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Sunday, June 20, 2010

I Want Out: A Basic Guide to Getting a Divorce in New York

So, it took you a month to tell each other you were in love, a couple of years until he proposed, and a year to plan the wedding. But after all the cake was eaten and the mortgage payments were late, the bickering lasted too long and now you want OUT! It is an oft-quoted statistic that we've all heard, but nonetheless, about half to 60% of all marriages end in divorce (the rate is higher for second, third, fourth marriages and so on). Due to this fact, your questions are many and can be very urgent in light of the want to end the marriage quickly and painlessly, especially if children are involved.

All other states in the fabulous union of America have what is known as a "no-fault" divorce (for example "irreconcilable differences"). But the good ol' state of New York makes divorce a bit more difficult for its citizens. In New York there is no such thing as irreconcilable differences...there are only four grounds for divorce in New York and if your situation does not fit one of these, you cannot pass go and collect $250. The four grounds for divorce are: 1) Adultery; 2) Abandonment (one spouse abandons the home for at least one year); 3) Constructive Abandonment (no marital "relations" for at least one year...i.e., no sex); or 4) Cruel and Inhuman Treatment (which can mean anything from physical abuse to consistent emotional, mental abuse- and the allegations here must be very specific).

After establishing that you have grounds for a divorce, the next question is usually "how much will it cost?" The answer will obviously vary based on who you hire to do the job. My standard rates depend on whether or not a divorce is contested or uncontested. Many people come to me saying, "oh, it's definitely uncontested...we both want it over." However, whether or not both parties want out is not the only issue which will determine whether your divorce will really be considered uncontested. An uncontested divorce not only means you both agree the marriage is means you agree as to whose "fault" it is, because NY state makes one person take the fault. However, I often advise my clients to take "fault" for the marriage's failure, unless the ground is adultery, which is still a crime in New York (and admitting adultery can affect a maintenance/alimony claim). Fault does not have a thing to do with who gets what, or custody and support issues.

In addition, to be uncontested, the parties in the divorce must also agree on who gets what...who gets the personal (actual belongings other than land/house) property and real (land/house) property; who gets the debt (any debt incurred during the marriage, regardless of whose name it's under, is MARITAL debt- yes, you heard me right); who will carry medical insurance for the children (spouses may not qualify for coverage under their former spouse's plan once their divorce is final); will one spouse get maintenance (formerly called alimony); will the life insurance policies be maintained, and who will be the benificiary; will they agree to divide the marital portion of their IRA, 401K or pension plan; etc, etc, etc... So, just because you both agree it's over, doesn't necessarily mean you're dealing with an uncontested divorce.

All of that being said, if a divorce is truly uncontested, I will usually charge a flat rate commensurate with the value of the assets and ability of a particular client to pay a retainer fee. If the matter is contested, the standard rate is $3,000 - $5,000 in initial retainer (plus filing fees which total about $350.00), billable at $300.00 per hour. What that means is that the $3,000-$5,000 is deposited with me, and as I do work, each hour of work is deducted from the deposit at the rate of $300.00 per hour. If the initial deposit gets used up, I ask that it be replenished, usually in increments of at least $1,000.00 per month. But all lawyers' prices will vary in this regard.

The next question most commonly asked is: How long will it take? Again, it depends. If it's truly uncontested, it will take about a week to get an index number (the number assigned to your divorce when the initial papers, or "summons and complaint" are filed), and then another week to draft the rest of the documents and meet with the parties (usually one party is unrepresented when I do truly uncontested divorces) to sign them. Upon sending the final documents and filing fees to the clerk, the Court has 90 days in which to sign off on the final documents and my clients (in uncontested divorces) never see the inside of a courtroom. The end. But in a contested divorce, the time it takes to finish a divorce really depends on the parties (and the attorneys) involved. As soon as everyone agrees, final documents can be drawn up, signed and submitted to the Court for the Judge's signature. But this process, if the parties have significant assets (and even bigger egos), can take years.

The best advice I can give someone trying to get a divorce is to deal with the important things first. If there are kids involved and custody and support are your main concerns, go to family court and file a custody petition and a support petition before you file for divorce. This way, when you get around to filing for divorce, you will already have custody and support orders in place and will be well able to deal with the other issues more easily and speedily. If anyone reading this post has more questions about divorce, email me (look in my profile information) and I'd be happy to shed some light on the subject for you. It's a shame that we don't get all the cards full of cash at the end of a marriage...that's when we truly need it!

Wednesday, June 9, 2010

Think Before You Drink: The New Ignition Interlock Law

At one time or another, many people who do not consider themselves to be a person with a drinking problem have had one too many while out at a bar or other social event. And by looking at the latest statistics, many of those people choose to get behind the wheel instead of designating a sober driver or calling a taxi. DWI (driving with a blood alcohol content of .08 of 1% or over) has remained one of our State's and our country's most significant problems. But considering New York State's increasingly tough sanctions for drinking and driving, hopefully many would-be drinkers and drivers will think twice and avoid using their keys after having a cocktail.

According to Michael Hill, M.S. Ed., the Director and President of New York State's Drinking Driver Program Association, (locally administered at Dutchess Community College) in 2006 alone, there were 7,959 total motor vehicle crashes related to drinking and driving. Out of those drinking related accidents, 7,293 were injured and 397 people were killed. These are extremely frightening statistics and have been more than enough for the State Legislature to beef up DWI laws in New York.

In 2006, a host of changes to the New york State Vehicle and Traffic Law were made. Most notably: Section 1192(2)(a) of the Vehicle and Traffic Law provided for a new "aggravated" DWI, the violation of which occurs when an alcohol breath test registers a BAC (Blood Alcohol Content) of .18 and over. The penalties for violating this section are a fine from the minimum of $1,000 to a maximum of $2,500, plus state mandated surcharges, which have also recently been dramatically increased (to about $400). One year mandatory revocation of the defendant's driver's license, drinker driver program participation, if eligible, attendance of a one time victim impact panel and mandatory clinical alcoholism assessment, along with the possibility of probation. The 2006 changes also require mandatory alcoholism assessment (by an OASIS certified evaluator) of all drivers with a BAC of .15 and over. In addition, DWAI (Drinking While Ability Imapired: .05-.07 BAC) defendants must now attend the Drinker Driver Program as well. A full discussion of the impact of these changes and some of the finer points would take an entire thesis to cover, therefore, my discussion here will remain confined to the larger picture.

The Drinker Driver Program (hereinafter DDP or the Program) is a seven week course, attended once a week and is required before DMV will issue a conditional license, if the defendant in question is eligible for a conditional license. The Program also provides screening for any alcohol addiction problem that is now mandatory for anyone arrested for any offense under Section 1192 of the Vehicle and Traffic Law. Attendees must comply with any recommendations for further treatment that come from the administrators of the Program. It seems that the DDP has actually been very effective, in that attendees are statistically far less likely to drink and drive after successful completion of the Program.

With all the changes that came in 2006, there are still far too many who choose to drink and operate a vehicle. I defend many of those arrested for DWI and it is now, more than ever, an uphill battle to resolve such cases. Newest to the DWI laws is the Ignition Interlock Law (also known as Leandra's Law, named for Leandra Rosado an 11 year old girl killed in an October, 2009 drunk driving crash), which will be effective for all cases sentenced after August 15, 2010 (where the date of the offense was on or after December 15, 2009). The law requires the installation of an approved ignition interlock device (which can be extremely expensive) for motorists convicted of the following offenses: 1192(2):DWI, per se, .08 BAC; 1192(2)(a): Aggravated DWI; or 1192(3): Driving While in an Intoxicated Condition.

If all of the foregoing has not yet convinced you to think before you drink...consider the costs involved if you are arrested and convicted: The minimum attorney's fee of $1,500 (and these can go up quite a bit depending on prior offenses, etc.); Mandatory DDP fee of $225; DWAI fines of $300-$500, DWI fines of $500-$1,000, Aggravated DWI fines of $1,000-$2,500; mandatory surcharge of $400, possible mandatory alcohol evaluation by an OASIS certified evaluator ranging from $250-$500 in my experience; increased insurance rates of up to 400%; DMV administrative sanction fees for DWAI $1,135, for DWI $1,275; and now the fee to install an ignition interlock device for anywhere from $600-$1,000!!! That is a whole lot of money! If the danger you pose to others on the road is not enough to motivate you to think twice before drinking and driving- perhaps the sheer financial expense of it will. Keep safe, New York!

*Information used in this post was obtained from Michael Hill's Drinker Driver Program powerpoint presentation.

**For more information on Leandra Rosado and the accident that cut her young life short, see: