Traffic Accident FAQs

What Should I Do If I’m Involved in a Traffic Accident?

The most important thing you can do is document the entire situation by taking careful notes soon after your accident. While this step is often overlooked, it can help make the claim process as a whole easier on you — and increases your chances of receiving all the compensation to which you are entitled. In addition, having notes to remind you of all the details of what happened and what you went through is far easier and more accurate than relying on your memory.

Things to write down as soon as possible: begin with what you were doing and where you were going, the people you were with, the time, and the weather. Then, include every detail of what you saw, heard, and felt. Be sure to add anything you remember hearing anyone — a person involved in the accident or a witness — say about the accident.

Finally, make daily notes of the effects of your injuries. For example, you may suffer pain, discomfort, anxiety, loss of sleep, or other problems which are not as visible or profound as another injury but for which you should demand additional compensation. These notes can be beneficial months later when you put together all the important facts into a final demand for compensation.

Reporting to the Department of Motor Vehicles

Many states have laws requiring that people involved in a vehicle accident resulting in physical injury or a certain amount of property damage report that accident in writing to the state’s department of motor vehicles. Check with your insurance agent or your local department of motor vehicles to find out the time limits for filing this report; you often have just a few days. Also, be sure to ask whether you’ll need any specific form for the report.

If you must file an accident report, and the report asks for a statement about how the accident occurred, give only a very brief statement — and admit no responsibility for the accident. Similarly, if the official form asks what your injuries are, list every injury, not just the most serious or obvious. An insurance company could later have access to the report, and if you have admitted some fault in it or failed to mention an injury, you might have trouble explaining yourself.

What Determines Who Is Responsible For a Traffic Accident?

Figuring out who is at fault in a traffic accident is a matter of deciding who was careless. And for vehicle accidents, there is a set of official written rules telling people how they are supposed to drive and providing guidelines by which liability may be measured. These rules of the road are the traffic laws everyone must learn to pass the driver’s license test. Complete rules are contained in each state’s Vehicle Code, and they apply not only to automobiles but also to motorcycles, bicycles, and pedestrians.

Sometimes, a violation of one of these traffic rules is obvious and is clearly the cause of an accident — for example, one driver runs a stop sign and crashes into another. In other situations, whether or not there was a violation will be less obvious — a typical example is a crash that occurs when drivers merge into a single lane of traffic. And at other times, there may have been a traffic violation that had no part in causing the accident and therefore should not affect who is liable.

What If The Cause Of A Traffic Accident Is Not Clear?

It is sometimes difficult to say that one particular act caused an accident. This is especially true if what you claim the other driver did is vague or seems minor. But suppose you can show that the other driver made several minor driving errors or committed several minor traffic violations. In that case, you can argue that the combination of those actions caused the accident.

Special Rules for No-Fault Policyholders

Almost half the states have some form of no-fault auto insurance, also called personal injury protection. In general, no-fault coverage eliminates injury liability claims and lawsuits in more minor accidents in exchange for direct payment by the injured person’s own insurance company of medical bills and lost wages, up to specific dollar amounts, regardless of who was at fault for the accident. However, no-fault coverage often does not apply to vehicle damage; those claims are still handled by filing a liability claim against the one responsible for the accident or looking to your own collision insurance.

In a Traffic Accident, How Can I Help Prove to An Insurance Company That The Other Driver was at Fault?

One place to look for support for your argument that the other driver was at fault is in the laws that govern driving in your state — usually called the Vehicle Code. A simplified version of these laws, sometimes called “The Rules of the Road” is often available at your local department of motor vehicles office. The complete Vehicle Code is also available at many local departments of motor vehicle offices, most public libraries, and all law libraries; there is a law library at or near every courthouse and at all law schools.

The index at the end of the last volume of the Vehicle Code references many “rules of the road,” one or more of which might apply to your accident. A librarian may be willing to help you with your search, so don’t be afraid to ask. If you believe a rule might apply to your accident, copy its exact wording and the Vehicle Code section number so that you can refer to it when you negotiate a settlement of your claim.

Can I Be Found Liable if My Car is Rear-Ended in a Crash?

If someone hits you from behind, the accident is virtually always that driver’s fault, regardless of why you stopped. A basic rule of the road requires that a driver be able to stop safely if a vehicle stops ahead of the driver. If the driver cannot stop in time, he is not driving as safely as the person in front of him.

The other surefire part of rear-end accident claims is that the vehicle damage proves how the accident happened. If the other car’s front end and your car’s rear end are both damaged, there can be no doubt that you were struck from the rear.

In some situations, both you and the car behind you will be hit when a third car runs into the car behind you and pushes it into the rear of your vehicle. In that case, the third car’s driver is at fault and against whose liability insurance you would file a claim.

Besides, Rear-End Collisions, Are There Any Clear Patterns of Liability In Traffic Accidents?

A car making a left turn is almost always liable to a car coming straight in the other direction. However, exceptions to this near-automatic liability can occur if:

  1. the car going straight was going too fast (this is usually difficult to prove)
  2. the car going straight went through a red light, or
  3. the left-turn car began its turn when it was safe, but something unexpected happened which made it have to slow down or stop its turn

Whatever the contributing factors, the law says the car making the left turn must wait until it can safely complete the turn before moving in front of oncoming traffic. Also, the location of the damage on the cars sometimes makes it difficult for the other driver to argue that the accident happened in some way other than during a left turn. So, if you have had an accident in which you ran into someone who was making a left turn in front of you, almost all other considerations of fault go out the window, and the other driver is nearly always liable.

Elder Fraud FAQs

Will I be Required to Sell my House to pay for Nursing Care if my Spouse Becomes Sick and Requires a Stay in a Nursing Home?

If you need Medicaid assistance to pay for nursing home care for your spouse, the marital residence will be an exempt asset, up to an equity value of $858,000, as long as you (the “community” spouse) continue to live there. Additionally, if a mortgage or home equity loan is outstanding against the residence, excess resources can be used to pay down those loans without resulting in a penalty period for the Medicaid applicant.

What Will Happen to my Estate if I do not Have a Will?

If you do not have a Last Will & Testament, the rules of intestacy will govern the distribution of your estate. If you have a spouse but no children, the estate passes to the surviving spouse. If you leave a surviving spouse and children, the first $50,00 plus one-half of the remainder will pass to your spouse and the other one-half in equal shares to the children. If you have no surviving spouse or children, your estate passes to your parents or your parents’ descendants.

Why is it Important to have a Living will and Health Care Proxy?

Under the existing NYS Public Health Law, doctors cannot determine the quality of life of a patient. Therefore, if you wish to give someone the ability to refuse medical treatment on your behalf, you must grant that power under a written Living Will to a designated individual, known as your Health Care Proxy.

Why do I need a Power of Attorney?

A General Durable Power of Attorney allows you to designate an individual of your choice to make decisions regarding your financial and personal affairs. This is a vital document because if you do not have an existing Power of Attorney and become unable to handle your own affairs, the court must conduct a hearing to determine who should serve as your Guardian. Guardianship proceedings can be costly and lengthy and can be avoided by simply designating a General Durable Power of Attorney.

How can I make sure that my disabled child is taken care of after I am no longer able to oversee their care?

Disabled children can be expressly provided for under the terms of a properly drafted trust provision contained in your Last Will & Testament, commonly known as “Supplemental Needs Trust.” This type of trust allows you to set aside an unlimited amount of funds for the benefit of a disabled child.

What are the tax consequences if I sell my house and move into an apartment or if I make a sizable gift to my children?

A taxpayer of any age can now exclude up to $250,000 ($500,000 for joint filers) of gain on the sale of their primary residence with no limitation. However, suppose the proceeds from the sale or other assets are used to make gifts to the children or other family members. In that case, there will be a requirement that a gift tax return is filed if the gift to any single individual exceeds the annual exclusion amount of $15,000 ($30,000 if the gift is from a married couple).

What is Required in Settling my Estate after I die, and What are the Tax Consequences?

The process of settling your estate after you die is dependent mainly on the arrangements you have made during your lifetime. If most of your assets are jointly held or have a designated beneficiary, these assets will not require a “probate” through the court. Instead, they will simply transfer to the named individual by law. However, if your estate exceeds the federal unified credit amount applicable in the year of your death ($11.2 million in 2018). In that case, your estate will be obligated to pay federal estate taxes ranging from approximately 18% to 40% of the amount exceeding the taxable limit. NYS will impose a separate state estate tax if your estate exceeds $5.25 million. These taxes can sometimes be minimized, or in some cases, completely avoided, by use of various estate planning techniques.

Where Do I Start When Making Burial Arrangements?

Burial arrangements contracted directly with an NYS licensed funeral home allow you to set up a prepaid burial account using an irrevocable trust agreement with the funeral home. If correctly set up, these accounts are not counted as a resource for Medicaid eligibility purposes, and there is no limitation on the amount that can be set aside.

Can I protect my assets for my children and still make sure that I will have access to nursing home care if required?

The Medicaid qualification process involves a two-step process to determine your eligibility for nursing home care. The first step is an examination of all your financial transactions during the “look-back” period. The look-back period is currently five years. The second step is to determine whether any gifts occurred during the “look-back” period and, if so, to calculate a penalty period based on the amount of the gift. The theory is that the Medicaid agency attempts to determine how many months you could have paid for your care in a nursing home if you had not given away the funds.

What can I do to protect myself from becoming a physical or financial burden to my children?

All of these steps outlined in the previous questions, when implemented correctly and with appropriate consideration given to your family circumstances, will help you provide a structured plan that will protect yourself and your family members from the often catastrophic and unexpected burdens that long-term care can impose.

Civil Litigation FAQs

What is civil litigation?

Civil Litigation is a lawsuit between two or more people or entities that does not seek criminal sanctions. Instead, the remedy sought in Civil Litigation is usually money or a judgment requiring one party to do something or stop doing something. Many cases may involve Civil Litigation, such as landlord/tenant cases, accident cases, breach of contract cases, discrimination cases, business disputes, medical malpractice, etc.

Who are “Plaintiffs” and “Defendants”?

Plaintiff or Petitioner is the person or entity that starts the action. The Defendant or Respondent is the person or entity that defends or responds to the action. Some jurisdictions use the terms differently for specific actions.

What do I do if I am served with a complaint?

The first question you need to answer is what you are being sued for and when your answer to the complaint is due. The most effective way to understand your options is to contact an attorney. In many cases, you only have 30 days from the date you were served to respond to the complaint, so the appointment with an attorney should be scheduled immediately.

Can I represent myself?

During a civil suit, it is not required that you have an attorney. You always have the right to represent yourself. No other person than an attorney may represent you in a court of law.

When must I Respond to a Civil Action?

That depends upon the type of case. Concerning filing an action, there are time limits called “Statutes of Limitation,” which determine the time frame within which specific actions must be filed. A Statute of Limitations is a bar to a suit if the Statute is missed. Differing Statutes of Limitation govern different actions. Although these sound like hard and fast rules, many other circumstances may affect the length and applicability of a Statute of Limitations. Therefore, your first priority should be to contact an attorney to ensure that you haven’t missed the Statute.

Concerning a response to a civil action, a good rule of thumb to follow is that you must answer within twenty days. However, seek the advice of counsel before filing any answers. There may be grounds for motions that could be filed to end the suit before your response is due.

What should I take with me when I meet my Attorney?

You should bring the summons and complaint. There may be errors with either of those documents that could entitle you to ask the court to dismiss the case. Aside from that, the complaint contains the factual allegations against you that your attorney will have to refute. In addition to the summons and complaint, you should take any documents related to the lawsuit’s subject matter. Remember that the term “documents” is not limited to pieces of paper. It includes all manner of electronic communications, including emails. Discuss the facts of the case thoroughly and frankly with your attorney in as much detail as possible. Pay particular attention to the sequence of events. It is always tempting to rush ahead to the part of the story that you think clinches the case in your favor, but the series of events is at least equally important. Also, take a moment before your appointment to create a list of the names of people who know about the matter described in the complaint. Be sure to include contact information for the people you identify because your attorney will want to talk with them to prepare them to be witnesses in the case.

What will I have to do after I meet with my Attorney?

After the complaint and answer are filed, the case proceeds through a process called discovery. In discovery, the parties exchange information to (1) determine whether the case can be settled without a trial; and (2) prepare for trial. There will probably be a mediated settlement conference in which a third party will review the case and discuss settlement possibilities with the parties. If settlement discussions break down, the case will go on to trial.

How long will this take?

The time it takes for a lawsuit to proceed through the judicial system varies with the complexity of the issues involved, the number of parties involved, and the county in which the suit is brought. Expect the process to be one year at a bare minimum, but 18 months to two years is not uncommon in complex cases.

Estate Planning FAQs

Will I be Required to Sell my House to pay for Nursing Care if my Spouse Becomes Sick and Requires a Stay in a Nursing Home?

If you need Medicaid assistance to pay for nursing home care for your spouse, the marital residence will be an exempt asset, up to an equity value of $858,000, as long as you (the “community” spouse) continue to live there. Additionally, if a mortgage or home equity loan is outstanding against the residence, excess resources can be used to pay down those loans without resulting in a penalty period for the Medicaid applicant.

What Will Happen to my Estate if I do not Have a Will?

If you do not have a Last Will & Testament, the rules of intestacy will govern the distribution of your estate. If you have a spouse but no children, the estate passes to the surviving spouse. If you leave a surviving spouse and children, the first $50,00 plus one-half of the remainder will pass to your spouse and the other one-half in equal shares to the children. If you have no surviving spouse or children, your estate passes to your parents or your parents’ descendants.

Why is it Important to have a Living will and Health Care Proxy?

Under the existing NYS Public Health Law, doctors cannot determine the quality of life of a patient. Therefore, if you wish to give someone the ability to refuse medical treatment on your behalf, you must grant that power under a written Living Will to a designated individual, known as your Health Care Proxy.

Why do I need a Power of Attorney?

A General Durable Power of Attorney allows you to designate an individual of your choice to make decisions regarding your financial and personal affairs. This is a vital document because if you do not have an existing Power of Attorney and become unable to handle your own affairs, the court must conduct a hearing to determine who should serve as your Guardian. Guardianship proceedings can be costly and lengthy and can be avoided by simply designating a General Durable Power of Attorney.

How can I make sure that my disabled child is taken care of after I am no longer able to oversee their care?

Disabled children can be expressly provided for under the terms of a properly drafted trust provision contained in your Last Will & Testament, commonly known as “Supplemental Needs Trust.” This type of trust allows you to set aside an unlimited amount of funds for the benefit of a disabled child.

What are the tax consequences if I sell my house and move into an apartment or if I make a sizable gift to my children?

A taxpayer of any age can now exclude up to $250,000 ($500,000 for joint filers) of gain on the sale of their primary residence with no limitation. However, suppose the proceeds from the sale or other assets are used to make gifts to the children or other family members. In that case, there will be a requirement that a gift tax return is filed if the gift to any single individual exceeds the annual exclusion amount of $15,000 ($30,000 if the gift is from a married couple).

What is Required in Settling my Estate after I die, and What are the Tax Consequences?

The process of settling your estate after you die is dependent mainly on the arrangements you have made during your lifetime. If most of your assets are jointly held or have a designated beneficiary, these assets will not require a “probate” through the court. Instead, they will simply transfer to the named individual by law. However, if your estate exceeds the federal unified credit amount applicable in the year of your death ($11.2 million in 2018). In that case, your estate will be obligated to pay federal estate taxes ranging from approximately 18% to 40% of the amount exceeding the taxable limit. NYS will impose a separate state estate tax if your estate exceeds $5.25 million. These taxes can sometimes be minimized, or in some cases, completely avoided, by use of various estate planning techniques.

Where Do I Start When Making Burial Arrangements?

Burial arrangements contracted directly with an NYS licensed funeral home allow you to set up a prepaid burial account using an irrevocable trust agreement with the funeral home. If correctly set up, these accounts are not counted as a resource for Medicaid eligibility purposes, and there is no limitation on the amount that can be set aside.

Can I protect my assets for my children and still make sure that I will have access to nursing home care if required?

The Medicaid qualification process involves a two-step process to determine your eligibility for nursing home care. The first step is an examination of all your financial transactions during the “look-back” period. The look-back period is currently five years. The second step is to determine whether any gifts occurred during the “look-back” period and, if so, to calculate a penalty period based on the amount of the gift. The theory is that the Medicaid agency attempts to determine how many months you could have paid for your care in a nursing home if you had not given away the funds.

What can I do to protect myself from becoming a physical or financial burden to my children?

All of these steps outlined in the previous questions, when implemented correctly and with appropriate consideration given to your family circumstances, will help you provide a structured plan that will protect yourself and your family members from the often catastrophic and unexpected burdens that long-term care can impose.

Adoption FAQs

Does a child become mine when I adopt them?

Yes, adoption establishes all rights and duties to adoptive parents as if they were the child’s biological parents. For example, an adopted child can inherit property from their new parents and receive care from them just like a biological child. 

Who Can Adopt a Child?

  • Any adult married couple.
  • Any unmarried adult.
  • Adult, unmarried persons together, under limited circumstances. (There must be a valid parent-child relationship).An adult married person living separately from their spouse pursuant to:
    • A decree or judgment of separation.
    • Written separation agreement. (Note: the other spouse will have no legal rights or responsibilities relative to the adoptive child.)

When Can a Child Be Adopted?

A child may be adopted under three circumstances:

  1. If both parents have passed away.
  2. If the parent-child relationship with both parents has been terminated.
  3. If a step-parent wants to adopt a child and the biological parent’s rights have been terminated.

When Can a Stepchild Be Adopted?

A step-parent may adopt a child if the child is at least two-years-old; the parent-child relationship has been terminated with the other parent; the step-parent has had possession of the child for at least six months (if the other parent consents to adoption) or at least 12 months if the other parent does not consent to adoption.

How are a parent’s rights terminated?

A parent may have their rights terminated if the court determines it is in the child’s best interest. The court must also determine that the parent has either abandoned the child, was imprisoned for more than two years, neglected the child, abused the child, failed to pay child support for more than one year, used drugs, or was mentally ill.

Must the child give his consent to be adopted?

A child over 14 years of age must consent to be adopted unless the court finds it in their best interest. In this case, no other individual’s consent will be required. 

How long does adoption generally take?

It depends on the circumstances. Some adoptions take place quickly, while others can take over a year. Most courts will try to expedite adoption proceedings to shorten the process.

Child Support FAQs

How does the court determine how much child support a parent must pay?

The New York law that governs children’s support is referred to as the Child Support Standards Act (“CSSA”). According to the CSSA, the basic child support obligation is determined as a percentage of the non-custodial parent’s income minus certain deductions, most commonly FICA (Social Security and Medicare taxes). The rates are:

  • 17% for one child.
  • 25% for two children.
  • 29% for three children.
  • 31% for four children.
  • At least 35% for five or more children.

However, the formula is adjusted for parents with income below the self-support reserve or the poverty income guideline amount. There is also currently a “cap” on the combined parental earnings of both parties at $130,000.00 for determining the initial amount of support to be paid.

What if the non-custodial parent is unemployed or underemployed?

Unemployed and underemployed individuals will usually be directed to pay child support based on their earning capacity due to the court “imputing” income to that party based on what the Court believes that individual should be earning. An individual who has honestly fallen on hard times must establish diligent efforts to find the former income level. If unemployment results from a disabling injury, expert testimony may be needed to show the disability and its effect on the person’s ability to earn. If there is an existing order, it will continue to govern until a modification petition has been filed.

What happens if the non-custodial parent works “off-the-books”?

Proving actual income can be difficult in situations where the custodial parent is not familiar with the finances of the non-custodial parent. However, suppose the custodial parent can prove the actual expenses of the non-custodial parent. In that case, the Court may impute income based on what the non-custodial parent spends each month to support their lifestyle.

Can the parents agree to a different amount?

The parties are free to enter into a stipulation (agreement) in which the child support agreed upon is more or less than the CSSA basic child support obligation. However, the agreement must contain specific language showing that the parties were aware of what the support would have been had they used the CSSA percentages, and the “deviation” from this CSSA amount must be adequately explained.

Does the judge have any discretion when establishing a child support obligation?

Contrary to what many believe, the courts are free to determine an amount of child support that is different from the CSSA basic child support obligation if that amount is “unjust or inappropriate.” To do so, the Court must issue a written order explaining the deviation from the basic child support obligation by listing the factors it considered and the reasons that the Court did not order the presumptively correct amount of child support. The law contains a list of enumerated factors, one or more of which can be the basis of the deviation. In practice, however, it is rare for a court to consider the CSSA basic child support obligation to be “unjust or inappropriate.”

What other forms of support will the court direct?

In addition to periodic payments of child support, the Court can direct the parents to pay a share of the cost of providing medical insurance for the child, the child’s uncovered medical expenses, as well as child care and education costs.

How do I file for child support or spousal support?

If you do not have a matrimonial action pending in the Supreme Court, you can file for child support in Family Court. However, if you are in the midst of a divorce or separation action, child support should be determined in that action.

When will the child support obligation become effective? can i get child support retroactive to the birth of the child?

Child support is retroactive to the date that you filed your request with the Court, not the child’s birth. However, suppose the custodial parent was receiving public benefits. In that case, the County Department of Social Services can sue the non-custodial parent for child support retroactive to the date that the child became eligible for services.

At what age does child support cease?

Under the CSSA, parents are responsible for supporting their children to twenty-one years old unless sooner “emancipated.” A child may become emancipated before turning twenty-one if:

  • they are employed full time and are self-supporting
  • if the child joins the military,
  • gets married,
  • dies, or
  • leaves the custodial parent’s residence to live elsewhere permanently.

A parent may also be relieved of their obligation to support a child if they unjustifiably refuse parental control and guidance and refuse communication, called “constructive emancipation.” But, again, these determinations are made on a case-by-case basis.

What can i do to collect past-due child support or spousal support?

There are many methods by which past-due support can be collected. The most commonly used process is income execution, sometimes referred to as a garnishment. This mandate directs an employer to withhold a certain sum of money from the payor’s paycheck. The amount withheld is the entire current support obligation, plus a certain amount to be paid towards satisfying any established support arrears. Another standard method to collect support arrears, a money judgment, can be enforced by seizing bank accounts and other assets. Getting a money judgment for support arrears requires a petition alleging a violation of support, commonly brought in the Family Court.

If the non-custodial parent earns more (or less) now, will their child support obligation increase (or decrease)?

Perhaps. There are two basic approaches to upward modification of child support. The first method is only available to a custodial parent who receives services from the NY Support Collection Unit (SCU). Suppose the custodial parent receives child support through SCU. In that case, the non-custodial parent may be required to pay a cost of living adjustment (COLA), equal to approximately 10% of the existing obligation added to it. Either parent may file objections to the COLA adjustment, which causes a Family Court hearing to be held to determine a new child support obligation employing the percentage of income method of the CSSA if the Court believes this adjustment to be “appropriate.” The other way child support is modified – upward or downward — is by petitioning the Court based on a change of circumstances. For example, if the obligation resulted from a stipulation or a separation agreement, the custodial parent will also have to show that the change of circumstances was unreasonable or unanticipated.

I have a child support order against me, but now my child has moved in with me. can i stop paying child support?

Yes, but legally only once the Court has terminated your obligation by a subsequent order. It would be best if you did not stop paying court-ordered child support without also seeking court intervention.

What can I do if I disagree with the support magistrate’s decision?

You have thirty days to file objections to the order, which means that a Family Court judge will review the decision. If the judge denies your objections, you can appeal this denial to the Appellate Division of the Supreme Court.

Divorce FAQs

What are the grounds for a divorce?

Effective October 12, 2010, New York State has seven grounds for divorce. Four of the “grounds” are based on the “fault” of one of the parties due to cruel and inhuman treatment, abandonment for one or more years, imprisonment for three or more years, and adultery.

The other grounds, one year of living apart under a separation judgment granted by a Court or under a separation agreement signed by the parties, enable grounds for a “no-fault” divorce, in which neither spouse is judged to be at fault, provided that the spouse seeking the divorce has substantially complied with the provisions of the judgment or agreement. The parties also may obtain a no-fault divorce to the extent that one party alleges that the relationship between the parties has broken down irretrievably for at least six months.

How long must I reside in new york before I can begin my divorce action?

An action for divorce may be maintained only when:

  • The husband and wife were married in New York, and either of them was a resident of New York when the action is begun and has been a resident of New York for a continuous period of one year immediately before the commencement of the action, or
  • The parties have resided in New York as husband and wife, and either of them is a resident of New York when the action is begun and has been a resident of New York for a continuous period of one year immediately preceding the beginning of the action, or
  • The grounds for divorce occurred in New York, and either party has been a resident of New York for a continuous period of at least one year immediately before the beginning of the action, or
  • The grounds for divorce occurred in New York, and both parties were residents of New York at the time of the commencement of the action, or
  • Either spouse has been a resident of New York for a continuous period of at least two years immediately preceding the commencement of the action.

How long will it take to get divorced?

The length of time involved to obtain a divorce or separation from start to finish and its cost is heavily dependent upon the level of cooperation and agreeability of the parties, in addition to the complexity of the case. As a result, a matter may be completed as quickly as a few months or as long as a few years. In our office, the cost of a case ultimately is a function of the level of involvement of the attorneys and our support staff, as all of our matters are handled on an hourly basis.

What are the laws in new york regarding property distribution?

In New York State, property is distributed through “equitable distribution.” Property is first classified as either “separate” or “marital.” New York State Domestic Relations Law defines separate property as:

  1. Property acquired by the other party prior to the marriage.
  2. Property acquired by the other party by bequest, devise, descent, or gift from a party other than the spouse.
  3. Property acquired by the other party as a result of compensation for personal injuries.
  4. Property acquired in exchange for or the increased value of separate property (non-marital property), except to the extent that such appreciation is due to the contributions and efforts of the other spouse.

There have also been case law developments pertaining to the determination of separate property, which add meaning to these basic definitions. Separate property is not subject to equitable distribution between divorcing or separating parties.

Relative to the equitable distribution of marital assets and liabilities, it is essential to know that equitable does not necessarily mean an equal division, and our Domestic Relations Law has set forth a number of factors that should be considered by the parties or a court in determining what is equitable. Those factors include:

  • income and property of the spouses, including any marital property divided as a result of the dissolution of marriage
  • any transfer of property made in anticipation of divorce
  • duration of the marriage
  • wasteful dissipation of marital property
  • contributions of each spouse to the marriage and the other spouse’s career, including services rendered in homemaking, childcare, education, and career-building of the other spouse.
  • tax consequences to each spouse
  • any custodial and child support responsibilities
  • the ability of the spouse seeking support to become self-supporting and the time and training necessary
  • any reduced lifetime earning capacity as the result of having foregone or delayed education, training, employment, or career opportunities during the marriage
  • whether the spouse from whom maintenance is sought has sufficient property and income to provide maintenance for the other spouse
    age and health of both spouses
  • present and future earning capacities of both spouses
  • any other factors the court deems just and equitable

Home Buying FAQs

What is a closing?

When a buyer and seller agree on a sale of real property, a contract is signed. This contract is “open” and will “close” when the buyer pays the seller, and legal ownership is transferred. However, since much of the work involved in reaching that goal is performed well before the closing date, the entire transaction is commonly referred to as a closing.

When should I find an attorney – What do they do – What do they charge?

You should find an attorney as soon as possible to have legal guidance throughout the entire transaction. An attorney will review the contract to ensure that it reflects the intention of the buyer and seller and that the property will be transferred so that the buyer becomes the owner and the seller is paid the sale price. HoganWillig charges a flat fee for representation in a closing.

Do I need a home inspection – What does the inspector do – Should I be there?

A home inspection will alert you to potential problems in your house’s structure, construction, and mechanical systems. While this is no guarantee of preventing future problems, it is an essential first step to ensuring you are getting what you intend. Your presence at the inspection will give you direct experience on issues/concerns that may suggest renegotiating your contract or canceling it. Additional inspection services that may be recommended to be done are radon and lead-based paint and those required for septic systems, wells, and sump pumps.

What gets sold along with the house?

Generally, the contract includes anything attached to the physical structure; anything removable typically does not stay. However, items can be negotiated as part of an offer, and the agreement put into the contract.

When do I apply for a mortgage?

A buyer can apply for mortgage pre-approval even before finding a house. Then, once you have a contract to purchase a property, your mortgage application can be completed, and you can receive a quick response from your lender.

What comes next after the mortgage commitment?

Once you receive your written commitment, sign and return it to your lender to process your loan. Carefully read it to see if any conditions must be satisfied before closing is authorized to be scheduled. If you are not sure, check with your attorney and make sure that they receive a copy.

What about homeowner’s insurance?

You will need Homeowner’s Insurance to schedule your closing with your lender’s attorney. You can start checking into this as soon as you have applied for your mortgage. Decide what coverage and company you want, and let your insurer or agent know when you have received your commitment. Once the closing has been scheduled, let your insurance agent know that date. If you are not getting a mortgage to buy your house, you still need insurance to protect yourself in case of fire or other loss. If you are selling, keep your insurance valid until after the closing.

Why is everyone always waiting for the search & survey?

The search (Abstract of Title) is a written record of all the recorded documents in the County Clerk’s Office related to your house’s land, which may go back hundreds of years. Your attorney will examine it to determine who has the legal ability to transfer the property. The survey is a small map of the land, showing the location of all structures. Together, these items are called the “title documents,” their examination is essential to ensure that you will be the owner of the piece of land you intend to purchase. In addition, they are necessary to prepare title insurance for additional protection for both the new lender and owner. Finally, the seller’s attorney will use these items to determine what documents the seller will need to sign and what other curative documents will be required for the closing to occur.

When do I move?

A buyer usually takes possession of the property at closing. However, sometimes one party may prefer pre-closing or post-closing occupancy. As long as both parties are willing to accommodate the needs of the other, the agreement can be included in the contract to protect everyone involved. Be sure to check with your attorney before scheduling your move.

When does the final inspection take place?

The seller must keep the property in the same condition it was in when the contract was signed. Absent fraud, New York is a “buyer beware” state. After closing, any repairs or replacements become the new owner’s responsibility. Your realtor will likely accompany you on the final inspection to ensure that the property still complies with the contract.

Do I have to be at the closing?

Ordinarily, if you are purchasing with a mortgage, you will need to be present to sign all of the closing documents. If this is inconvenient, you may give someone your Power of Attorney so that they can sign on your behalf. However, some lenders will not accept this, so find a lender who will. Sellers and cash purchasers do not need to be present.

Where and when will my closing take place?

Your lender’s attorney decides the closing location. Some choose the County Clerk’s Office for their convenience. If location is crucial to you, check with your lender before completing your application. In New York State, the closing date in a contract is not a material element and can be seen only as a target date. Your attorney will let you know the exact date as soon as scheduled.

Who pays the closing costs?

Allocation of closing costs is determined by the contract, which varies by location. Often the seller pays the costs related to the transfer of the property, and the buyer pays the costs associated with their mortgage. Your attorney can provide you with an estimate when you have your first conversation. Remember, though, that this will only be an estimate.

How much money do I need – Do I get – At closing?

Generally, a buyer will need the purchase price balance, plus their share of prorated real property taxes and the lender’s closing costs. These will be calculated by the lender’s attorney very close to closing. The exact figures will typically not be available until days before your closing. To be ready, your funds should be available locally since you will need to obtain a cashier’s check or bank draft in a short amount of time. Your attorney will give you this information and tell you how these checks need to be broken down and to whom they should be made payable. The closing proceeds will be used to pay off any existing mortgages, and the seller will receive the proceeds of the sale, less any seller’s closing costs.

Paternity FAQs

What is a paternity case?

A Paternity case is a Family Court case that names a child’s legal father if the child’s parents were not married when the child was born, and an Acknowledgement of Paternity was not duly executed.

What is an acknowledgement of paternity?

An Acknowledgement of Paternity is a document, usually completed at the hospital at the time of a child’s birth, stating that the man signing the paper is the child’s father. An Acknowledgement of Paternity does the same thing as an Order of Filiation and will permit a hospital or Department of Health to name the man as the child’s father on the birth certificate.

What happens once a man is named as the legal father?

The man has the right to ask a court for legal custody or visitation rights to the child. He also has to support the child until the child is 21 years old, in most cases. The child may also be entitled to social security benefits and inheritance rights when these are available due to the father-child relationship.

Who is allowed to start a paternity case?

Generally, the following people are allowed to start a Paternity case:

  • the child’s mother,
  • the man who believes he is the father,
  • the child or child’s guardian, or
  • the Department of Social Services if the child is receiving public assistance.

How do I start a paternity case?

A paternity case started by filing a petition in Family Court. The person who starts the case is called the “petitioner.” In most cases, the petitioner is one of the parents. The other parent (who did not initiate the case) is called the “respondent” and must come to court when the court directs.

What happens if the mother was married to another man at the time the child was born?

At the time of the child’s birth, the mother’s husband is presumed the child’s legal father unless the court decides to name a different man based on evidence. The evidence will usually include court testimony by the mother, her husband at the time of the child’s birth, and the man who is purported to be the birth father. The evidence may also include a genetic marker or DNA test.

Bankruptcy FAQs

What is Chapter 7 bankruptcy?

Chapter 7 bankruptcy is when a debtor can eliminate a significant portion of their total debt through the liquidation/sale of certain assets. Contrary to popular belief, many people who file for Chapter 7 bankruptcy can keep their homes, cars, and other necessary items and obtain credit.

What is Chapter 13 bankruptcy?

Chapter 13 bankruptcy involves working with an attorney to create a structured payment plan to pay off a reduced amount of the total debt over a 3-5 year period. The payments are made using the debtor’s disposable income, meaning the money they have left after all necessary expenses have been paid.

How can I re-establish my credit rating after bankruptcy?

The best way is to obtain new credit and make the payments on time. Sometimes an existing creditor may continue to grant you credit based upon a reaffirmation agreement made during the bankruptcy. You may also obtain a secured credit card, where the credit limit is based on the amount of security given, or receive credit using a co-signer.

How long does a typical bankruptcy case take?

The life of a typical Chapter 7 case usually is 4-6 months. On the other hand, a Chapter 13 bankruptcy case takes anywhere from 3-5 years to complete.

Will I have to go to court?

In a Chapter 7 proceeding, the only Court appearance required is your appearance before the Court-appointed Trustee at your Meeting of Creditors. This meeting usually takes place between 20-45 days after a petition is filed.

In a Chapter 13 case, you must also appear at a Meeting of Creditors with your Chapter 13 trustee. In addition, your appearance may also be required at the hearing in which the Bankruptcy Court considers final approval of your plan of repayment. This hearing, called a Confirmation Hearing, usually occurs approximately 3-6 months after a Chapter 13 petition is filed.

What is a meeting of creditors?

Section 341 of the United States Bankruptcy Code affords creditors the right to meet with the debtor to determine if a discharge or a reorganization of debt is appropriate based upon the facts and circumstances presented by a debtor in their bankruptcy petition. While creditors technically have the right to attend these proceedings and question the debtor, creditors rarely appear at these proceedings.

In Chapter 7 proceedings, the Meeting of Creditors serves two essential purposes: (A) the Court, through examination by the Court-appointed Trustee, verifies that all of the representations contained in your bankruptcy petition are true and correct to the best of your belief and knowledge. In addition, the Bankruptcy Court Trustee also utilizes this meeting to verify on behalf of the Court that there are no assets that may be considered non-exempt, which the Trustee could sell to repay part, or all, of your debt. A typical meeting of creditors in a Chapter 7 proceeding takes approximately 5-10 minutes to complete.

In Chapter 13 proceedings, a debtor must appear before the Chapter 13 trustee. In a Chapter 13 case, the meeting of creditors serves a slightly different purpose. In addition to verifying that all of the representations made by a debtor are true and correct, the Chapter 13 trustee will also confirm that the debtor has the financial ability to make the payments proposed in the proposed Chapter 13 plan.

Verification of a debtor’s ability to make payments in a Chapter 13 case is based upon both the debtor’s testimony at the meeting and various documentation, usually tax returns and pay statements that must be presented to the Chapter 13 trustee to verify the representations made in your Chapter 13 petition. As in a Chapter 7 case, a typical meeting of creditors in a Chapter 13 case takes 5-10 minutes to complete.

How often can I file for protection under Chapter 7?

An individual debtor can obtain relief under Chapter 7 every eight years. Please note, however, that the 8-year period does not run from the date of the filing of the first petition but rather from the date the Court issues the bankruptcy discharge. If you have filed for Chapter 7 protection in the past, you can file a second Chapter 7 petition so long as the applicable time has passed since the issuance of the discharge in your prior case.

Can utility bills be discharged in a bankruptcy proceeding, and will my utility services be terminated?

Obligations to utility services can be listed in a bankruptcy petition. In addition, it is a violation of Public Service Commission regulations for utility services to terminate the service to a bankrupt based on their filing a bankruptcy petition. However, a utility may, and in most cases, will require that you pay a security deposit to that utility to guarantee that post-petition obligations shall be paid in a timely fashion.

Can my employer discriminate against me because I have filed for bankruptcy?

No. Federal law prohibits governmental units and private employers from discriminating against you because you file a bankruptcy petition or have failed to pay a dischargeable debt.

Are student loans dischargeable in bankruptcy?

Generally, student loans are not dischargeable in a bankruptcy proceeding. 11 USC Section 523(a)(8) cites two exceptions to this general rule:

The student loan may be discharged if it is neither insured nor guaranteed by a governmental unit nor made under any program funded in whole or in part by a governmental bureau or nonprofit institution.

The student loan may be discharged if paying the loan will “impose an undue hardship on the debtor and debtor’s dependents.”

The Big Question: Will I lose my house?

The answer is: Possibly. The Bankruptcy Reform Act of 2005 makes that possibility more likely than before. (Another one of those so-called “consumer protections.”) Also, depending upon the state in which you reside, you may have more or fewer legal protections about whether your house will be forfeit. Up to a certain amount, your house is exempt. Over a particular value, and it possibly could be sold to satisfy your creditors.

Medical Malpractice FAQs

What is medical malpractice?

Medical malpractice, or medical negligence, is simply any negligent conduct by a doctor, hospital, or other healthcare providers which causes injury. Negligence is the failure to use reasonable care. Reasonable care, on the part of a doctor, hospital, or healthcare provider, is that level of care, skill, and treatment that, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by similar and reasonably careful physicians.

What is a standard of care?

The medical community sets standards of care and are based upon what a reasonable and prudent medical professional would do in a given medical situation. Standards of care are usually tied to specific medical procedures. Therefore, they do not necessarily correspond to what a medical professional should ideally have done in hindsight.

Who can file a medical malpractice claim?

Anyone who the negligence of a medical professional has directly injured has a right to file a medical malpractice claim. If a child has suffered an injury, the child’s guardians or family members may file a claim. In the event of wrongful death, the deceased’s dependents or beneficiaries may be eligible to file a claim.

Do I need my medical records?

Yes. It is imperative that the patient obtain a copy of their medical records from the medical care provider. Patients have a legal right to do so. Although our personal injury attorneys can obtain the records for the patient, it is better that the patient do it on their own. An attorney’s request may signal to the medical care provider that a medical malpractice claim is being made and prompt them to omit portions of the record.

How can I find out if I have a case?

Medical malpractice cases are complex and require extensive legal and medical knowledge to establish that mistakes were made. First, the attorney must show that your lawsuit was filed before expiring under the statute of limitations. Then the attorney must review all medical records to ensure that the facts support the claim. A medical expert will then examine the information to establish a deviation from the relevant standard of care that caused the injury. If these facts can be established, then you have a case. Serving all of New York, our medical malpractice lawyers have the knowledge and expertise to evaluate your claim so you can decide if your case is worth pursuing.

What is a statute of limitations?

A statute of limitations determines how long a plaintiff has to file a lawsuit. For medical malpractice in New York, plaintiffs have two years to file a suit from when the injury was or should have been discovered, though the lawsuit must also be filed within four years of the negligent act. Therefore, individuals who think they may have a medical malpractice claim must seek legal advice as soon as possible. While victims of medical malpractice have a legal right to be compensated for their injuries, they forfeit that right if they do not file their claims within the time stipulated by the statute of limitations.

Have I waived my rights if I signed a consent form?

No. Signing a consent form does not give medical professionals a license to perform negligent acts. A consent form only states that you understand the normal risks associated with a given procedure.

What kind of settlement can I expect if I win?

Every case is unique, and there is no standard amount of money you can receive in a medical malpractice settlement. The nature of the negligent act, the circumstances surrounding it, and the extent of the resultant injury are all factors that help determine the amount of your settlement. You can discuss the projected amount of compensation you may receive for your injuries with the experienced medical malpractice lawyers of HoganWillig.

How long will my case take?

The average time from start to finish is about two years. Occasionally, a case can be settled in months; and sometimes, a claim will require three or more years to conclude.

How much will my attorney charge?

Your medical malpractice case will be handled on a contingency fee basis. You only have to pay attorney fees if we obtain a recovery for you, either by settlement or trial. If we do not obtain a recovery, you will owe us nothing. If we agree to represent you, the exact terms of our charges will be spelled out in your written contract with us.