of parental unfitness against the father, we agree with Family Court's assessment that the father has, on occasion, displayed a lack of proper parental judgment. However, we note that the mother's professed concerns did not prevent her from agreeing to their prior arrangement of shared parenting time, and we defer to the court's credibility determination that most of the mother's assertions were exaggerated or fabricated (see Matter of Hill v Dean, 135 AD3d at 992-993; Matter of Matthew K. v Beth K., 130 AD3d 1272, 1274 ). Furthermore, the evidence indicates that the father's home environment provides greater stability for the child, and he is more willing than the mother to foster a relationship between the child and the other parent. Thus, we find a sound and substantial basis to support the court's decision that an award of primary physical custody to the father is in the child's best interests (see Matter of King v Chester, 123 AD3d 1352, 1355 ; Matter of Adams v Morris, 111 AD3d 1069, 1070-1071 ; Matter of Barker v Dutcher, 96 AD3d 1313, 1313-1314 )."
Thursday, August 25, 2016
Domestic Relations Law § 230 requires that one of the parties reside continuously in New York State for two years, or continuously for one year if other conditions are met including that the “cause of action occurred in the state.” At least one trial level court has held that the ground of irretrievable breakdown of the marriage cannot be considered a cause that occurred in the state.
Stancil v Stancil 2015 NY Slip Op 25045 Decided on February 17, 2015 Supreme Court, New York County:
"Each year, matrimonial courts in this state assist thousands of unhappily married couples resolve the painfully difficult issues involving their children and the complicated issues involving their finances. It is never the goal to make the process more time-consuming and costly. The court readily admits that this decision may cause hardship for plaintiff, who may very well now have to commence two actions: a custody petition brought in either this court or New York Family Court to determine non-financial issues concerning the child, who has lived here for more than the requisite six months (DRL § 76), and an action for divorce brought in South Carolina or Virginia, states which likely have the ability to grant plaintiff a divorce and determine all ancillary financial issues....
Oliver Wendell Holmes famously wrote "hard cases make bad law." Bearing that adage in mind, this court cannot make bad law simply to avoid hardship to plaintiff. In spite of the difficulties that she will encounter as a result of this divorce action being dismissed, permitting the case to go forward would be making a legal determination that would render the two year residency requirement meaningless. While it is this court's view that the no-fault divorce statute has brought immeasurable value to the citizens of this state and to its courts, if the legislature intends to lower the residency requirement to one year where the irretrievable breakdown ground is pled, it will have to say so. Absent this, it must be concluded that plaintiff is required to reside in New York State for two years prior to the commencement of the divorce. Because she has not, the durational residency requirement is not satisfied and this divorce action must be dismissed."
Wednesday, August 24, 2016
This issue was posted before but concerns about mental health and lawyers also exist in law school.
In the following article, someone writes about two suicides at the same law school:
Tuesday, August 23, 2016
If it seems like a long wait, according to Trulia, it is a long wait. In a report updated on July 19, entitled "Is Your Town Building Enough Housing?", the average months for building approval in Nassau/Suffolk is 11.4 months, and only three other communities are slower: in Arizona, California and Hawaii.
The report states:
"In sum, the rate at which we are providing housing in the U.S. relative to demand is low compared to historical standards, but this varies quite immensely across the largest 100 markets. Many places in the Southwest and Southeast actually provide a decent number of new housing units when demand rises, but others in the Pacific West and Northeast don’t. While it is tempting to blame the most popular tool of local land use regulation, zoning, we find that it is actually delays in the building permit approval process that affecting the ability of builders to meet demand. This is because zoning can formally be changed, while uncertainty over building approval cannot."
n sum, the rate at which we are providing housing in the U.S. relative to demand is low compared to historical standards, but this varies quite immensely across the largest 100 markets. Many places in the Southwest and Southeast actually provide a decent number of new housing units when demand rises, but others in the Pacific West and Northeast don’t. While it is tempting to blame the most popular tool of local land use regulation, zoning, we find that it is actually delays in the building permit approval process that affecting the ability of builders to meet demand. This is because zoning can formally be changed, while uncertainty over building approval cannot. - See more at: http://www.trulia.com/blog/trends/elasticity-2016/#sthash.dW1atzKR.dpuf
Is Your Town Building Enough Housing?
Monday, August 22, 2016
Friday, August 19, 2016
"A law firm may bill a client for work performed by a student-intern despite the fact that the law firm does not pay the intern, because the intern receives academic credit for the work, as long as (i) the internship program complies with applicable law, (ii) the educational institution does not object to the client charges, and (iii) the charge is not excessive."
Thursday, August 18, 2016
"Governor Andrew M. Cuomo today (August 16, 2016) signed “Tiffany Heitkamp’s” Law, legislation that strengthens penalties for boating while intoxicated offenses by linking them to prior drinking while driving offenses involving a vehicle. The bill (A.1597-A/S.3785-A) requires courts to consider prior Driving While Intoxicated or Driving While Ability Impaired convictions when sentencing a person for Boating While Intoxicated or Boating While Ability Impaired.
“Whether behind the wheel of a car or a boat, drunk drivers are a danger to themselves and a menace to others,” Governor Cuomo said. “This new law closes this loophole and will help keep these dangerous individuals off our roads and waterways, avoiding more senseless tragedies.”
Under current law, there is no linkage between prior DWI and DWAI offenses and BWI offenses. This makes it impossible to convict an individual as a repeat offender, despite prior violations of similar laws. The bill addresses this gap by linking these similar offenses and providing harsher penalties for repeat offenders
Specifically, this measure requires that a court sentencing an individual for a BWI carrying a 30-day sentence must consider any prior DWIs or DWAIs by the same individual within a five-year period. When sentencing for a BWAI carrying a 180-day sentence, the court must consider prior DWIs or DWAIs within a 10 year period. This change would require a sentencing judge to impose a higher sentence on those who repeatedly get behind the wheel in an intoxicated state, regardless of whether it is a car or a boat.
Senator John A. DeFrancisco said, "When someone has a history of operating a vehicle or vessel while under the influence of alcohol or drugs, that record should be taken into account when the individual is sentenced. Repeat offenders should be held accountable for their history of dangerous actions to help deter further tragedies. I am very pleased that Governor Cuomo has signed this important bill into law to help improve the safety of our roadways and waterways. I also would like to commend MaryJo Heitkamp-France on her advocacy to help get this bill passed."
Assemblyman William Magnarelli said, “I want to thank Governor Cuomo for signing this important bill into law. It will honor the memory of Tiffany Heitkamp by requiring that judges take into account past DWI convictions when sentencing those convicted of Boating While Intoxicated. It will further deter those who repeatedly violate NY’s intoxicated operation laws. I also want to thank Ms. MaryJo Heitkamp-France for her tireless advocacy on behalf this legislation in memory of her daughter. This new law would not have happened without her efforts. I hope it will honor Tiffany’s memory and save lives on our waterways.”
The “Tiffany Heitkamp” bill was named after a young Syracuse-area woman who was killed in July 2006 while traveling as a passenger in a boat operated by an intoxicated person. The individual operating the boat had a record of alcohol-related automobile incidents. However, because there was no link between prior convictions for Boating While Intoxicated, he could only be charged as if this was his first BWI."
Wednesday, August 17, 2016
Wagner v. Wagner, 2016 NY Slip Op 847 - NY: Appellate Div., 4th Dept. 2016:
"We reject defendant's contention that Supreme Court abused its discretion in determining that the parties' credit card debt was a marital liability......"It is also well settled that trial courts are granted substantial discretion in determining what distribution of marital property[ — including debt — ]will be equitable under all the circumstances" (id. at 1429 [internal quotation marks omitted]; see McKeever v McKeever, 8 AD3d 702, 702-703 ). "[E]xpenses incurred prior to the commencement of a divorce action constitute marital debt and should be equally shared by the parties" (Malachowski v Daly, 87 AD3d 1321, 1322  [internal quotation marks omitted]). "Where, however, the indebtedness is incurred by one party for his or her exclusive benefit or in pursuit of his or her separate interests, the obligation should remain that party's separate liability" (Jonas v Jonas, 241 AD2d 839, 840 ; see Oliver, 70 AD3d at 1429; McKeever, 8 AD3d at 703).""
Tuesday, August 16, 2016
In Doe v. United States (Second Circuit, August 11, 2016, Docket Number: 15-1967), at issue was whether the district court acted within its authority when it expunged the conviction of a woman sentenced some 14 years earlier, based on the court's finding that her conviction had proved an insurmountable bar to the jobs in home health care for which she was qualified. The judge directed that the government seal the records of Ms.Doe’s conviction, stating that he had sentenced her “to five years of probation supervision, not to a lifetime of unemployment.”
The Second Circuit reversed stating that expungement is available in limited cases where Congress has specifically authorized it. Recognizing the harshness of its decision, the court added that its opinion “says nothing about Congress’ ability to provide for jurisdiction in similar cases in the future” and also quoted a speech by Attorney General Loretta Lynch in which she stated that society’s treatment of former offenders “turns too many terms of incarceration into what is effectively a life sentence.”
The full decision can be viewed here: http://law.justia.com/cases/federal/appellate-courts/ca2/15-1967/15-1967-2016-08-11.html
Monday, August 15, 2016
Friday, August 12, 2016
Is it easier to obtain court approval after relocation rather than before? In MATTER OF NAIREN McI. v. CINDY J., 2016 NY Slip Op 2516 - NY: Appellate Div., 1st Dept. 2016, it appears that the relocation took place some time before the court's decision and the father's failure to pay child support was a factor:
"Family Court's relocation determination has a sound and substantial basis in the record, as the mother established, by a preponderance of the evidence, that relocation to Tennessee would serve the best interests of the child (Matter of Tropea v Tropea, 87 NY2d 727, 739, 741 ). The mother testified regarding the improvement in the child's academic performance in her Tennessee school, compared to her performance in her former Bronx school; the improvement in, and reduced cost of, healthcare in Tennessee for the mother's younger daughter; and the general improvement in the family's quality of life, including the lower cost of living and housing, and the mother's ability to obtain employment in Tennessee (see Matter of Kevin McK. v Elizabeth A.E., 111 AD3d 124, 130-131 [1st Dept 2013]). In addition, the child prefers to remain in Tennessee with her mother (Matter of Aliyah B. [Denise J.], 87 AD3d 943, 944 [1st Dept 2011]). Moreover, the father's failure to pay child support is a factor in support of relocation (Matter of Kevin McK., 111 AD3d at 128, 131, 133). There is no basis to disturb Family Court's credibility determinations.
In accordance with the child's request, Family Court's order should be modified to increase the father's parenting time with the child to the extent of permitting the child to spend all school recesses during the school year of longer than four days with the father. According to the child's school calender, those recesses currently consist of "Fall Break," "Winter Break," and "Spring Break & Good Friday." In addition, the summer recess shall be equally split between the parents."
Thursday, August 11, 2016
Not in NYC! Under Local Law No. 78 (2013); N.Y.C. Admin. Code § 8-107(22):
"22. Employment; Pregnancy, childbirth, or a related medical condition.
(a) It shall be an unlawful discriminatory practice for an employer to refuse to provide a reasonable accommodation, as defined in subdivision eighteen o f section 8-102 of this chapter, to the needs of an employee for her pregnancy, childbirth, or related medical condition that will allow the employee to perform the essential requisites of the job, provided that such employee's pregnancy, childbirth, or related medical condition is known or should have been known by the employer. In any case pursuant to this subdivision where the need for reasonable accommodation is placed in issue, it shall be an affirmative defense that the person aggrieved by the alleged discriminatory practice could not, with reasonable accommodation, satisfy the essential requisites of the job.
(b) Notice of rights. (i) An employer shall provide written notice in a form and manner to be determined by the commission of the right to be free from discrimination in relation to pregnancy, childbirth, and related medical conditions pursuant to this subdivision to: (1) new employees at the commencement of employment; and (2) existing employees within one hundred twenty days after the effective date of the local law that added this subdivision. Such notice may also be conspicuously posted at an employer's place of business in an area accessible to employees. (ii) The commission shall develop courses of instruction and conduct ongoing public education efforts as necessary to inform employers, employees, employment agencies, and job applicants about their rights and responsibilities under this subdivision.
(c) This subdivision shall not be construed to affect any other provision of law relating to sex discrimination or pregnancy, or in any way to diminish the coverage of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth under any other provision of this section."
That didn't cover it so in May, 2016, the Commission on Human Rights NYC Commission on Human Rights issued Legal Enforcement Guidance on Discrimination on the Basis of Pregnancy: Local Law No. 78 (2013); N.Y.C. Admin. Code § 8-107(22) and stated in Section III (a) (2) (emphasis supplied):
"...While covered entities may attempt to justify certain categorical exclusions based on maternal or fetal safety, using safety as a pretext for discrimination or as a way to reinforce traditional gender norms or stereotypes is unlawful.
Examples of Violations
• A restaurant policy that prohibits staff from serving pregnant individuals raw fish or alcohol."
To view the guidelines, see http://www.nyc.gov/html/cchr/downloads/pdf/publications/Pregnancy_InterpretiveGuide_2016.pdf
Of course, under City Council Law 63, all food establishments selling alcoholic beverages for on-premises consumption must still put up signs warning pregnant women that consuming alcohol during pregnancy can cause birth defects. It's just that woman are now free to drink anyway.
Wednesday, August 10, 2016
Devorah H. v Steven S. 2015 NY Slip Op 25228 Decided on July 2, 2015 Supreme Court, New York County Cooper, J :
"In the over 100 years since the enactment of DRL § 25, the way citizens marry in New York has change immeasurably. While at one time the wedding ceremony was the central element of the process, that is no longer the case; church weddings are more and more the exception rather than the rule, and the new wave of marriage ceremonies would be almost unrecognizable to earlier generations. What is key to the process is the marriage license itself. This is not only true for New York, but for the entire nation. After all, when the United States Supreme Court issued its historic decision in Obergefell v Hodges (576 US ___ ) making the right to same-sex marriage the law of the land, it did so by decreeing that "States are required by the Constitution to issue licenses to same-sex couples" (emphasis added).
DRL § 25, in its present form, serves no useful function in today's world. Conceivably, if the statute was amended to allow couples who justifiably believed they were legally married with a valid marriage license to protect the marriage from a claim that the license was improperly executed or otherwise defective, that would certainly serve the public interest. But as it exists now, the statute allows for the wholesale disregard of New York's licensing requirements — requirements that, as we have seen, play a vital role in insuring that marriages are legally valid. Until DRL § 25 is repealed or reformed, courts will be forced to grapple with situations like this, where the parties fully understood that they did not legally marry but one side seeks to abuse the statute to attain the financial remedies only available to litigants who are married to one another.
In light of the foregoing, it must be concluded that plaintiff cannot show that she and defendant are married, and therefore has failed to prove an essential element of her prima facie case for divorce. The clerk is directed to enter judgment in favor of defendant dismissing the complaint."
Tuesday, August 9, 2016
Monday, August 8, 2016
"As with all actions (lawsuits), there is a statute of limitations on how long creditors can sue you to collect on a debt, get a judgment against you, and garnish your wages or levy against your financial accounts. In New York, the statute of limitations is six years, pursuant to section 213 (2) of the Civil Practice Law and Rules (CPLR) (for "an action upon a contractual obligation or liability, express or implied . . ."). However, once a judgment has been entered against you, a creditor has up to 20 years to enforce that judgment, pursuant to section 211(b) of the CPLR.
However, there are two major caveats to be aware of regarding the statute of limitations:
1. Sometimes, creditors and/or collection agencies will attempt to sue debtors even after the statute of limitations has expired. If you or an attorney that represents you fails to appear in court to claim that the statute of limitations on the debt has expired, the court may issue a default judgment against you, and then the 20 year period for enforcing the judgment starts running.
2. If you acknowledge a debt (in writing and signed) and/or make a payment on a debt, that will restart the 20 year period for enforcing the judgment.
With regard to reporting of debts on a credit report, rather than the state laws that govern the statute of limitations to collect on a debt and enforce a judgment, credit reports are governed by federal law, specifically the Fair Credit Reporting Act ("FCRA"), which is codified at sections 1681 through 1681x of title 15 of the U.S. Code. Under the FCRA, credit reporting agencies are required to remove information about a debt after seven years, regardless of the ownership or sale of the debt (i.e. to a collection agency) or whether or not you've acknowledged the debt. The seven year period commences 180 days after the last payment on the debt. However, there are also some exceptions to these general reporting requirements. They don't apply to consumer credit reports to be used in connection with: (1) a credit transaction involving, or which may reasonably be expected to involve, a principal amount of $150,000 or more; (2) the underwriting of life insurance involving, or which may reasonably be expected to involve, a face amount of $150,000 or more; or (3) the employment of any individual at an annual salary which equals, or which may reasonably be expected to equal $75,000, or more.
Remember that consumers are entitled to free credit reports every 12 months from the three big credit reporting agencies ( Equifax, Experian and TransUnion) from Annual Credit Report.com. For all of your questions about debts and credit reports, please contact Jim Shenwick."
Friday, August 5, 2016
"On December 1, 2013 Kari Rene Hunt was murdered by her estranged husband whom she was intending to divorce. She agreed to meet him at a local motel to leave their children with him for a short visitation while he was in town. Her estranged husband ambushed her in the motel room and cornered her in the restroom. During the struggle and resulting death of Kari, her oldest daughter, age 9, (name with held for privacy) attempted to dial 911 from the motel room phone. She followed instructions as taught by her mother on the way to call for help but she was never instructed that in some hotels and motels you must first dial a "9" and then 911."
Kari's Law has been recently enacted in such states as Texas. The legislation hopes to ensure that anyone who dials 9-1-1 will reach emergency personnel, even if the phone typically requires that user to dial ‘9’ to get an outside line.
In NY, only Suffolk County has enacted such legislation. See Suffolk County, NY Emergency Services, Article 436.
On the national level, the US House of Representatives passed a similar bill in May 2016 but it is still in the US Senate.
Thursday, August 4, 2016
From the Governor's press office, August 3, 2016:
"Governor Andrew M. Cuomo today signed legislation to legalize interactive fantasy sports in New York State. The bill (S.8153/A.10736) requires that fantasy sports companies must register with, and operate under regulations issued by, the New York State Gaming Commission. It is expected that once fully implemented, the legislation will generate approximately $4 million in revenue to fund state education aid.
"Daily fantasy sports have proven to be popular in New York, but until now have operated with no supervision and no protections for players," Governor Cuomo said. "This legislation strikes the right balance that allows this activity to continue with oversight from state regulators, new consumer protections, and more funding for education.”
Interactive fantasy sports are games of skill in which contestants assemble a roster of athletes in a given sport and use the actual performance statistics of those athletes to determine the contest’s winner. Contestants pay fees to enter the contest and, if successful in performing against their opponent, win prizes.
In addition to establishing the means for regulating interactive fantasy sports in New York State, this legislation also takes steps to institute important consumer protections for players for the first time, some of which include offering introductory procedures to new players, identifying highly experienced players, prohibiting the participation of minors and protecting players' funds upon deposit.
Senator John J. Bonacic said, "I am pleased that Governor Cuomo has signed the Daily Fantasy Sports legislation into law, allowing thousands of New Yorkers the opportunity to continue playing these games that they have been playing for over a decade. With strong consumer protections and economic benefits to the state, I believe this legislation can serve as a model for the rest of the country."
Assemblyman J. Gary Pretlow said, “Fantasy sports are more than online games – they have the potential to generate millions of dollars in revenue for New York State. This bill will allow these companies to continue operating while ensuring fans have a safe environment to play in. I am proud Governor Cuomo has signed this legislation to keep fantasy sports in New York and I thank my partners in the legislature for their work in getting this legislation passed.” "
Wednesday, August 3, 2016
A New Jersey personal injury attorney has filed a class-action lawsuit against Niantic, the company behind Pokemon Go, for the “unlawful and wrongful” invasion of his property. Read the complaint at:
Tuesday, August 2, 2016
The image above is of the old form. Effective August 1, all divorce cases must utilize the revised template for the statement of net worth which changes a number of factors in the prior version from 1998. For instance, the new form addresses the monthly cost of a spouse's cell phone plan and internet.