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May 2011 Archives

Using video conferencing as an option in custody and visitation negotiation

A recent New York matrimonial case allowed a novel use of video conferencing through Skype for visitation. A mother and her two children were permitted to relocate to Florida, with the proviso that the father be able to visit with his kids three times a week on Skype, for an hour each session. Relocation to a different state is often a very heated issue in custody disputes. Virtual forms of visitation, combined with extended periods together during vacations, may be a way to compromise when negotiations hit an impasse. 

If You Can't Sublet, then Assign

Let's say you get a terrific job opportunity that requires you to move. You're in the midst of a lease, whether rent-stabilized or unregulated. The circumstances are such that you cannot sublet your apartment - there may be legal or practical reasons for this, perhaps both. Are you stuck? Not necessarily. You can ask your landlord to permit you to assign your rights in the lease to another tenant, of similar financial capacity and credit-worthiness. Under the law, your landlord cannot unreasonably withhold consent to accept the assignment. If he or she does, then you have the right to be released from your lease obligations with 30 days notice of your intent to vacate. 

Sign What You're Supposed to Sign, When You're Supposed to Sign It

Amazingly, there are people who relinquish valuable legal rights, along with financial and custodial advantages, by procrastination. All legal processes, including your divorce, are governed by specific time constraints. If you miss them, you relinquish your rights. The judge is unlikely to care about your excuses. When your lawyer prepares papers for you to sign, read them, ask whatever questions you need to for clarification, and then sign. 

Be Sure Who You're Dealing With

If you take a sublet, you want to be sure that you are dealing with the prime tenant, and not an imposter or individual who has already sublet the apartment from the person who's name is actually on the lease. That would make you a secondary subletting tenant at best, which is probably illegal without the landlord's permission. With a rent-stabilized lease, it also presents the landlord with an opportunity to evict the prime tenant and all subletting tenants, freeing the apartment from regulation. Rent-stabilized leases have strict rules governing subletting, which must be complied with if the regulated status of the tenancy is to stay intact. There's nothing worse than a nasty surprise when it comes to the roof over your head. 

Roommate Realities People Don't Consider, Then Live to Regret

By law, you are generally entitled to live in an apartment with your immediate family and one roommate. There are a few exceptions, but if you notify your landlord in writing and continue to pay your rent on time, the landlord is unlikely to have a reasonable basis to object. Seems simple enough, but unfortunately, roommate transactions are rarely as uncomplicated as they first may appear to be. Here are several considerations that are frequently overlooked and can fuel disputes:

Beware of Your Spouse's Potential Bankruptcy

In divorce proceedings, bankruptcy is a potential threat to your future financial stability if you depend on your spouse for support and have no means of generating income independently. A financial professional's economic analysis can spot the warning signals. But even if you don't suspect that your spouse is planning to file bankruptcy, you should discuss the possibility with your attorney so you can be as well prepared as possible. A potential bankruptcy can make a big difference in the negotiation and settlement strategy he or she pursues on your behalf. If bankruptcy looms on the horizon, it may be better to negotiate for a larger share of the marital assets in lieu of future income. If there isn't enough property of value, then at least you will want to characterize the payments in the most advantageous way. Child support cannot be discharged with a bankruptcy, so higher payments in this category have more legal protection. Spousal support can be structured so that it is not taxable income to you, and cannot be deducted by your spouse. These and other strategies can provide better financial protection, if bankruptcy is anticipated as a real possibility. 

Sue Your Landlord for Intentional Infliction of Emotional Distress

If you rent from a landlord who is for all practical purposes a slumlord, and is negligent in failing to make repairs in a willful or wanton way, your lawyer may be able to make a claim for emotional distress. Specifically, the distress must be caused by fear of dangerous conditions in your apartment, in order to be considered valid and permit recovery of punitive damages. Punitive damages are designed to punish for malicious behavior. This isn't an easy claim to prove, however if your landlord's conduct is truly egregious, and your apartment conditions are terrible, your lawyer may pursue it and a judge may make a favorable ruling. It helps if you have a history of emotional illness, and can demonstrate deterioration of your condition. For example, if you have more visits to a psychotherapist, or an increase or changes to medication, it helps to substantiate your position. However, it's not a good idea to try making this kind of claim on your own. Get proper representation. 

Nail Down Continuation of Support with Insurance

If you don't insure the stream of support payments your spouse agreed to in your settlement package, and he or she gets hit by a car tomorrow and dies, you're out of luck. And tragically, so are your children. Have your attorney insist on guaranteeing the stability of agreed upon payments with insurance policies. The policies should be in your possession, because if your spouse falls behind in the premiums and lets the policies lapse, it's as good as not having them in the first place. The insurance should also cover possible disability, since if your ex is injured or becomes ill and can't work, you're unlikely to be receiving any money towards support and other financial obligations. 

The Landlord May Consider Your Guest a Lease Violation

Most landlords will look for any excuse these days to seize a rent-stabilized apartment, so they can deregulate and raise rents to market level. An often-overlooked aspect of most rent-regulated leases concerns others who may be staying in your apartment. In general, unless you are in public housing - and even if your lease says otherwise - New York law allows tenants to live with their entire immediate family, plus at least one roommate who is not related. If you have a guest that stays with you for more than a few days, your landlord may try to use this as grounds to evict you. Let's say you already have roommates, and one of your friends currently has no permanent living accommodations, so you let the person stay with you until he or she finds a place. Don't be surprised if you get legal papers from your landlord claiming you are violating your lease because of the extra people living with you. There are defenses in Housing Court to these kinds of proceedings, but you risk blacklisting. Defending yourself in New York State Supreme Court can avoid blacklisting, but can also be more expensive, and you may or may not be able to recover attorneys fees. If you think you could have a problem with your landlord based on your past experience, or that of neighbors, it might be best to explain to prospective guests that you can't jeopardize your lease, and help them find another place to stay. 

Renew Promptly or You May End Up Regretting It

If your lease is up for renewal and you want to stay, sign and send it back right away. If you wait too long, your landlord can decide whether to consider the lease renewed, or sue to evict you. If your lease is deemed renewed and you want to move out shortly thereafter, you may then be liable for the full amount of the rent over its entire term, even though you've vacated.

If You Litigate, Be Ready to Answer Very Invasive Questions

Clients are often shocked and unsettled by questions raised in divorce proceedings, which probe into the most intimate details of their personal lives. That's the nature of litigation in domestic relations and family court cases, which is designed to bring all the relevant facts out in the open so the best judgment can be reached. This is why it's so important to avoid keeping secrets from your attorney. Your spouse's lawyer is likely to ask you about these private matters anyway, when you're under oath. Damaging information that arises under these circumstances can severely undermine your case. Had you provided the information to your lawyer in advance, it may have made a big difference in the recommended strategy and advice you received. Take advantage of the confidentiality afforded by attorney-client privilege, and discuss any potential landmines. That way you'll be prepared, be working with the most advantageous approach, and are unlikely to be derailed by opposing counsel. 

Clutter is Cause for Eviction

What's a library to you, is a nuisance to the landlord. What you consider a bit of disorganization, the landlord considers a fire hazard...all those newspapers and magazines you have piled up around the apartment. As a general rule, you may not occupy your apartment in a manner that exposes the building or other tenants to danger without risking loss of your tenancy. Hazardous clutter is grounds for eviction. Some people have Collyer's Syndrome, a condition that generates hoarding behaviors they cannot stop without professional assistance. Sooner or later, the landlord, building super, or a repair person will need access to your unit. If the place looks as if it's beyond what could simply be considered ordinary sloppiness, you may get a "notice to cure," followed by a set of eviction papers. If that happens, be prepared to put your stuff in storage quickly, if you want to keep your apartment.

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