A recent study was published by the Center for Disease Prevention and Control which indicated that depending on race, socio-economic class and age, living together before actual marriage may be beneficial to the longevity of the marriage.  However, there were other sources who conducted similar studies which rendered very different results.  Grant it a myriad of factors were considered, i.e. whether the couple was actually engaged while they were cohabitating, that impacted the varying results.  However, either way the fact remains that there is more to predicting the strength of a marriage than whether a couple actually lives together beforehand.  Moral values, religious and spiritual beliefs and personal views on family and marriage play a much more significant role than these external factors. 

     There is usually some hidden agenda in publishing most of these studies/surveys, hence the disparity in the results.   In addition, many of these reports have an interest in disseminating information that promotes their own platform.  My aim here is to highlight how New York laws, courts, law enforcement and social agencies differs in their message by how they favor either a married couple or a cohabitating one.  Let’s take a look at the laws that apply to couples, to keep it simple I will focus on heterosexual couples.  Both childless couples and couples with children, are subject to laws pertaining housing, criminal, family law, elder and consumer law on the state level, there are federal laws that broaden the areas of law to immigration, bankruptcy and tax law.  The manner in which these laws affect couples differ depending on their marital status, which includes divorce but we will not spend too much time on that category.

     Criminal laws like domestic violence, fraud, sexual assault and harassment vary in their application based on the marital status of the parties.  In New York, domestic violence infractions, which include harassment, menacing, assault/battery and contempt, in substance may be brought against parties whether married or not.  However, the penalties for these crimes vary depending on their status.   For instance, if there is a final Order of Protection issues at the disposition of the criminal case, there may be stipulations or conditions included which take into account the fact that the parties are married.  Restrictions, which are typically more broad when the parties are married, may permit contact between the parties in very specific circumstances while cohabiting parties may not be given such consideration.  In fact, if a Family Court Order of Protection arose out of the domestic violence incident, up until recently cohabitating parties were prohibited from obtaining such Order if they did not have a child in common.

     In family law matters, such as child support, child custody or child visitation, being married versus merely cohabitating also results in varying treatment.  For the most part, family law issues are dealt with in Supreme Court (only if the parties are divorcing or were recently divorced) or in Family Court (although married parties may have their family law case heard here, cohabitating parties must have their case heard in this venue).   Let’s take child support, if the parties are married and the child is born while the parties are married, there is a presumption that the child is of the marriage and therefore the financial responsibility of the married parties.  Conversely, there is no such presumption where the parties merely cohabitate, the custodial parent has the burden of proving paternity (unless there is a valid acknowledgement of paternity).  In child custody cases, although there is no explicit difference in how the courts treat parties that are married as opposed to those cohabitating, some judges, attorneys and forensic experts, will give much more careful scrutiny to both parties when the family is more intact, and hence married.  Specifically, the judge may consider the fact that both parents may intend to stick around for the long haul when they are married, and therefore factor the impact of having two active or present parents in making the child custody determination.  A cohabitating parent may not get such significant consideration, with the assumption being that since he or she made no commitment that their future intentions are more elusive.  This is typically the same thinking with regards to child visitation, with a much more profound difference being in a situation where the non-custodial parent is the party that is married as opposed to cohabitating.  In that case, the court will most definitely weigh the fact that the non-custodial parent is married, giving less weight to him or her if they are cohabitating. 

   Wills, power of attorney or deeds also differ in effect when the parties are married.  These documents, in New York, are developed separately and specifically with regards to parties’ marital status.  The inchaote rights, tax implications and possessory interests under each of these legal documents will differ based on if the parties are married at the time of their drafting. 

     Although it may be legally beneficial for some to marry, for others cohabitating is preferred as a matter of economic convenience.

Feel free to contact my office for a free telephone consultation.

It is advisable to get as much information beforehand about the judge your case will be heard by.   Before the scheduled court appearance visit the courthouse to ask questions about the judge, the attorneys, etc. so that you have some idea of his or her practices, tendencies, beliefs, etc.  And if possible, consult with an attorney that has experience with your sort of case and the particular judge.

During the 1980’s and 1990’s it was common for many babies to leave the hospital without being named and now many of these children (or young adults) still have birth certificates that indicate “Baby boy Doe”.  In these instances it is always advisable to have the birth certificate changely almost immediately.  However, many did not and are now faced with the imminent need to have a complete birth certificate.  In that case a court order is necessary because many hospitals do not have the records for these births ( as well as the Dept. of Health) and thus a change in name is required by obtaining a court order. 

Here are additional New York child support facts:

11.      A non-married custodial mother needs to establish legal father to sue for child support.  Paternity must be established before a child support obligation may be imposed, being named as the father on the child’s birth certificate does not establish one as the “legal father”.  The father signing an Acknowledgement of Paternity or having a judge enter an Order of Filiation establishes legal father.
12.      Where the parents were not married at the time the child was conceived and paternity is questionable, a paternity test should be done as early as possible.  Providing any financial or emotional support for the child before a paternity test is done may prevent the court from entertaining a request for paternity after the fact.  They may do so under legal theories called res judicata or collateral estoppel.
13.      There is a “presumption of legitimacy” where a child was born while the mother is married to a man.  This means that even if the child is not the biological child of the husband’s, the law presumes that the child is his when making a determination for child support.
14.      If the non-custodial parent’s annual basic child support obligation reduces his/her income below the single person federal poverty level, which is $10,210 for 2007, then his/her support obligation may be reduced to $50/month or the difference between the support obligation and the poverty level, whichever is greater.  If the annual basic support obligation reduces income below the self-support reserve, which is 135% below the federal poverty level, then his/her support obligation may be reduced to $25/month or the difference between the two, whichever is greater.
15.      Income for the purposes of calculating child support obligation includes disability benefits, social security benefits, unemployment benefits.  One time or non-recurring benefits may also be considered income, such as lottery winnings, insurance payouts, discharge from indebtedness and paybacks for loans made.
16.      Income for the purposes of calculating child support obligation is reduced by Medicare, social security and city taxes.  The total of these taxes usually amount to 10% of one’s income.
17.      “Mandatory” add-ons to the basic child support obligation include reasonable daycare expenses and unreimbursed medical expenses.  “Discretionary” add-on expenses include educational expenses for private, secondary or special education.
18.      Although the court has the authority to deviate from the Child Support Standards Act (“CSSA”) they rarely do.  A few instances where they will more than likely deviate is when there is extended visitation with the non-custodial parent which substantially reduces the custodial parent’s expenses due to the extended visit or where the costs on the non-custodial parent for exercising visit with the child are huge and affects the resources of that parent.
19.      Although the CSSA states that the court is to add both parent’s adjusted gross income together and then apply the applicable percentage to the combined adjusted gross income, they often apply the calculation to the non-custodial parent’s income only.  Applying the calculation to the combined income is most relevant when determining the parties’ pro rata share for mandatory and discretionary add-ons.
20.     The statute of limitations for enforcing a child support order has been changed from six years to twenty years.

          Although child support hearings may seem straight forward, there are instances where one should not attempt to appear without representation.  Non-salaried or self-employed non-custodial parents should consult with an experienced New York family law attorney. 

Contact our office to discuss other issues concerning child support cases.

New York has recently promulgated a law that gives domestic violence victims one less thing to worry about. Although the social, mental and physical impacts of domestic violence cases are ubiquitious, many are still oblivious to the fact that there are huge financial and economical burdens imposed upon victims as well. Not to mention, one not so obvious forms of domestic violence is withholding or controlling the finances, depriving the victim of getting or providing for their most basic needs. Particularly, many victims have little or no means to provide for their living expenses, therefore relying solely on their aggressor for such support. So when that victim wants to get out of their current living situation, either for financial reasons or safety reasons, they are very often forced to stay.

In New York, many residential leases rarely give tenants the freedom to voluntarily extricate themselves from the legal obligations of the lease without consequences. New York law prohibits a tenant from “breaking” a lease except in rare circumstances. For instance, a tenant can not leave an apartment during the middle of a leasehold because he or she does not feel the neighborhood is safe. If he or she chooses to leave the apartment, there is the strong possibility of facing lawsuits, bigger finacial burdens and a blemish on their credit history. However, if that same tenant chooses to leave because the apartment itself is unsafe or uninhabitable, then he or she may have a legitimate defense for breaking the lease if the landlord commences a proceeding in Housing Court. In many cases, victims of domestic violence have been forced to continue to live in perpetual danger because of these very probable consequences. Alternatively, they have no choice but to abandon the apartment in an effort to relocate to a safer place, which makes them vulnerable to litigation brought by the landlord.

Well as of August 2, 2007 the new law comes into effect.

Chapter 73 of the Laws of 2007 amends the Real Property Law by adding a
new §227-c, which provides that, as to any lease or rental agreement
covering premises occupied for dwelling purposes, a lessee or tenant for
whose benefit an order of protection has been issued shall be permitted
to terminate such lease or rental agreement, and quit and surrender
possession of the premises and land and be released from any liability
to pay rent or other payments for the time subsequent to the date of
termination of such lease.

The lessee or tenant may, on ten days’ notice to the lessor or owner of
the premises, seek an order of the court that issued the order of
protection authorizing such lessee or tenant to terminate the lease or
rental agreement. The lessor or owner shall be afforded an opportunity
to be heard by the court and express opposition to the issuance of a
termination order. The court shall issue such order only if the lessee
or tenant establishes that: (i) there continues to exist a substantial
risk of physical or emotional harm to such person or such person’s child
from the party covered by the order of protection if the parties remain
in the premises, and that relocation will substantially reduce such
risk; (ii) the lessee or tenant attempted to secure the voluntary
consent of the lessor or owner to terminate the lease or rental
agreement and the lessor or owner refused; and (iii) that the lessee or
tenant is acting in good faith.

The court shall condition the granting of the order on, inter alia, the
lessee or tenant’s timely payment of all sums due and delivery of the
premises in accordance with the terms of the lease. Any agreement by a
lessee or tenant waiving or modifying these rights shall be void as
contrary to public policy.

Another major advance in addressing the many ancillary issues that victims of domestic violence deal with daily.

new-law-on-lease-.txt

Our office is dedicated to providing professional legal services at affordable rates. We understand that not everyone has the ability to attain the services of private attorneys. However, we also know that some legal matters are best served if handled by professionals. Therefore, we make it our business to make legal services affordable. Our office is comprised of a small staff, but we provide large firm efficiency. We pride ourselves on serving a community that is often neglected. When you come into our office you will be provided with an honest, professional and competent analysis of your legal issues. We will give you several options that are suitable for your needs.

Although we practice in a number of areas, our specialty is divorce/separation and family law. We have a special emphasis on domestic violence cases throughout New York City. We will explain to you what the most feasible options are for you, the probability of prevailing on those issues most important to you, and the process entailed through the end. We will keep you informed of all the steps and procedures along the way. We will answer your questions and address your concerns in a timely manner. Whether you retain our office for an uncontested divorce or a child custody case, we will give you the time and attention you deserve. Doesn’t matter if you are the plaintiff or defendant, petitioner or respondent, we will present or defend your case with the utmost vigor and zeal. We take fighting very hard for you, very seriously.