Separate Assets May Be Divided As Communal Property

Long Island divorce lawyersGenerally, in a divorce, there are communal assets and separate assets. In New York State, all assets acquired during the course of a marriage are considered communal property. This is commonly known as shared property or marital property. Separate assets refer to property that is independently owned by one spouse. Today, distinguishing between separate property and the communal property has become more complex, due to more individuals having a significant number and range of assets.

What Constitutes Separate Assets?

Separate assets are properties, funds, or investments that are solely owned by one person prior to marriage. In addition, separate assets are those that are inherited or acquired with personal funds or as a gift during the duration of the marriage. Furthermore, assets used by both parties or purchased through a shared bank account are typically considered communal property. It is important to remember that separate assets should never be co-mingled. Also, debt acquired prior to the marriage will be considered separate. This includes student loans or credit card debt.

Assessing the Assets

Usually, assets are divided according to each spouse’s circumstances. This means that the duration of the marriage, as well as economic status, will be taken into account. It is important to remember that there are no set guidelines governing the division of property. Every divorce is distinct in nature, which is why a court will evaluate the situation and divide the property accordingly. Due to this, certain “separate” assets may be deemed communal property by a court of law. Part of the process is evaluating the value of the separate property prior to dividing the communal property. For instance, a judge may award a primary earner less communal property when dividing the assets amongst the parties. However, in many circumstances, a court will usually look at separate assets as independent of the communal property when granting an award.

It is important to have an assessment of any assets or properties in order to determine the total value of the separate and communal property. An experienced lawyer, accountant, and financial advisor can assist with the process. These professionals can assist in determining which assets will constitute communal property that may be divided amongst the parties.

It can be overwhelming to navigate the divorce process. Seeking the guidance of an experienced New York divorce attorney is crucial to resolving issues. The divorce lawyers of McGuire & Peláez, PC are skilled in handling divorce and family court matters and will fight zealously for your rights. For more information or to schedule a consultation, contact our Long Island divorce law office at (631) 348-1702.

Collaboration for Co-Parents Is Key During the Summer Months

child custody lawyer Long IslandSummer break can be complex for divorced or separated parents. While children are off from school, making child custody arrangements for their daily activities or summer vacations may become problematic. It is important to remember that consistent and responsive communication will benefit all parties involved, resulting in a less complicated summer.

Here are a few tips for co-parenting in the most effective way:

Proactive Communication

School and work schedules change during the summer months. It is important to make arrangements in advance in order to acclimate any schedule changes. Keep in mind that it is important to work together on structuring a plan that will be in the best interest of the children as well as accommodate both parents. In addition, if the children are going to be partaking in summer activities, such as camp or a sport, it is imperative that finances be discussed ahead of time.

Talk About Vacation Plans Prior To Booking

Any intentions of taking the children on a vacation should be discussed in advance of booking. Additionally, providing tentative dates ahead of time is beneficial to the co-parent. Furthermore, vacations should be discussed amongst the adults prior to informing the children. Provide the co-parent with details regarding the vacation and any other information pertaining to the vacation. Also, if you are traveling without the children, make sure that the children have a safe place to stay. The co-parent should also be informed that someone else is caring for the children.

Talk To Your Children

Discuss the options for the summer with your children. Talk about any activities or interests the children may want to engage in throughout the duration of the summer. It is important that children have a voice in how they wish to spend their summer.

Maintain Flexibility

Be open to alternative options for the summer. If a parent does not feel comfortable with a certain activity or vacation, try to compromise. In addition, be flexible with dates and schedules. Try to avoid conflicts as much as possible.

Create A Schedule

After all, parties have discussed the options for summer arrangements, vacations, and activities, create a schedule. Finalizing plans helps ensure stability for the children involved.

It can be overwhelming to navigate the custody process especially when it comes to protecting the interests of your children. Seeking the guidance of an experienced Long Island family law attorney may be crucial to peacefully resolving potentially contentious issues. The Long Island family lawyers of McGuire & Peláez, PC are sensitive to your needs, skilled in handling divorce and family court matters, and will fight zealously for your rights. For more information or to schedule a consultation, contact our Long Island divorce law office at (631) 348-1702.

Make Sure To Disclose All Financial Information During Divorce Negotiations

Suffolk County divorce lawyerAn individual going through a divorce must disclose a material change in facts during settlement negotiations, otherwise, it may invalidate a settlement provision. On May 11, 2017 the Appellate Division, Third Department invalidated a paragraph of a divorce settlement separation agreement. The court remanded the matter to address the proper equitable distribution of funds.

In June 2014, a wife filed for divorce. On September 15, 2015, the parties finalized a separation agreement that addressed equitable distribution as well as child support, custody, and spousal maintenance. A provision of the agreement addressed the wife’s ownership interest in a privately held company. The wife became employed by the company in 2012. In 2013, the wife was given unvested equity incentive units by her employer and in September 2015, half of her units became vested.

The part of the agreement that addressed this interest specified that she agreed to pay her husband 10% of the full value of the compensation received from these. Furthermore, the agreement stated that the wife would give the husband reasonable and necessary documents to value the ownership interest. After the signing of the agreement, the wife notified her husband that the company was sold and that she received 230,000 for her interest in the company and provided him with the 10%.

In accordance with Domestic Relations Law § 236[B][4][a], equitable distribution requires full financial disclosure by both parties. An individual has a statutory and contractual obligation to inform the other party of a sale prior to finalizing an agreement. Another portion of the agreement stated that the parties provided full disclosure of all financial assets, which is a continuing obligation. While the parties agreed to the language of the provision in the agreement in advance of September 15, 2015, the sale on September 1, 2015, rendered that provision moot because the value had been defined.

It can be overwhelming to navigate the divorce process. Seeking the guidance of an experienced New York divorce attorney is crucial to peacefully resolving potentially contentious issues. The divorce lawyers of Mcguire & Peláez, PC are sensitive to your needs, skilled in handling divorce and family court matters, and will fight zealously for your rights. For more information or to schedule a consultation, contact our Long Island divorce law office at (631) 348-1702.

Losing Custody Due To Mental Illness

losing child custody due to mental illnessIn many instances, parents suffering from mental health issues may not seek help due to the fear of losing custody of their children. In some states, a parent may lose custody of their child, if they are suffering from mental illness.

According to studies, 70 to 80 percent of parents suffering with mental illness lose custody of their children. If the parent becomes hospitalized in a psychiatric center then the children are often raised by grandparents or other relatives. Those without extended family are placed in foster care.

In New York State, 16 percent of families who are a part of the foster care system, and twenty one percent of families who are receiving family preservation services, include a parent suffering from a mental health issue. According to studies, the biggest reason a parent loses custody of their child when he or she is suffering from a mental illness is due to the severity of the illness and lack of treatment. In New York State, the court takes into account the presence of other competent adults who are residing in the home. When there is no other competent adult residing in the home, oftentimes the child will be removed from the mentally ill parent.

Losing custody of a child is devastating, stressful and emotionally draining for many parents. This process may even exacerbate an individual’s illness, making it more difficult for them to regain custody of their child in the future.

If you are suffering from a mental illness and are seeking health services and are afraid you may lose your child, an experienced family law attorney can assist you and fight for your rights. It is important that you are aware of your rights when it comes to you and your child. If you are seeking custody or visitation of your child, contact the Suffolk County family law attorneys of McGuire & Peláez, PC. Ms. Peláez has practiced daily in the family court for more than 10 years as private and Court appointed counsel, and she will zealously fight for your rights as a parent. Contact our Long Island family law firm at (631) 348-1702.

Commercial Landlords and the Non-Residential Tenant Harassment Law

New York commercial landlord-tenant lawyerIn September 2016, New York City enacted the “Non-Residential Tenant Harassment” law that increases protections for New York City commercial tenants. Under the law, a commercial landlord, or someone acting on his or her behalf, cannot harass a tenant into making them vacate the commercial property or surrender or waive their rights under an effective lease agreement. This includes the use of force, implied force, interruption of access to the property or services within the property, court proceedings, and the changing of locks in the property.

If a commercial tenant is harassed by their landlord, he or she may file a lawsuit for damages, punitive damages, and the cost of attorneys’ fees. If the court rules in favor of the commercial tenant, it may impose a mandatory civil penalty of between $1,000 and $10,000. The court may also issue a restraining order against the landlord to prevent further harassment.

As a commercial landlord it is important to protect yourself from liability, by taking the following measures:

  1. Expressly include a legal waiver within a lease agreement. A waiver is enforceable as long as it is not in violation of public policy. Additionally, it may be in the best interest to incorporate a confirmation of the landlord’s duties or obligations to the tenant. This may help alleviate any concerns a tenant may have.

  2. Under the law, implementing “unnecessary” repairs, repeated, or extended interruptions of services within the property is prohibited. For this reason, it is important to maintain adequate records for repair services, including the reason for a repair within the property, in order to avoid any claims that the repairs were not necessary. Additionally, it is imperative to document, and if necessary photograph, any repair services on the property, as well as any additional steps that were taken to address the issues. The statute also indicates that reports may be provided to tenants regarding the efforts to fix any interruption to the tenants.

  3. Obtain adequate legal advice prior to contacting a tenant regarding a tenant surrendering his or her lease prior to the date of termination. Additionally, discuss any tenant defaults with an experienced landlord-tenant attorney.

  4. All tenants in a building shall be treated equally in order to avoid any conflicts. For instance, do not repair a leaky window for one tenant while ignoring a leaky window of another tenant, especially if that tenant is paying less for his or her dwelling. This may be construed as harassment.

  5. Inform all employees of the new law as well and provide guidance on appropriate conduct.

According to the New York City Bar Association, the law does not affect a commercial landlord’s ability to lawfully terminate a tenant’s commercial lease, renew or extend a lease agreement, or reenter or repossess his or her commercial property. Commercial tenants have an obligation to pay their rent. Any monetary damages that were recovered for harassment may be reduced by the amount of delinquent rent or other sums owed to the landlord.

If you are a landlord or tenant who is facing a complex landlord-tenant dispute, it is important to seek guidance from an experienced lawyer who can help you through the process and protect your legal rights. The New York landlord-tenant lawyers at McGuire & Peleáz P.C. Have experience representing hundreds of New York landlords and tenants in complex matters. For more information or to schedule a consultation, contact our New York landlord-tenant law firm at (631) 348-1702.

How To Bring Up A Prenuptial Agreement With A Potential Spouse

How To Bring Up A Prenuptial Agreement With A Potential SpouseTiming
It is important to bring up a prenuptial agreement as early as possible because it involves important binding decisions. It is important to have the conversation when each party has time to devote to the conversation.

Goals
Ask yourself why you want to have a prenuptial agreement? Maintain a clear objective prior to discussing the agreement with a future spouse. It may be beneficial to speak with an experienced attorney in order to assist in structuring the conversation to ensure that all relevant points are considered.

Plan the Conversation
Plan out the conversation as best as possible beforehand, because it may help address topics that you feel are most important.

Manage Emotions
Discussing a prenuptial agreement may be very stressful. In this instance, both parties may feel nervous and are experiencing an abundance of other emotions. It is important that both parties maintain composure and respond to each others concerns in a constructive manner. In addition, try to avoid tension by taking breaks throughout the process.

Be Mindful of the Other Person
Ask yourself why he or she would want to sign a prenuptial agreement? It is important to put yourself in the other person’s shoes, be flexible, and communicate any concerns you may have.

Discuss Financial Information
Prior to discussing a prenuptial agreement, it is important that financial information is addressed, such as assets, income, and debt of both parties. This not only builds trust, but sets the stage for drafting the agreement. This way there are no surprises.

Do Not Solicit Advice From Family and Friends
A prenuptial agreement is between you and your future spouse. Remember your goals in the process. Taking advice from family and friends may pressure both parties in a negative manner.

These are a few useful points for a discussion with a potential spouse regarding a prenuptial agreement. If you are considering entering into a prenuptial agreement it is important to keep your goals in mind for the future. The Suffolk County matrimonial law attorneys at McGuire & Peláez, PC are experienced in representing clients in a variety of matters, including pre- and post-nuptial agreements, divorce, child support, custody and visitation, maintenance and equitable distribution. Ms. Peláez has practiced daily in the family court for more than 10 years as private and court appointed counsel, and she will zealously fight for your rights. Contact our Long Island divorce law firm at (631) 348-11702.

Tragic New York Boating Accident Case Comes to a Close

New York boating accident lawyerAs the weather heats up, more New Yorkers are taking their boats out onto the open seas. Although boating is a fun activity to engage in, it is important to recognize that it can also be extremely dangerous if certain precautions are not taken. Boat accidents may occur for various reasons, including boating under the influence, negligent speeding, or a manufacturers defect, among others. Recently, a New York man was convicted of manslaughter in a horrific boating accident that occurred on Lake George and resulted in the death of an 8-year-old girl and other serious injuries.

In July 2016, 25-year old Alexander West was speeding when his 21-foot fiberglass boat went airborne over a 28-foot antique wooden Gar Wood carrying 8-year-old Charlotte McCue and her family. While the boat was in the air, the propeller struck Charlotte who was sleeping on her mother’s lap, killing her instantly and severely injuring her mother. Authorities said that Mr. West was intoxicated from drugs and alcohol use at the time the accident occurred. Mr. West was said to have fled the scene of the accident and neither him nor his three passengers reported the crash.

During trial, Mr. West’s defense attorney attested that he had the right of way and Mr. Knarr, Charlotte’s grandfather who was piloting the family’s boat, failed to yield. As reported by The New York Times, a defense expert testified that even if a boat driver has the right of way, he or she must slow down or change course if a crash appears imminent. The plaintiff’s counsel pointed out that Mr. West did neither.

On May 8, after deliberating for 12 hours over the course of two days, Mr. West was convicted of manslaughter. He was found guilty on 12 charges, including criminally negligent homicide and leaving the scene of an accident, and faces up to 22 years in prison.

Charlotte’s tragic death sent shockwaves throughout the Lake George community and New York State as a whole. Her death now serves as a reminder to always practice driving safety on the water and not underestimate the dangers associated with boating.

Boating accidents are not as common as car accidents or motorcycle accidents but still result frequently and can have serious debilitating effects. According to the Department of Recreations, in 2014 there were 206 boat accidents in New York State, resulting in 85 injuries and 22 fatalities. Many boat accidents occur because individuals underestimate the dangers associated with boating, do not understand safety rules on the water, or act in a reckless manner.

Tips to limit the potential of serious boating accidents that may ensure you and your loved ones safe return from sea include:

  • Require all passengers to wear life jackets
  • Avoid the use of alcohol and drugs
  • Maintain safe speeds
  • Regularly inspect the boat
  • Be conscious of shallow waters
  • Have a kill switch
  • Know how to contact the Coast Guard
  • Ensure all lights on the vessel are properly functioning
  • Have first aid gear on board
  • Be conscious of the weather
  • Have awareness for other boaters
  • Be conscious not to overload a boat with items or overcrowd a boat with passengers

Boating accidents can result in serious injuries that can have long-lasting physical, emotional, and financial effects on the victims. If you or a loved one has been injured in a boating accident caused by the negligence of the captain, a defective boat design or repair, or another boater at sea, it is important to seek the guidance of an experienced New York personal injury lawyer. The New York boating accident lawyers at McGuire & Peláez strive to secure full and appropriate compensation for their clients’ injuries. For more information or to schedule a consultation, contact our Long Island, New York personal injury law firm at (631) 348-3628.

Establishing A Father And Child Relationship May Preclude DNA Testing

Long Island family law lawyerAccording to the 2007 New York Family Court Act, paternity proceedings may be started at any time from pregnancy until a child is 21 years of age. If a motion is made by either party to perform a DNA comparison, the court may order the genetic testing unless the test is not in the best interest of the child. If testing is not within the best interest of the child, the court must provide in writing whether it is due to “equitable estoppel, the presumption of legitimacy of a child born to a married woman, or res-judicata, which means the issue has been judicially determined.”

Equitable estoppel will be applied when it is in the best interest of the child because, without it, would result in fraud or injustice. Ordinarily this occurs when an individual has assumed himself to be the father of a child due to providing support or close parenting. According to the New York Court of Appeals, equitable estoppel may be invoked to “protect a recognized father and child relationship.” According to Matter of Shondel v. Mark D., if an individual is in doubt about whether or not he is the father of a child, he must request a DNA test prior to assuming the role of father. Otherwise, a person who assumes the role of father, but is still in doubt about whether or not they are in fact the biological father, may be precluded from having a DNA test, due to it not being in the best interest of the child. It does not matter whether or not the alleged father reasonably relied on a false representation of fact. It matters whether the child relies on the representation in determining whether estoppel will apply.

For estoppel to apply, an individual must provide clear and convincing evidence as to the elements in order for the doctrine to apply. In determining “best interest of a child,” factors such importance of knowing true identity of biological parent; trauma of the test on the child; and the effect of child’s relationship with the father if the test is not allowed, may be examined. An important point to add is that estoppel applies to both women and men, which is demonstrated in Matter of Shondel v. Mark D. For example, it may prevent a woman from asking her partner to succumb to a DNA test after the woman allowed him to establish a father and child relationship.

In addition, establishing paternity may affect matters, such as custody, visitation, child support or inheritance. It is important that you are aware of your parental rights, when it comes to you and your children. If you have questions regarding paternity or are seeking custody or visitation of your child, contact the Suffolk County family law attorneys of Mcguire & Peláez, PC. Ms. Peláez has practiced daily in the family court for more than 10 years as private and Court appointed counsel, and she will zealously fight for your rights as a parent. Contact our Long Island family law firm at (631) 348-1702.

Custody over Pets

New York pet custody lawyerGetting divorced can be a very complex process. Divorce may involve the division of assets as well as custody negotiations. Today, custodial disputes over pets are also very common. In five years, the number of divorce cases involving a dispute over pets increased by 27 percent, according to the American Academy of Matrimonial Lawyers. Among these cases were disputes over animals such as dogs, cats, snakes, and parrots, among others.

In the past, many state judicial systems viewed pets as personal property. Now, that view is changing. Today, courts will allow shared custody, support, and visitation to pet owners. Additionally, some states allow pet parents to establish a trust to benefit their pets should they no longer be able to care for their needs. In fact, it is becoming more common for prenuptial agreements to address custody of pets in the event of a divorce.

In New York, a husband and wife were fighting over custody of their Pointer Greyhound, Gigi. Originally, the court ordered joint custody to the pet parents. However, the two fought for almost 24 months and racked up over $150,000 in legal fees in order to acquire sole custody of their beloved dog. The court resolved the custody dispute by hiring an animal behavioral specialist to videotape a day in the life of Gigi as a court ordered bonding study. The videotape revealed that Gigi enjoyed spending her time with the wife, who was then awarded sole custody of Gigi. This study has led to many couples who are getting divorced videotaping their animal’s daily lives in order to show it in court as evidence.

If an individual is considering entering divorce proceedings and would like to seek custody of a pet, he or she may be able to bring a petition seeking permanent custody or visitation. It is important that you are aware of your rights when it comes to your pet. The Suffolk County matrimonial law attorneys at McGuire & Peláez, PC are experienced in representing clients in a variety of matters, including divorce, child support, custody and visitation, maintenance and equitable distribution. Ms. Peláez has practiced daily in the family court for more than 10 years as private and court appointed counsel, and she will zealously fight for your rights. Contact our Long Island divorce law firm at (631) 348-11702.

Motorcycle Accidents in New York

New York Motorcycle Accident LawyerWith clear skies and sunshine, the summer months are sure to be the peak time for New York motorcyclists to head out on the open road. Due partly to rising gas prices, more people are using motorcycles than in recent years. In 2015, there were 8.6 million private and commercial motorcycles on the road. With more cyclists on the streets, there is a greater likelihood for a serious motorcycle accident to occur. According to the National Highway and Safety Administration (NHTSA), fatal motorcycle accidents occur 27 times more frequently than fatalities for other motor vehicles. A number of various factors contribute to these serious accidents, including errors by motor vehicle drivers and distracted driving. Since New York’s no-fault laws generally do not apply to motorcycles, these types of accident cases are handled differently from other motor vehicle accidents.

Errors by motorcycle drivers and other motorists are prominent factors that contribute to catastrophic motorcycle accidents. One of the single most dangerous situations for motorcyclists are when drivers of other vehicles make a left-hand turn, or left-hand lane change, and then crash into the bike. These situations account for 42 percent of all motorcycle accidents that involve a car. The car usually strikes the motorcycle when the motorcycle is moving straight through an intersection, passing the car, or trying to overtake the car. These accidents are common between two cars, but the smaller size of the bike makes it even less visible to the turning vehicles. In most cases, a vehicle that strikes another vehicle while making a left-hand turn will be held at fault for the accident. However, if the motorcyclist contributed to the accident by being in the wrong lane or speeding, he or she may be held partly liable.

Drivers who are distracted while driving pose danger to other motorists on the road, especially motorcyclists. One of the most common forms of distracted driving is cell phone use. Just as alcohol and drug use inhibits a driver’s ability to be aware of their surroundings, so does using a phone while driving. It is important for drivers to stay off their phone and keep an eye out for motorcycles as some may be hard to spot due to their smaller size. The failure of motorists to recognize motorcycles on the roadways is a predominant factor in motorcycle accidents.

Motorcycles are not covered under New York’s no-fault laws and are generally excluded from its coverage for medical and lost wages. However, motorcyclists who are injured in accidents do not have to succumb to New York’s serious injury threshold limitations and may file a claim against a negligent driver for injuries within those restrictions. New York motorcycle accident lawsuits may provide compensation for medical expenses, lost wages, pain and suffering, future medical costs, loss of earning capacity, and loss of consortium. A plaintiff may bring a lawsuit against a driver, a motorcycle manufacturer or part manufacturer, or a municipality whose negligent actions resulted or contributed to the crash. In these cases, the plaintiff must prove that the defendant owed them a duty of care, breached this duty, the breach of duty resulted in the motorcyclist’s injuries and the cyclist was in fact injured.

Motorcycle accidents often result in serious injuries. If you or a loved one has been seriously injured in a motorcycle accident, it is important to seek the guidance of an experienced personal injury attorney. The New York accident lawyers at McGuire & Peláez P.C. handle various personal injury matters, including serious motorcycle accidents. For more information or to schedule a consultation, contact our Long Island motorcycle accident law office at (631) 348-1702.