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November 2011 Archives

Annulment Instead of Divorce: It All Depends on the Circumstances

In some instances, it may be possible to have a marriage annulled, instead of pursuing divorce proceedings. Under New York law, a marriage can be annulled under certain conditions. For example, one party lacks capacity to enter into a marriage contract due to mental infirmity, or marries under the influence alcohol, drugs, coercion or fraud. Sexual incapacity, being a minor, or other illegalities are also reasons for annulment. If any of these claims can be proved, the marriage can be dissolved or ruled never to have truly existed. The standards of proof for an annulment are higher than those required for a divorce. However, even with an annulment, maintenance and child support can still be due. The time frames for annulling a marriage can vary according to the facts of your case, and a matrimonial attorney can advise you if this is a viable option. 

Your First Defense When The Landlord Says Your Apartment Isn't Your Primary Residence

When the landlord asserts that your rent-stabilized lease will not be renewed because the apartment isn't your primary residence, you receive a "Golub Notice." This is a legal document that says because the unit isn't where you live primarily, your landlord isn't going to renew your lease and will sue to evict you when it expires. Fortunately, the law surrounding Golub Notices isn't quite so cut and dried. Often, these papers fail to back up the claims of non-primary residency with any verifiable facts. In these instances, the Courts have held that the notices are invalid. The case against you can also be dismissed if the Golub Notice's timing wasn't right, or because it doesn't have the specificity it requires. When that happens, the landlord usually has to give you the option of renewing your lease for one or two years, then wait until the next renewal period to serve another Golub Notice and sue you again. At that point, he or she may no longer be interested in pursuing the claim. Or circumstances may change in other ways that obstruct the landlord's ability to bring another non-primary residence suit.

Is the child support money you pay actually being spent on your kids?

The legal system has powerful protections in place to guard against parents who do not pay child support. Unfortunately, these same safeguards do not exist to insure that the money being paid to a custodial parent is actually spent or retained for the benefit of the children. Once the check is cashed, how the funds are used is at the receiving parent's discretion. On the other hand, if there's evidence of neglect, there are remedies. Ask yourself these questions: How well is your ex-spouse caring for your children? Are they sick more often than normal? Are your children well-clothed? Do they seem well nourished, or are they thin and listless? In their general demeanor, do they seem reasonably well-adjusted and content, or depressed? If there are warning signs, speak to a matrimonial and family law attorney about your options. You may be able to get a change in custody arrangements and child support payments in these circumstances. 

Just Because the Landlord Doesn't Keep His Word, Doesn't Mean You Can Withhold the Rent

Let's say you're in a court battle with the landlord over necessary repairs, and you manage to hammer out a settlement. The landlord agrees to correct defective conditions by a certain date, and you agree to pay rent due. Next thing you know, the repairs are never made, or aren't completed, or are made inadequately. Can you withhold the payment? Probably not. Settlement agreements generally bind you to paying rent even if repairs aren't made, so you can be evicted if you don't pay. The proper response is to go back to court and fill out documents setting forth the facts of the situation to the judge. You can obtain the appropriate forms from the Court Clerk. If your explanation justifies it, the judge will order the landlord to return to court and account for why the conditions were not corrected. You may still have to pay the full or partial rent, but the judge may require it paid into the court instead of the landlord, at least until the repairs are finished. You may also be entitled to a reduction in rent to compensate for loss of services during the delay. Generally, it's best to have a Tenants' lawyer draft or review your papers. If you can't afford it, Housing Court has an attorney on staff who can provide limited assistance. 

Did you help pay for your spouse's education? The Degree May Be a Marital Asset

There's a relatively common scenario among professional couples who later divorce. For example, let's say that during the marriage, the husband went to medical or law school, and obtained an expensive professional degree. While he was completing his studies, his wife worked and supported him, contributing to educational expenses, and even now participates in paying off his student loans. They decide to call it quits and get a divorce. His degree has an economic value and is considered by law to be a martial asset. Its value must be included in the couple's assets, to be equitably shared between them when they go their separate ways. If your spouse got a degree while you were married, your attorney can retain a financial expert to assess the value of your contribution and to assign a specific dollar value to it. In this way, your efforts will be compensated. The credit you receive may be more significant than you think. 

Disputing the Rent Due Because of Personal Property Damage

If substandard conditions in your apartment result in damage to your personal property, you can ask that the landlord compensate you for the losses. Your claim is that the landlord owes you money, or you are entitled to a reduction in rent, due to lack of repairs that subsequently lead to the damage. For example, let's say there's a leak in the ceiling, and dripping water has ruined your kitchen table or a rug. Or perhaps a flood has made your sofa unusable. Frequently, law suits or insurance claims are necessary to obtain compensation in these instances. Court action can be expensive and may not be worthwhile unless the cost to fix or replace your possessions is significant. However, if you're fighting with the landlord over rent due or needed repairs, these issues can be raised as a defense and counterclaim to the landlord's demands for rent. Make sure that the defective condition and the affected property are listed in your papers, along with the cost of refurbishing or replacing the items.

A 15% Change in Income Can Modify Child Support Payments

Under recent amendments to New York's Family Court Act, child support orders can be modified after three years pass or when there has been "a substantial change in circumstances." The definition of a substantial change includes shifts in income of 15% or more. However, reduced income isn't grounds for modification unless it was involuntary, and the payor attempts to secure new employment or otherwise replace the lost income. Custodial parents can utilize an ex-spouse's 15% increase in income to seek an upward modification order. 

When to Pay the Court if Your Landlord Won't Accept Rent

Landlords sometimes refuse to accept payment of rent as a way of improving their chances of evicting you. In most Housing Court lawsuits for back rent due, unless there are adequate defenses, judges require either all or most of the arrears to be paid. If the landlord has obtained a judgment against you for past due rent, you will have to pay it within five days to avoid eviction. Get a receipt for your timely payment of the full judgment amount, or have proof that you sent it to the landlord, to be received before the five-day deadline expires. If the landlord does not accept payment or cash your check, you should immediately bring it to the attention of the court. In that instance, it would also be a good idea to get advice about your particular situation from a Tenants' lawyer. In some cases, if you can show that the landlord isn't accepting payment, it may be best to pay the amount due into court with a certified check, bank check or money order made out to the New York City Department of Finance. In this way you can stop the landlord from obtaining, or having a City Marshal execute, a warrant of eviction. You may still have to take additional steps in court to halt the eviction, but at least you will have the critical evidence you need for a judge to authorize it. 

Landlords Can Be Liable for Acts of Third Parties

You can be entitled to a rent abatement, which is a reduction in rent to compensate for bad conditions or lack of services, even if your landlord is not directly at fault. For example, if a utility company is doing work in your neighborhood, and causes the water, electrical or gas service in your building to be disrupted, that represents a breach of habitability. Even though the landlord didn't cause it, he or she is still responsible for making sure that the situation is corrected, and the remedy isn't delayed. In an instance like this or a similar circumstance, the remedy could be reduced rent. As a practical matter, a judge is not likely to impose an abatement if the landlord has no power to correct the problem, and didn't cause the defective condition or interruption in services. However, if you can prove that the landlord could have solved it but chose not to, you may be entitled to a rent reduction commensurate with your loss. 

Use the Nonpayment Answer Program

Here's a free online service to assist New York City tenants with non-payment cases. The program asks you a series of questions about your case, then prints out a chart and set of fact sheets to help you make an oral answer in court to papers you've received. Go to this page at the Law Help Interactive site.

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