Non-legal blogging - not illegal blogging

I blog here as part of my business - for marketing my practice, informing the general public and providing some additional information to my clients.  My wife blogs for fun on the Times Union website about her running addiction hobby.  She's been bugging me to write something as I also am a runner - although I'm much less devoted.  I blogged a little about my upcoming marathon training procrastination here.

Funny and kinda creepy lawyer commercial

Here's a pretty funny video I saw posted on facebook this week.  I am not into fantasy football so much, but I think Gary Busey is hilarious.

I've considered putting a video on my website, but I think until I can pull off something as entertaining as this (while still being professional), I need to keep working on ideas.

Whose fault is it?

This should welcome news to many of my prospective clients, but New York now has a no-fault divorce law.  Well, the law does not go into effect until October, but the law has been signed.  Since I handle matrimonial law, and advertise this service, I often get calls from people asking questions about getting a divorce.  Usually the call starts off with the basics - "do you handle divorces?" "what does it cost?".  Then, if the person just recently separated, the question turns to "do I really have to wait a year before I get divorced??"  "can't I just say that he (or she) treated me cruelly?"  or "I have a friend who got divorced in fifteen minutes and it only cost him $25 - he did it all at Staples!!"  

Until now, in order to obtain a divorce in New York, you generally had to prove that you had grounds.  The Domestic Relations Law listed a handful of limited grounds, such as adultery, cruel and inhuman treatment, abandonment, and living separate and apart under an agreement for a year. Abandonment and separation agreement are (were?) very popular grounds, but both require a year of separation between the parties. 

Another potential problem with abandonment can be illustrated by an example.  Say a husband and wife are living together in misery.  Neither want to be married to the other, but like many people, they each have a hard time "breaking up".  Maybe husband doesn't like the idea of having to get a new apartment, so he drags his feet, and eventually the wife packs up and leaves.  He may also be indifferent to the divorce, and also be reluctant to incurring the legal fees.  So as a result you have a situation where unless the husband were to file for the divorce, there may not have been grounds under the old NY system.   She abandoned him.  She probably was justified, but under the law she was at "fault" for abandoning him and he would have to be the one to be the plaintiff in the divorce.  

The new law requires only that one spouse swear under oath that a relationship has broken down for at least six months.  No blaming anyone for the breakdown in the relationship.  Much simpler, and less expensive than proving grounds.  

I'll leave it to others to debate whether or not expedited divorce is a positive thing, but New York was the last state to enact a law relaxing the divorce grounds, so it seems the state is just aligning itself with the rest of the country.

Human nature and the law of evictions

I hate to generalize, and would never make a statement like - "people are lazy", but I think it is true that most people try to find the easiest way to accomplish a goal.  Often, people cut corners to try to get something done easily.  More often than not, cutting corners equals sub-par results.  Everyone knows the old saying, nothing worthwhile is easy.

In my law practice I handle a good amount of landlord and tenant work.  I draft and review lease agreements, help property owners evict non-paying tenants, and help tenants defend against being evicted.  In New York, there are set rules about how residential evictions are to handled.  These rules can be confusing at first, but once you handle a few, the rules are relatively straightforward.  You cannot cut corners when trying to evict a tenant.  Even so, many landlords do exactly that, and I suspect that many of the landlords get away with it.

Like I said, I've represented both landlords and tenants over the years.  The number one question asked by my landlord clients is "how can I get this done as fast as possible?"  By the time the property owner calls me, they may have already tried working something out with the non-paying tenant and they are losing money.  I usually have to spend a little time explaining the importance of playing by the rules to new landlord clients.  

To describe the process in very general terms, a non-payment "eviction" case is called a "summary proceeding" in New York.  Before the proceeding can start, the landlord has to send a 3-day notice to the tenant.  This is a demand letter, essentially saying "pay me what you owe between now and three days from now, or I'm going to court".  You cannot file the summary proceeding without first doing this, AND, the 3-day notice needs to be served not just mailed.  This is probably the most frequent corner to cut in the eviction process.  Next, if the tenant does not pay the amount due, the landlord can then file and serve the Notice of Petition and Petition in the summary proceeding.  If, the tenant partially pays, then landlord either has to reject the partial payment or accept it and re-demand the balance with a new 3-day notice.  Once the summary proceeding is started, the landlord has to have the tenant served no sooner than five days before the court date, and no longer than 12 days before the date.

Recently, I was contacted by a client who had a question about a document he received in the mail from his landlord.  He had gotten a little behind in his rent, and received a 3-day rent demand by certified mail a few days prior, but now received in the mail a copy of a warrant to evict signed by a local judge.  I was skeptical at first, thinking that he must have received some papers in between and ignored them, but after discussing it with him and reviewing the papers it became clear to me that the landlord either didn't know the eviction "rules", or cut corners to get around those.  The local judge apparently didn't know the rules either and went ahead and signed a warrant of eviction without ever even having a formal summary proceeding before him.

I immediately called the court - a rural upstate court, and spoke to the judge.  The judge did not know what I was talking about when I explained the summary proceeding process and how it appeared that the rules were disregarded by the landlord in this case.  The landlord not only cut corners in not properly serving the 3-day notice, but completely skipped the summary proceeding and went right from demanding rent to getting a warrant of eviction.  I then filed an order to show cause before the court and demanded that the warrant be vacated.  My request was granted, and my client wasn't evicted, but if my client didn't question this he and his family would likely have been unlawfully evicted.

The landlord in this case wasn't a bad person - he just wanted his rent. My client shouldn't live for free, but my client never got the opportunity to respond to the allegation of non-payment.  Maybe he had a defense to payment.  Possibly the landlord misapplied the payments.  The landlord could have been in breach of the lease - maybe there was damage to the property cause by the landlord or another tenant, for example.  Maybe, as discussed above, my client made a partial payment under the mistaken understanding that the landlord was working something out with him.  In fact, my client began to tell me about some of his defenses to non-payment, and I stopped him.  It wasn't important to me at first, because the landlord blatantly disregarded the rules.   I'm sure the judge wasn't a bad judge either, he just probably hadn't had a lot of summary proceedings in his court.  

What happened is a classic example of the danger of cutting corners.  The landlord lost and has to restart the eviction properly.  Had the landlord invested the time and effort into properly serving the 3-day notice and properly commencing the summary proceeding, he would likely have removed my client and may have gotten a substitute tenant by now.  

Now I have a good story to tell my new landlord clients who ask me to get an eviction done as quickly as possible. 

Custody - when simple words can confuse and cause problems

Or, the subtitle can also be "what a lawyer is actually good for when it comes to a separation agreement". Child custody - many people have heard of this concept, and many know what it means, but in my family law practice I often see that the concepts of "physical custody" versus "legal custody" are often misunderstood. This is with good reason, since the distinction is technical and most people think custody means 'where the kids live most of the time".

I've recently seen a trend with a few clients I've consulted with, where during a time when an amicable separation is being discussed one of the parents gives up custody, without necessarily knowing it. The scenario goes something like this: husband and wife decide to split, and one of them, say the husband, is going to move out, but since finances will be tight he is going to at least temporarily stay with a friend or rent a very small place. Since the new place might not be appropriate for primary physical custody, he says - you can of course have custody as long as I can still see the kids every other day and every other weekend and some overnights. Trying to save some money the two either buy a separation agreement form online or go to a document preparation company, and when filling in the blanks put down that wife has "sole custody". And by typing in two simple words and signing on the dotted line one of the parents effectively loses almost all parental rights regarding the child or children.

The concept of "sole custody" is much, much different than "physical custody". Sole or legal custody means that only one parent has the authority to make all of the major decisions in a child's life, such as where they will be schooled, what religion they will be brought up with, and major medical decisions. Sometimes sole custody is appropriate, for example in cases where two parents cannot get along or if one has shown poor judgment in acting as a parent, to name a few instances. But generally although the children may only live with one parent primarily, a joint legal custody scenario is preferred. It is after all, in the best interests of the child for them to have a father and a mother in their lives.

Once you voluntarily agree to relinquish these rights in New York, it is difficult to get them back. So, when your spouse asks you to sign a big stack of papers for starting your divorce or separation, read it very carefully and have a lawyer tell you what it means before you agree to something you'll regret.

(Most) Everybody needs a will

I don't really like to tell people what to do. Yes, I'm a lawyer and I get paid to give advice, but I think that is different than barking orders at people.

So for me to say "you must have a will", to me is kind of like a doctor telling a patient to lose 15 pounds, or a financial advisor telling a client to save more - things that people should do and want to do but probably don't like being told to do so.

But having a will done is so easy, important and (in most cases) inexpensive, that I make an exception and have no problem telling my clients to get one done.

Why do you need a will? Well, because if you don't have one when you die, then your things (money, cars, house, jewelry) get distributed not according to your wishes, but to someone else's. The state legislature's plan, that is. There are laws that step in when someone dies without a will, since this happens often.

I'm sure most adults have at least considered the idea of having a will done. A lot of times it comes up at the purchase of a first home or at the birth of a child. Both of these times make sense as estate planning events since wills deal with transferring assets and providing for guardianship of children, among other things. For most people it's a very useful and important document. A poll done in 2007 showed that almost 60 percent of all adult Americans do not have a will, though. So why is this?

People don't like to think about dying. I don't like to think about being dead and I certainly don't like to think about my children growing up without me or my wife. What got me over this reluctance is to hear about people who didn't plan for their deaths and their loved ones. People die - it's not pleasant to think of but it happens all the time.

Many people simply think they don't need a will, because they don't have lots of money that will be part of their estate. This is a good reason to not spend thousands of dollars on complex estate planning, but again, wills are for more than just transferring bank accounts from one person to another. You can use a will to give someone a specific item that might not have a substantial market value but is important to your family. I see this often with clients who want to give a specific child a piece of heriloom jewelry, for example. Also, and I think more importantly, you can appoint guardians for children in a will.

Cost is a concern also I'm sure. Especially in this economy, people don't have extra money for "optional" legal work. A simple will might, however, be the cheapest service I offer. Sure, estate planning can get complex, but I can accomplish most simple will goals (naming a guardian for child, specifically giving some property to people) very affordably.

So, if you don't have a will, you should consider getting one done or at least get some legal advice on what would happen to your estate without a will and then make an informed decision. Maybe you have tons of money and want to give some to a friend who wouldn't otherwise be entitled to a share of your estate. Maybe you have your grandfather's watch and really want your nephew to have it. Maybe all you need is the peace of mind that your kids will have a guardian of your choosing. If you get over the hurdle of thinking about your mortality, then it's actually very assuring to have a plan in place.

Child Support

I often get calls or emails about child support. Child support is supposed to be simple. Many times lawyers aren't involved in child support proceedings. The family court even relegates this to a special session of the court that is conducted by Support Magistrates who are sorta like judges but not really. Family court has forms for you to fill out to request ordered support or a modification of a prior order. There is a statute on the books and you simply match up income to number of kids and voila - support order.

But of course things rarely go that smoothly.

If you or anyone close to you have been through a support proceeding you will relate to how easily these cases can get complex, weird and messy. The statutory model works for a situation where you have a couple where, for example, a father (or mother if she is not the one living with the kids) has been working the same job for 10 years, is salaried and has enjoyed regular gradual increases in income over his career. The couple splits but have two children who are the only children of the father. In this simple case in New York, the support magistrate would calculate support based on this regular and consistent income and assign the statutory support rate of 25%.

In 11 years of practice, I don't believe I've once seen such a simple example. More typical is the situation where the non-custodial parent (the one the kids aren't living with and therefore the one who is paying support to the custodial parent) has had sporadic or inconsistent income. Maybe he worked in a booming industry right before the recession and is coming off some very good years, but was just laid off and is struggling at a much lower rate of pay. (I know that there are a lot of people experiencing this right now.) Or he's doing great and just landed a job paying double his last job, which he worked at for the last ten years. Now the court has to evaluate an earning capacity of this non-custodial parent, and it has to be fair, right?

I've heard horror stories on both sides: The executive who voluntarily leaves a high paid job for the purpose of having a lower support obligation, and works an under the table job; or, the lucky one who gets a large bonus one year which has no likelihood of repeating but on which the court is now going to base a child support obligation for the next 21 years. And then there are the families with multiple children from different relationships. Again, the law has a chart of percentages based on the number of children. These rates are percentages of basically gross income (it's more complex than that, but for purposes of this discussion think of it as gross income). So for the non-custodial parent of five, a separation can take a relatively large chunk out of take home pay, which could be as low as 70% of gross. That non-custodial parent now has 35% of his pay to live on. Could be tough, but the children need support and current law protects this.

Now think of the situation (more common than you would think) of the father of three kids from an earlier marriage for whom he is ordered to pay 29% of his income as support. He remarries down the road, has two more kids, and because he is relationship-challenged, separates from this mother and now is before a support magistrate for "lucky child support order number two". Is he going to be ordered to pay 25% of his income (the going rate for two kids), which is already reduced by say 25% for deductions and 29% for the existing support order, which would net him with 21% of his income to live on? If he makes $50,000.00 a year, he'd roughly have $800 a month to live on.

This opens up a lot of issues for debate. Should we care that this guy (or gal) is going to struggle to make ends meet? Should he just step up and make it work? Get a second or third job, and live in his parents' basement at 40? Or should the court deviate from the statute (as it is allowed to do in some circumstances) and order less support? This is a common example of how a simple support determination can become complex. And, ahem, why you often actually need a lawyer to help you in family court.