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October 2011 Archives

Have Your Lawyer Draft a QDRO to Protect Your Share of Retirement Benefits

If your spouse contributed to a 401k plan or an employer retirement account during your marriage, you may be entitled to a share of its value. A Qualified Domestic Relations Order, or QDRO, is a legal document that guards your right to receive future benefits. Your divorce attorney can draft it for you, and then assist in getting it approved by the court and plan administrator. Once it's in place, you have protection against the benefits being paid directly to your ex-spouse, and avoid risks of not receiving them. 

Request a Housing Inspection

If you have a dispute with your landlord about conditions in your apartment or elsewhere in the building that need repair, you should collect evidence. Request a Housing Part Inspection the first time you're in court, whether you're suing or defending. When you sue for repairs under an "HP proceeding," the Court Clerk schedules the inspection, and a court date is assigned after the report is issued. The inspectors are from the Department of Housing, Preservation and Development. You can call 311 to complain and get an inspection for certain conditions that pose immediate danger to safety. Get a complaint number from the operator so you can follow up. Make sure you list every problem that needs to be addressed. Otherwise, it will probably not be included in the inspector's report. Inspectors can visit during daytime and evening hours, and on weekends. Be sure you or someone with authority meets the inspector. Once the inspection is complete, your landlord and the court will get a notice of violations. This is powerful proof of your claims.

How to Deal With the Uncooperative Spouse Who Refuses To Sign Papers

In highly acrimonious divorces, in which parties have a great deal of bitterness and animosity towards each other, one and sometimes both partners can become completely uncooperative. A problematic manifestation of this behavior is a refusal to sign papers that permit things to move forward to completion. If you are having this difficulty with your spouse, the law has provisions for dealing with it. Principally, this involves making the court aware of you husband's or wife's uncooperative stance, and then making arrangements under court order to have papers personally served on the individual by a licensed process server. Once this is accomplished, the court can proceed as if the papers had been signed. You can assist in getting the papers properly served by letting your attorney know of your spouses routines, whereabouts and time schedules, so that the process server can find and serve him or her more easily. 

Three reasons a judge may halt your eviction if you missed a court date

When you're embroiled in Landlord Tenant litigation, it's extremely dangerous to miss a court appearance: doing so could easily cost you your apartment. That being said, there are instances in which tenants miss a court date for valid reasons a judge will accept as grounds to change a default ruling. One is that you never received the papers, because you were not properly served. Another acceptable cause for missing the date or "defaulting" may be illness. If you're facing eviction because you missed a court date, in addition to an explanation, you will need to have a solid defense in order to halt the eviction process. Examples of defenses are needing repairs, having paid at least part of the rent, that the rent in the landlord's papers is improper under your lease or rent regulations, etc. Your explanation and defenses need to be filed with the court in an affidavit, which sets forth the reasons you are asking the Court to stop the landlord from evicting you, and requests a hearing. The judge may then issue and an Order to Show Cause granting it. 

Is your spouse hiding money?

In an article about "financial infidelity," Reuters news reports that in a recent Harris poll, 15% of the 2019 adults surveyed admitted to hiding a bank account. A staggering 58% hide cash from their significant others. A third of the group mentioned they'd been deceived, and 16% said it resulted in a divorce. So if you're getting divorced, it's probably a reasonable bet that there's some money your spouse has that you don't know about...and it may be a more significant amount than you think. This is a good reason to speak with your lawyer about bringing in a forensic accountant. Not only will you then have the best chance of recovering your share of the concealed funds, but exposure of your spouse's deceit will strengthen your own case.

Your Strongest Evidence in a Nonprimary Residence Case

Landlords sometimes sue for possession of your apartment by claiming it's not your primary residence, and therefore you don't deserve rent-regulation protections. In that instance, you'll want to use the most powerful evidence you can to defend your rights to stay there. This includes as many tax returns with that address on it as you have, along with your driver's license or New York State I.D. card. Other strong articles of evidence are your motor vehicle registration and voter's registrations, if you have them, mail, phone bills showing usage, utility, cable and other invoices, and correspondence from government sources. The more, the better. 

False Allegations Can Sink You

Making false accusations in an attempt to bolster your legal position, or to destroy your partner's rights, can easily backfire on you. For example, in particularly vicious divorce situations, parents sometimes make allegations of child abuse that are completely unsubstantiated and untrue. People who do this do not seem to realize that the courts are not ignorant...that the law is not dumb. In circumstances of this sort, a judge may order a court-appointed evaluation of both parents. Frequently, an independent evaluator will discover that the accusing parent's continuous and inappropriate questioning of a child about the spouse's allegedly abusive behavior is damaging. In this instance, it is not unusual for the court to award, or to reverse, custody to the other parent. In addition, the parent who made the false allegations sometimes ends up being subject to supervised visitation only. 

Ask For a Jury Trial

One strategy you can employ to protect your rights is to ask for a jury trial. Some judges tend to rule in favor of landlords. If you end up in front of this kind of judge, you'll have a harder time convincing him or her of your position. But if your case is explained to six members of a jury, you may have a better chance of prevailing. On the other hand, in boroughs where jurors are more likely to be landlords, or to own co-ops or condos, some juries may not be sympathetic to tenants. Most leases say you waive your right to a jury trial, but if there is a defect in the jury-waiver language, you may be able to get one anyway. You need to request it and pay the fee the first time you go to the courthouse on the proceeding, even if you only talk to a clerk about your case and it isn't before a judge yet. However, demanding a jury can mean that you waive certain arguments only a judge can rule on. So before you ask for a jury, speak to a knowledgeable Tenants' lawyer to see if that's an effective strategy. 

Sublet, Succession, Roommate: Multiple Defenses When You're Not There

Subletting is common in New York City. People have a variety of valid reasons for temporarily leaving their apartments and subleasing to others while they're gone. However, many landlords never want to miss a chance to turn over a tenant in order to get a rent increase. They frequently see these circumstances as an opportunity to evict by claiming the sublet is without consent.

Don't Be Uncooperative

A parent who is unwilling to foster a positive relationship between his or her spouse and their children ends up worse off legally. This has been demonstrated in case after case. Ultimately, the court is concerned about what is in the best interests of each child, and in securing the safest and most nurturing environment possible. When one parent attempts to destroy a child's relationship with the other parent, judges can respond swiftly and severely. In fact, simple absence of cooperation is frowned on, even if there's no overt attempt to alienate a son or daughter from a mother or father. Don't make disparaging remarks to your children about your husband or wife. If your spouse is entitled to visitation, encourage your kids to abide by its terms. In any custody dispute, this approach will equip your lawyer to make it clear to the court that you have the children's well-being at heart. In this way, you keep yourself in good standing from the law's perspective, which helps to guard your rights and protect your kids. 

Be Polite and Respectful in Whatever You Write, Say or Send

In all written communications with your landlord, keep the tone of your language courteous and respectful - avoid being sarcastic. Set forth your complaints, position and requests in a simple, straightforward and polite manner. This is good legal strategy, because the judge may eventually see any letters or other correspondence you send. If you come across as rude, condescending, or even worse, a little unbalanced or crazy, you undermine your position. Write everything with the judge in mind, and always remember that judges and other Court personnel are people, who respond both on legal and human levels. 

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