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Pending New York Family Law Changes

Author: Kevin Mahoney

August 26th, 2015

In June of 2015, a bill passed the New York Assembly (A07645) and Senate (05678) relating primarily, but not exclusively, to the determination of maintenance/spousal support.  These changes continue to await the signature of Governor Cuomo.

The amount and duration of maintenance in a divorce case has always been a matter of discretion for the Court with certain enumerated factors of the Domestic Relations Law being considered.   In 2010 the legislature enacted guideline formulas for a court to use when determining “temporary maintenance” while a divorce case was pending.  Naturally, courts, attorneys and litigants began considering those amounts when considering an amount of “non-temporary” maintenance as a result of the fact that the twenty factors listed in the Domestic Relations Law are general in nature and certainly do not yield a specific amount after their consideration.

The temporary maintenance formulas that have been in effect since 2010 provide for two different calculations with the one yielding the lowest amount of spousal maintenance being the guideline amount regardless of whether or not there is also child support being paid temporarily.

The changes that await the Governor’s approval would establish a two track system for determining an amount of temporary and/or post-divorce maintenance.

The first track would be when the spouse paying maintenance is also in a position where he/she will be ordered to pay child support.   That particular scenario has two formulas that are utilized which generally speaking should yield a lower amount of maintenance as a result of the fact that the payor will also be paying child support.

The second track would involve a scenario either where there are no children to support or where the spouse paying maintenance would be receiving child support from the other party.  In the second track, there are also two formulas that are used which are the same currently being used to determine temporary maintenance only.

The temporary maintenance formulas currently use a cap of $543,000 on the income of the payor for the determination but the proposed amendments would use a cap of $175,000 of the payor’s income for the determination.  Overall, the Court still has discretion to consider income over the cap and also to use a different amount than the formulas yield to the extent it finds the amount “unjust or inappropriate” and specifically memorializes its reasoning.

Also new is that the legislation specifically indicates that the amount of maintenance would be subtracted from the income of the payor and added to the income of the payee for calculating child support.

The proposed changes would also require the court to “consider and allocate, where appropriate” the responsibility for each spouse to contribute to family expenses while the case is pending.

An advisory schedule is included relative to the duration of maintenance which is dependent upon the length of the marriage.  For example, a marriage between 15 and 20 years (measured from the date of marriage to the date a divorce action is commenced) would involve a suggested duration of maintenance between thirty and forty percent of the length of the marriage.  As the label suggests, the Court is not bound by the advisory schedule but must consider it along with other factors and is also required to set forth in a written decision or on the record the factors it considered when rendering a decision.

Family Court continues to have the ability to order an award of spousal support in the limited circumstance where a spouse has sought an order of support from Family Court while still being married.  The spousal support formulas are the same as those for temporary and post-divorce maintenance. The advisory schedule for duration does not apply as a spousal support award is terminated either by a further court order (such as a Judgment of Divorce) or the death of either party and otherwise is non-durational.

The pending legislation also specifically indicates that “the court shall not consider as marital property subject to distribution the value of a spouse’s enhanced earning capacity arising from a license, degree, celebrity good will, or career enhancement” which certainly seeks to end the controversial proposition that educational attainments earned during the marriage which can be shown to have resulted in some form of enhanced earning capacity have a value to be distributed.  The amendments do indicate that when a court makes its determination regarding the overall equitable distribution that it “shall consider direct or indirect contributions to the development of the enhanced earning capacity of the other spouse” so while such enhanced earning capacity will no longer formally exist as an asset to be valued and distributed, it still remains a “consideration” in the distribution of assets.

The provisions of the legislation that impact the determination of temporary maintenance awards would be effective within thirty days and the remaining portions of these amendments would become effective one hundred and twenty days after becoming law.  We will need to continue to keep an eye on the Governor’s office as to if/when that occurs.

What is the main difference between German and American law?

Author: Anna Szyperski

August 17th, 2015

Being a German intern in a U.S. law firm, many people have asked me about the differences between German and American law.  I would say the main difference is that Germany has a civil law system, whereas the U.S has a common law system. In contrast to common law, civil law is codified, meaning we have updated legal codes which cover all matters that are capable of being brought to court, the applicable procedure and the appropriate punishment for each offense.

In a civil law system, the judge has an inquisitorial role. It is his or her job to establish the facts of the case and to apply the statutes of the applicable code. The judge will question the witnesses, interrogate suspects, reach a verdict and decide on a penalty.  There are no pleas in the German legal system, so even if the defendant does plead guilty the case will still go to trial and the judge may declare the defendant not guilty if he or she believes there is evidence to indicate that the defendant is innocent.

Due to the fact that a judge or a panel of judges will decide all cases that come to court, there is no use for juries in the German legal system. In some cases (usually medium size cases) a judge will be assisted by two lay people whose votes do count just as much as the judge’s vote. The lay people will consult with the judge after the trial and the judge will inform them about the legal aspects of the case, before they make their decision.

Although the civil law system does seem to be more structured and stable, because laws are codified, the flexibility of the common law system is a big advantage since it can quickly adapt to current situations without Parliament having to pass a law.

Take care of your property, even when moving out.

Author: Bruce Ikefugi

August 12th, 2015

A peculiar situation arose a few weeks ago which greatly jeopardized one of our closings.  I won’t tell you whether we represented the Seller or the Purchaser; from the point of view of this entry it doesn’t matter.  Firstly, I would say there are two types of Sellers, those that take very good care of the property and maintain everything in great condition until they finally move out.  The second type cut back on the landscaping and repairs, and do the minimal clean up needed when they move out.  Most Sellers fall in the middle of these two extremes.

However, in this case, the Sellers preformed next to no maintenance after accepting the Buyers offer.  The Buyers might have ignored this except that as part of the Contract they had agreed to let the Sellers remain in the property for one day after closing, so that the Sellers could clean their new home and move in at their convenience on the next day.  Due to the poor maintenance of the property the Buyers suspected that the Sellers would be less than careful when they moved out on the following day.  The Buyers were also very disappointed in the appearance of the property when they inspected it the day before the closing.  They seriously considered cancelling the purchase.

The transaction closed, but not without much strife and the exchange of a considerable amount of money.  Whether you are buying or selling, you should treat the other party with respect and empathy.  Especially in today’s world, one party or both may need a favor, and in today’s litigious environment attorneys often encourage their clients to say “no.”  If you were reasonable in the contract negotiations, if you’ve been friendly and kept the home in the condition you would like it to be when you moved in, and if, for example, you suddenly need the Buyer to close sooner than planned, (perhaps because the person selling you their property needs to close sooner), I’ll bet the Buyer would be inclined to say “yes.”

Tips for Parents of College Bound Students

Author: Linda Grear

August 5th, 2015

If you have children getting ready for college, the transition can be stressful.

Your college-bound student may have been a high school math wizard, but, don’t assume that they know how to manage their money.  Many students have never had to write out a check and don’t understand basic banking mechanics.  Sit down with your child and prepare a simple budget.

You should consider having them prepare Durable General Power of Attorney and Health Care Proxy documents.

From a practical perspective, you may be paying your child’s tuition and housing expenses, as well as covering him/her as a dependent on your health insurance; however, in the eyes of the law, a child is a legal adult at the age of 18 years and is entitled to privacy protections for financial and health care matters.

Under federal privacy rules (the Health Insurance Portability and Accountability Act known as “HIPPA”) medical providers such as doctors, nurses, and hospital staff cannot speak with you regarding an adult patient’s medical condition without the patient’s consent.  In other words, if your child gets sick and requires medical care, medical information cannot be disclosed to you (even though you are the parent), without proper legal authority.

In the event of a medical emergency, parents may want to assure that they have legal authority to get information from their child’s medical providers.  A Health Care Proxy is a legal document that allows a patient to designate an agent to make health care decisions in the event they are unable to speak for themselves.  Additionally, the document may contain a HIPPA authorization to allow doctors and medical providers to release medical information.

A Durable Power of Attorney is a legal document that appoints an agent to handle personal financial matters and obtain financial information.  There are situations where a Power of Attorney would be useful to collect financial aid or student loan checks payable to the student, handle issues related to financial assistance, and bill paying.  This may be particularly helpful if your student is studying abroad.  If your child runs into issues with his/her passport or the authorities in another country, you can have the authority to help.

Your child may be hesitant to give up privacy rights and may only want you to have access on a need-to-know basis. A family meeting to discuss the pros and cons may be helpful, but, ultimately your child’s decision.  Before your child heads off to college this Fall, sit down and create a plan for handling medical emergencies and other unexpected obstacles.  It will give both parent and child peace of mind.

If you have any questions about the above material, or wish to speak to attorney, please contact HoganWillig, Attorneys at Law at (716)636-7600 or visit www.hoganwillig.com. HoganWillig’s main office is located at 2410 North Forest Road in Amherst, New York with additional offices in Lockport, Lancaster and Buffalo.

Why Your Restaurant Needs An Attorney

Author: Hogan Willig

June 25th, 2015

Whether you are just opening your doors, or have a well-established restaurant, you can agree that the legal and regulatory requirements of running your business are a big part of day-to-day operations. Making sure you are complying with these regulations is a critical factor in the success of your restaurant operation. This article aims to address restaurant-specific laws and obligations and what you, as a business owner, need to be aware of in order to build and grow your business.

One of the first questions an attorney can help you answer is what kind of legal structure you should form. There are a number of options available, such as forming a Limited Liability Company (LLC) or a Corporation. Each has its own benefits to business owners and choosing heavily depends on the kinds of protection that is best for your structure. An attorney will also help you to apply for the various permits a food service business will need to legally operate. Applying for a liquor license or food safety permits, for example, can be a time consuming and frustrating process without the expert knowledge of an attorney.

In the unfortunate event that an accident of some nature happens at your establishment, an attorney will be crucial to helping you litigate and resolve the situation in a way that is least detrimental to the business. Restaurants can be vulnerable on many levels to injuries and lawsuits. Your legal counsel will help you navigate through the complex insurance system and help you consider and obtain the best insurances to protect you and your business.

Labor laws are another aspect of business ownership where the guidance of an attorney can be critical. The various laws governed by the Department of Labor including minimum wage, tips, overtime, difference between full and part-time employees, and employing minors. A misstep in this area can land your business on the wrong end of a lawsuit or with extensive fines.

Restaurant owners and management should be sure to hire a lawyer from the ground level, if possible. This will ensure that large mistakes that may be made without effective legal counsel won’t become costly to fix in the future. The situations in which an attorney can represent you and your business are endless. To learn more about what HoganWillig can do for your business, give us a call today at 716-636-7600.

Student Loan Debt and the Student Aid Bill of Rights

Author: Hogan Willig

June 3rd, 2015

Student loan debt can be a source of much concern and stress for a lot of people. Those of us in the legal profession wholeheartedly understand the effect that undergraduate and graduate debt can have on an individual and their family. President Obama has introduced various initiatives designed to help students manage their loan debt. A recent proposal was launched called The Student Aid Bill of Rights, which aims to identify various problems that some borrowers experience while repaying loans and seeks to help resolve those issues.

Here is the current Student Aid Bill of Rights:

A Student Aid Bill of Rights

  1. Every student deserves access to a quality, affordable education at a college that’s cutting costs and increasing learning.
  2. Every student should be able to access the resources needed to pay for college.
  3. Every borrower has the right to an affordable repayment plan.
  4. And every borrower has the right to quality customer service, reliable information, and fair treatment, even if they struggle to repay their loans.

In order to achieve these ideals, Obama has announced various reforms. One of those is creating a centralized website in which all debt account information can be viewed, as well as where grievances can be filed by borrowers. The use of contractors or servicers by the government in order to collect loans can be confusing and result in a communication gap for borrowers. A single website would reduce confusion and display important information that is helpful to borrower.  Another important directive is to create a framework in which fees charged to borrowers are reasonable and create ways in which borrowers can return their loans to good standing if they are in default.

Although some of the changes announced are vague or uncertain, these, along with various other reforms, have a common goal: to make loan repayment and management easier for the borrower.

For more information about the Student Aid Bill of Rights and other student debt initiatives, visit www.whitehouse.gov and search student loan debt.

Financial Elder Abuse

Author: Hogan Willig

May 23rd, 2015

Sadly, it is all too common that elderly persons fall victim to abuse. Whether it is physical, emotional, or financial abuse, the vulnerability of older individuals makes them easy targets for such ill-treatment. Financial abuse is a difficult type of abuse to recognize and can be easily overlooked because there are not always blatant signs of it.

Financial abuse of an elder is defined as the illegal or improper use of a senior’s money, property, or assets. This week, The Buffalo News wrote a story about an elderly woman who fell victim to this kind of abuse by her own granddaughter.

To make sure someone you know isn’t falling victim to financial abuse, look for these signs:

  • Sudden changes in handling money. If you notice that an elderly person is making frequent withdrawals, withdrawing large sums of money, or placing additional names on a bank account, this may be a sign that they are being exploited.
  • Radical and sudden changes in Last Will and Testament or other estate planning documents. If family members or someone close to the elderly individual are attempting to steal funds or increase their inheritance, a change to the person’s Will or Power of Attorney might occur to secure changes in writing.
  • If an elder is receiving insufficient care. If an individual has the financial capability to receive adequate care, but is not receiving proper care, this may be a sign of abuse and isolation.

If you believe a person is being victimized, there are a few steps you can take. First, privately sit down with the individual you feel is being abused to find out what his or her desires are and what may be in their best interest. Loneliness can put an elderly person at risk for abuse and undue influence because they long for companionship.  This may cause an elderly person to entrust with people that aren’t known very well by them.  Being an active support can be a helpful beginning. If you suspect that financial abuse is happening, you can contact Adult Protective Services or local law enforcement. A meeting with an attorney who is experienced in the field of Elder Law is an extremely important step in ensuring the proper handling of an elder abuse situation.

It is important to make sure assets are protected by having estate planning documents put into place. At HoganWillig, our talented and passionate Elder Law/Estates Department can help guide families and loved ones to prepare for and take steps to protect an elder’s future.


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