FAILURE TO PAY CHILD SUPPORT NOW A CRIME IN NEW YORK

The New York Legislature is intent on getting far more serious with "deadbeat" parents who do not pay child support.

Effective November 1, 2008, failure to pay child support may mean criminal problems for the "deadbeat" parent.

The Legislature amended New York Penal Law § 260.05(2), effective November
1, 2008, as follows:

Pursuant to New York Penal Law § 260.05(2), commencing
November 1, 2008, the following will become effective:

2. being a parent, guardian or other
person obligated to make child support
payments by an order of child support
entered by a court of competent jurisdiction
for a child less than eighteen years
old, he or she knowingly fails or refuses
without lawful excuse to provide support
for such child when he or she is able to
do so, or becomes unable to do so, when,
though employable, he or she voluntarily
terminates his or her employment, voluntarily
reduces his or her earning capacity,
or fails to diligently seek employment.
If a person is convicted of the non-support
of a child in the second degree,
he or she is charged with a Class A
misdemeanor.

Also, commencing November 1, 2008, New York
Penal Law § 260.06(1)(a) will be added so that if the party
is guilty pursuant to New York Penal Law § 260.05 and
was previously convicted within the preceding five (5)
years for a crime in that same section, the party will be
charged with non-support of a child in the first degree, a
class E. Felony.

One quirk in the new law: This new law applies only to
the failure to support children under the age of 18,
when a child is entitled to be supported in New York
until the age of 21 or sooner emancipated.

How Will It Be Implenented ?

Will matrimonial judges now automatically refer "deadbeat" parents who do not pay child support to the criminal authorities ?

Do attorneys have an ethical obligation to report this new crime if they have clear proof that the crime of non support of a child is occurring ?

Will the District Attorney follow through on "deadbeats" and
truly prosecute ?

There are unanswered questions about the implementation of this new tough standard.

However, one message is crystal clear to those who are ordered to pay support: the stakes just went up. You failure to pay could run you into having a permanent criminal record, as well as potential jail time.

The best advice appears to be simple: Pay your child support !!

November 11, 2008

Robert G. McDermott, Esq.
McDermott Law Offices
110 Marcus Boulevard, Suite 300
Hauppauge, New York 11788
Tel. 631-414-0094
Fax 631-414-0098
Email: bob@mcdermottlaw.com
Internet: http://www.mcdermottlaw.com/

CHANGE IN NEW YORK LAW CUTS OFF DESIGNATION OF FORMER SPOUSE AS BENEFICIARY OF ASSETS ON DEATH

Divorce or Annulment Now Revokes Any Revocable Disposition or Appointment of Property to a Former Spouse

Under former law a divorce did not revoke many revocable dispositions ( "testamentary substitutes"), such as lifetime revocabletrusts (including Totten Trusts), life insurance policies, or joint tenancies (including joint bank accounts). Nor did a divorce revoke a power of attorney given to a former Spouse under provisions of the General Obligations Law.

But an important amendment to the law has changed all that. Existing Estates, Powers and Trusts Law (EPTL) 5-1.4 has been repealed and a new EPTL 5-1.4 has been enacted which provides that a divorce or annulment will now revoke any revocable disposition or appointment of property to a former Spouse, including a disposition or appointment by will, by beneficiary designation, or by revocable trust (including a bank account in trust form). It also revokes any revocable provision conferring a power of appointment on the former spouse and any revocable nomination of the former Spouse to serve in a fiduciary or representative capacity, such as nomination of the former Spouse as a personal representative, executor, trustee, guardian,
agent, or attorney-in-fact.

A divorce would sever joint tenancies between former Spouses (including joint bank accounts) and transform them into tenancies in common. According to the Sponsor’s Memorandum the new statute does not change the New York case law concerning the effect of divorce on tenancies by the entirety. (See Kahn v Kahn, 43 NY2d 203 (1977); Anello v Anello, 22 AD2d 694 (1964)). Laws of 2008, Chapter 173, § 2, effective July 7, 2008.

______________________
Robert G. McDermott
McDermott Law Offices
110 Marcus Boulevard, Suite 300
Hauppauge, New York 11788
Tel. 631-414-0094
Fax 631-414-0097
E-mail: bob@mcdermottlaw.com
Internet: http://www.mcdermottlaw.com/