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February 2011 Archives

Your disability benefits can be protected...probably.

If you are disabled and receiving disability insurance benefits under Social Security or through a private carrier, these may escape being classified as "martial property" and subject to partial distribution to your spouse. Unfortunately though, there's no guarantee of the outcome once litigation commences, especially in a matrimonial case where so many other factors come into play. If you have made a decision to pursue divorce, you will want to deposit disability benefits funds in a separate account immediately. Commingling any money with marital funds makes it harder for your attorney to argue that any particular income, cash, investment or other property is not a "marital asset." Similarly, if you get money from a personal injury case settlement, but don't segregate it specifically for future medical or health care expenses, it can be subject to attack. Your spouse may start a lawsuit for upward modification of maintenance or child support. The court will then almost certainly inquire as to how the money is currently being spent. If you've used the money to take a vacation, the judge may decide your spouse is entitled to a share of the rest of it. As a related point, you should also be aware that the court can find you capable of working, even if you're receiving disability benefits. A disability is not necessarily an airtight defense against having to pay added maintenance or child support. 

For a Co-op or Condo Rental Problem, Get the Board and Managing Agent Involved

If there's a condition in your rented co-op or condo apartment, or the building, that needs correcting and you haven't obtained satisfaction after several polite requests, you may then have to notify the owner of the unit (your landlord) in writing. The landlord is responsible for fixing defects or problems, whether it's a repair, difficulties with neighbors, or other adverse circumstances. Managing Agents, the Board of Directors, or the Condominium Board also deal with these issues, depending on the building's legal arrangements and the entity you rent from. There may even be two Managing Agents: one for the co-op or condo and another for the rental units. In addition to your landlord, notify the individuals serving in these capacities with a letter that describes the complaint concretely. If possible, state the cause of the condition. Request immediate action. By following these procedures, if you have to go to Housing Court to enforce your rights, you will be in a stronger position to get the repairs or relief you need. 

Coordinate Your Lawyers

Sometimes a Landlord Tenant dispute involves injury to the occupants of an apartment. In addition to a Housing Court proceeding, a personal injury lawsuit may be indicated.

If You Make A Lot More Money than Your Spouse, Be Prepared To Pay His or Her Legal Fees

It pays to approach your divorce with open eyes, so you can make a realistic assessment of the strengths and weaknesses of your case. Your income is an area that needs careful consideration. If there's a wide disparity in income between you and your spouse, the judge has broad latitude in ordering the more affluent party to pay the other's legal expenses. This is generally true, unless you're already paying your wife or husband enough maintenance to reasonably cover these expenditures. In fact, the court can award prepayment of fees to enable your spouse to take legal action against you. In this instance, a defense against an award of counsel fees is to prove that additional litigation would be wasteful, or result in unnecessary delays. Also, all legal costs your ex claims must be substantiated by a signed retainer agreement. 

Check Out Your Landlord Online

If you have to fight in court, it's best to gather as much information about your opponent as possible. Google your landlord's name and see what comes up. Prior tenants may have posted complaints, or the landlord may be contributing to various sites, all of which could be relevant to your situation. For example, check if the landlord has a Twitter account, and read through the posts for any comments related to tenant matters. It's sometimes surprising what people will say online. Bring that data to your first consultation with a Tenants' lawyer. It may make a difference in how things turn out with your case. 

Self-employment = Special Scrutiny

The court has latitude in determining what the actual income of each party is, which is then used to calculate maintenance and support. If your spouse is self-employed, your lawyer may recommend obtaining an expert witness to verify actual income. In this scenario, it is almost always to your advantage to sustain the expense. Otherwise, it's virtually impossible to determine real earnings of your husband or wife. Self-employed individuals frequently use business funds to pay personal expenses. If that is so with your soon-to-be ex, then for purposes of determining maintenance and child support, his or her actual earnings may be higher than those reported on tax returns. Proving this can result in your being entitled to more maintenance or child support. The court will not accept such a claim without solid substantiation, which a financial professional's analysis would supply. Conversely, if you are self-employed, be prepared for an investigation of your finances. It is sometimes a better strategy to be more generous in negotiations, than to have your entire financial life dragged out in public before a judge. Only an experienced divorce lawyer can advise you properly, and negotiate on your behalf in these circumstances. 

If the Government Is Involved, It Can Be Harder to Evict You

Anytime the government is involved in the operation, ownership or financing of a building, or has provided rent subsidies, a landlord can have a more difficult time evicting a tenant. The landlord may have to show "good cause" for the eviction, or adhere to additional procedural requirements. If you know that a city, state or federal agency is in some way connected with your building, you should bring it to the attention of your Tenants' attorney. A good lawyer will research that point anyway, but certainly share what you know at your first consultation. It may be used in erecting a defense against being evicted. It can also buy you some extra time to raise money for rent, or to correct any problems the landlord is alleging that you're responsible for. 

In a divorce, "unique circumstances" can have extraordinary power...

In many instances, courts have wide discretion in how New York Divorce laws are applied. This is especially true in assigning the amount of temporary support one spouse is to pay the other while the divorce is pending, and after it's finalized. You should make a point of telling your attorney about any relevant facts that would potentially affect the amount you should receive, or are able to pay. For example, if there is a wide divergence in income levels between you and your spouse, that's a significant factor. The age, health status, employment prospects and education of each party will also be taken into consideration by the courts, in addition to standard of living and children's needs. If you are to receive maintenance and cannot work due to one or more of these elements, you should give your lawyer a full briefing on your circumstances. Pull together a file of documents that prove your claim. On the other hand, if you're the one who must pay, and you believe that your partner is perfectly capable of self-support for reasons that may not be immediately apparent, say something. Let's say your spouse was a top sales professional at one time, or successfully self-employed in a service business that could be conducted from home. Even if he or she hasn't been employed for a number of years, it may be feasible to return to that work. This could potentially reduce the amount or duration of the maintenance you will have to pay. 

If You're Not There, Beware

Tenants sometimes have personal or work-related circumstances which cause them to be absent from their rent-regulated apartments for extended periods of time. For example, an adult child may be staying with an ill or elderly parent for months, to assist with recuperative efforts or to provide needed care. A self-employed individual may have client projects that involve extensive traveling, or temporary residence elsewhere. A landlord might use a similar situation as an opportunity to claim abandonment of a rent-stabilized or rent-controlled unit, in an attempt to evict you and gain control of the apartment. While defenses can be raised and Housing Court takes many factors into consideration to determine if actual abandonment is a valid claim, it still exposes you to potential loss of your home and blacklisting. Once you're involved in a lawsuit, there's never an absolute guarantee of any particular result. If you know you're going to be away from your apartment for a while, it's a good idea to speak to a Tenants' lawyer in advance to see what your potential liability is, and to do some strategic legal preplanning. 

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