Legal Blog

NY Apellate Court Allows Gay Partner to Inherit as a Spouse

2011-03-14T21:12:00.000-07:00

A New York Appellate Court (Appellate Division, First Dept) in Matter of Ranftle ruled on February 24, 2011 that a survivor of a same-sex marriage can inherit as a spouse.

Lambda Legal, a gay-rights legal group, called it the first appellate decision of its kind in New York.

Same-sex couples cannot wed in New York; however, J. Craig Leiby and H. Kenneth Ranftle were legally married in Canada in 2008 after being together for almost 25 years. The Appellate Court ruled that Leiby is entitled to recognition as the surviving spouse.

One of Ranftle's brothers, Richard, sought to contest the Will, based on a challenge to the legitimacy of the marriage. Richard Ranftle contended that the recognition of the marriage violated public policy in New York. The Will left most of the estate to Leiby, with bequests to Richard Ranftle, other brothers and a goddaughter.

"New York's long-settled marriage recognition rule affords comity to out-of-state marriages" that are valid where they are made, the Appellate Division wrote.
There are exceptions for marriages that violate New York statutes or "natural law," sometimes interpreted to mean such situations as polygamy and incest. But "same-sex marriage does not fall within either of the two exceptions," the appeals judges wrote.

New York court decisions have recognized such marriages in cases arising in other contexts, such as health benefits. The Leiby case appears to mark the first time a New York appeals court has recognized a same-sex spouses for inheritance purposes.

DOMESTIC ABUSE

2010-10-07T16:11:00.000-07:00

Having been involved in family law disputes for two decades,
I have seen the horror of domestic abuse, including a young
woman who was killed by her husband, one who was raped and
severely beaten, and countless others, including men, women,
children and seniors, who were otherwise abused physically,
emotionally or financially.

My daughter Grace McDermott made the below video for a
social media class at college.

It is a graphic reminder of the brutal reality of
domestic abuse. I am proud of her efforts to bring
continuing attention to this difficult problem.

http://www.youtube.com/watch?v=jOBwfQP3hqY

Copy the link and post it in your browser to view.

It is a tough one to watch, but a great reminder that anyone
on the receiving end of abuse should get out and get help
before it goes terribly wrong.

For help with an abuse problem call:

NATIONAL DOMESTIC VIOLENCE HOTLINE 1-800-799-7233

ELDER ABUSE IN NEW YORK STATE: 1-800-342-3009 (Press Option 6)

CHILD ABUSE IN NEW YORK STATE: 1-800-342-3720

Robert G. McDermott, Esq.
Tel. 631-414-0094
Email: bob@mcdermottlaw.com
Web: www.mcdermottlaw.com

2010-08-16T04:27:00.000-07:00

NO-FAULT DIVORCE FINALLY A REALITY IN NEW YORK

It was announced today (August 16, 2010) by Governor Paterson's office that Governor
Paterson signed into law a package of four bills that would bring significant reform to New York's outdated divorce laws. In particular, the Governor signed into law
A.9753A/S.3890, which would make New York the last State of the fifty to adopt no-fault divorce. The bill would end the requirement that a party seeking a divorce had to claim one of a limited set of reasons as the basis for doing so, a rule that forced parties to invent false justifications, and that prolonged and aggravated the painful divorce process.

The reform package also included legislation that would revise the process for setting awards of temporary maintenance while a divorce is pending, by creating a formula and list of factors that would presumptively govern such awards (A.10984/S.8390 and A11576/S.8391). This would allow for speedy resolution of the maintenance issue, and prevent less well-off parties to divorce proceedings from falling into poverty during litigation, because they lack the resources to obtain a temporary maintenance order. Another bill (A7569-A/S4532-A) would create a presumption that a less monied spouse in a divorce case is entitled to payment of attorneys' fees.

Under current law, a party that cannot afford to secure representation in a divorce proceeding must make an application for fees at the end of the process, which can force a poor individual to proceed without a lawyer, or to surrender on important issues due to lack of means. These bills received strong support from women's groups, advocates for victims of domestic violence and legal aid organizations.

"Finally, New York has brought its divorce laws into the twenty-first century," Governor Paterson said. "These bills fix a broken process that produced extended and contentious litigation, poisoned feelings between the parties and harmed the interests of those persons – too often women – who did not have sufficient financial wherewithal to protect their legal rights. I commend the sponsors on providing a real and effective legislative solution to a problem that has for too long bedeviled ordinary New Yorkers."

We will provide you with more updates concerning the effect of these important new laws as they become available.

Robert G. McDermott, Esq.
Tel. 631-414-0094
Email: bob@mcdermottlaw.com
Web: www.mcdermottlaw.com

August 16, 2010

UPSTATE NY WOMAN CRIMINALLY CHARGED FOR COMMITTING ADULTERY

2010-06-09T09:32:00.000-07:00

IF YOU CHEAT ON YOUR SPOUSE COULD YOU FACE CRIMINAL CHARGES IN NEW YORK ?

It is a story that has been reported by ABC News, The New York Daily News, and even papers in Europe (http://www.dailymail.co.uk/news/worldnews/article-1285015/Suzanne-Corona-face-adultery-charge-having-sex-US-park.html).

Police in upstate Batavia, New York found 41-year-old Suzanne M. Corona and 29-year-old Justin Amend engaged in a burst of passion on a table in Farrall Park at about 5:15 p.m. on Friday afternoon June 4, 2010.

After being observed engaging in sexual intercourse on a picnic table in the public park, both Ms. Corona and Mr. Amend were charged with public lewdness.

The public lewdness charge was not much of a surprise.

The second charge levied against Mrs. Corona, a married woman, was more unusual.

Mrs. Corona was also criminally charged with adultery, becoming one of a small handful people in New York State history to face the charge.

"It's a charge that all of our officers are aware of, but we don't come across it very often," Officer Eric Hill, a Batavia police spokesman, told the Democrat and Chronicle. "It's not very often you have people engaging in sexual activity in a park in broad daylight. This particular circumstance met all the criteria for the charge."

Only about 12 other people have been charged with the crime in nearly 40 years, according to experts.

Adultery and public lewdness are both misdemeanors, punishable by up to 90 days in jail or a $500 fine.

Section 255.17 of the New York State Penal Law criminally prohibits adultery,
providing, “A person is guilty of adultery when he engages in sexual intercourse with another person at a time when he has a living spouse, or the other person has a living spouse. Adultery is a class B misdemeanor.” A class B misdemeanor is punishable by up to 90 days in jail or a $500 fine.

A copy of the court papers detailing the charges are available on the internet at
http://www.13wham.com/media/lib/16/7/9/0/7900502d-fdb4-4962-b867-eede6e159b1f/Batavia_Adultry_Case.pdf.

Given that prosecutors who are trying to jail murderers, rapists, robbers and drunk drivers seem to have little interest in prosecuting most married folks with girlfriends or boyfriends on the side, one doubts that such prosecutions would become a new trend; however, the law remains on the books in New York.

The choice of a picnic table in a public park on a Friday afternoon in broad daylight was undoubtedly not the most prudent location for these lovebirds to express their extreme, non-marital fondness for one another.

In addition to criminal charges, you have to wonder if they got splinters, too.

EMPLOYERS MUST GIVE NOTICE TO NEW EMPLOYEES OF PAY RATE IN WRITING AS OF OCT. 26, 2009

2009-10-29T19:04:00.000-07:00

NOTE FOR EMPLOYERS

NEW LAW EFFECTIVE OCTOBER 26, 2009

THE LABOR LAW IN NEW YORK [SEC. 195(1)]REQUIRES NEW EMPLOYEES
TO GET WRITTEN NOTICE OF THEIR PAY RATES

Effective October 26, 2009, New York law now requires employers to provide a special notice to new employees about their pay.

Newly hired employees must be given written notice of their pay rate, pay day and, if applicable to the employee, overtime rate of pay. Employers must also obtain a written acknowledgment from employees that the employees have received the notice. See Labor Law §195(1) at the end of this posting.

The law states indicates that the acknowledgment must meet requirements established by the Department of Labor (DOL).

The DOL has now issued notice and acknowledgment forms to complying with Labor Law
§195(1), but there are some issues with the form DOL has issued.

The form does not seem to address situations in which commissions or bonuses must be included in the overtime calculation, so the overtime rate cannot be known in advance. It also does not say how to inform employees of their overtime rate if that overtime will fluctuate from week to week

The law seems to indicate that employers must use the form of acknowledgment issued by the DOL, but it does not specifically require use of the exact notification form published by the DOL. If employers must use that form, it would be potentially problematic given these open issues.

A copy of the "Notice and Acknowledgement of Wage Rate and Designated Payday, Hourly Rate Plus Overtime" form can be found at the DOL's website.

Just cut and paste the below web site into your internet browser to get to the new DOL forms and information on the new law.

http://www.labor.state.ny.us/workerprotection/laborstandards/workprot/lshmpg.shtm

While there are open issues with the form and its sufficiency that need to be cleared up, employers would be well advised to, at minimum, use the form published by the DOL until there is further guidance or clarification from DOL about changes or updates to the form.

Please confirm with your Human Resources staff that you are complying with the above requirement for all hires brought on after October 26, 2009.

_____________________

NY Labor Law § 195(1)

§ 195. Notice and record-keeping requirements. Every employer shall:
1. notify his or her employees, in writing, at the time of hiring of
the rate of pay and of the regular pay day designated by the employer in
accordance with section one hundred ninety-one of this article, and
obtain a written acknowledgement from each employee of receipt of this
notice. Such acknowledgement shall conform to any requirements
established by the commissioner with regard to content and form. For all
employees who are eligible for overtime compensation as established in
the commissioner's minimum wage orders or otherwise provided by law or
regulation, the notice must state the regular hourly rate and overtime
rate of pay;

Robert G. McDermott
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: www.mcdermottlaw.com

NY DIVORCE LAW AMENDED

2009-09-22T07:32:00.000-07:00

NEW YORK DIVORCE LAW AMENDED
AUTOMATIC RESTRAINING ORDERS AGAINST TRANSFER OF ASSETS
IMMEDIATELY IN EFFECT WHEN DIVORCE CASE STARTED

A new law has gone into effect for New York divorce cases as of September 2009.

Starting September 1, 2009 automatic orders will now immediately go into effect whenever someone is served with both a summons and a copy of the automatic orders.

These automatic orders are basically concerned with preserving the financial
status quo of the parties.

The automatic orders:

(1) Restrict a party from disposing of property in any way without
the consent of the court or the other party.

(2) Restrict any funds, stocks or other assets from being disposed or
altered.

(3) Prevent unreasonable debts from being incurred against the parties'
interests or property.

(4) Require that all health insurance policies be maintained and unaltered
for the parties and their families.

(5) Requires that all life, home and auto insurance policies will be
maintained and shall not be altered.

These automatic orders may reduce the need for early motions to restrict such funds and property in divorce actions.

Below is a sample of the text of the automatic orders to be served with the summons:

AUTOMATIC ORDERS

Pursuant to New York DRL Section 236(B)(2) the following automatic orders are binding upon the Plaintiff immediately upon the filing of the summons, or summons and complaint, and upon the Defendant immediately upon the service of these automatic orders with the summons. The automatic orders shall remain in full force and effect during the pendency of this action, unless terminated, modified or amended by further order of this Court upon motion of either of the parties or upon written agreement between the parties duly executed and acknowledged. The automatic orders are as follows:

(1) Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney's fee in connection with this action.

(2) Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of any tax deferred funds, stocks or other assets held in any individual retirement accounts, 401k accounts, profit sharing plans, Keough accounts, or any other pension or retirement account, and the parties shall further refrain from applying for or requesting the payment of retirement benefits or annuity payments of any kind, without the consent of the other party in writing, or upon further order of this Court.

(3) Neither party shall incur unreasonable debts hereafter, including, but not limited to, further borrowing against any credit line secured by the family residence, further encumbrancing any assets, or unreasonably using credit cards or cash advances against credit cards, except in the usual course of business or for customary or usual housing expenses, or for reasonable attorney's fees in connection with this action.

(4) Neither party shall cause the other party or the children of the marriage to be removed from any existing medical, hospital and dental insurance coverage, and each party shall maintain the existing medical, hospital and dental insurance coverage in full force and effect.

(5) Neither party shall change the beneficiaries of any existing life insurance policies, and each party shall maintain the existing life insurance, automobile insurance, homeowners and renters insurance policies in full force and effect.

- Robert G. McDermott, Esq.
Copyright September 2009

SUMMARY OF PERTINENT PROVISIONS OF ECONOMIC STIMULUS PACKAGE

2009-02-13T11:30:00.000-08:00

February 13, 2009

The following is a summary of the Economic Stimulus Package pertinent provisions which Congress approved this week.

President Obama is expected to sign this bill into law on Monday February 16, 2009.
_________________________________

Summary of Pertinent Provisions of The Economic Stimulus Package
________________________________

AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009
PARTIAL SUMMARY OF TAX PROVISIONS
FROM CONFERENCE AGREEMENT

Full summary available at: http://finance.senate.gov/press/Bpress/2009press/prb021209.pdf

TAX RELIEF FOR INDIVIDUALS AND FAMILIES

Extension of AMT relief for 2009.

The bill would provide more than 26 million families with tax relief in 2009 by extending AMT relief for nonrefundable personal credits and increasing the AMT exemption amount by $70,950 for joint filers and $46,700 for individuals. This proposal is estimated to cost $69.759 billion over 10 years.

Exclude Private Activity Bonds from the Alternative Minimum Tax.

The alternative minimum tax (AMT) can increase the costs of issuing tax-exempt private activity bonds imposed on State and local governments. Under current law, interest on tax-exempt private activity bonds is generally subject to the AMT. This limits the marketability of these bonds and, therefore, forces State and local governments to issue these bonds at higher interest rates. Last year, Congress excluded one category of private activity bonds (i.e., tax-exempt housing bonds) from the AMT. The bill would exclude the remaining categories of private activity bonds from the AMT if the bond is issued in 2009 or 2010. The bill also allows AMT relief for current refunding of private activity bonds issued after 2003 and refunded during 2009 and 2010. This proposal is estimated to cost $555 million over 10 years.

Sales Tax Deduction for New Vehicle Purchases.

The bill provides all taxpayers with a deduction for State and local sales and excise taxes paid on the purchase of new cars, light truck, recreational vehicles, and motorcycles through 2009. This deduction is subject to a phase-out for taxpayers with adjusted gross income in excess of $125,000 ($250,000 in the case of a joint return). This proposal is estimated to cost $1.684 billion over 10 years.

Plug-in Electric Drive Vehicle Credit.

The bill modifies and increases a tax credit passed into law at the end of last Congress for each qualified plug-in electric drive vehicle placed in service during the taxable year. The base amount of the credit is $2,500. If the qualified vehicle draws propulsion from a battery with at least 5 kilowatt hours of capacity, the credit is increased by $417, plus another $417 for each kilowatt hour of battery capacity in excess of 5 kilowatt hours up to 16 kilowatt hours. Taxpayers may claim the full amount of the allowable credit up to the end of the first calendar quarter in which the manufacturer records its 200,000th sale of a plug-in electric drive vehicle. The credit is reduced in following calendar quarters. The credit is allowed against the alternative minimum tax (AMT). The bill also restores and updates the electric vehicle credit for plug-in electric vehicles that would not otherwise qualify for the larger plug-in electric drive vehicle credit and provides a tax credit for plug-in electric drive conversion kits. This proposal is estimated to cost $2.002 billion over 10 years.

Parity for Transit Benefits.

Current law provides a tax-free fringe benefit employers can provide to employees for transit and parking. Those benefits are set at different dollar amounts. This provision would equalize the tax-free benefit employers can provide for transit and parking. The proposal sets both the parking and transit benefits at $230 a month for 2009,
indexes them equally for 2010, and clarifies that certain transit benefits apply to federal employees. This provision is estimated to cost $192 million over ten years.

Computers as Qualified Education Expenses in 529 Education Plans.

Section 529 Education Plans are tax-advantaged savings plans that cover all qualified education expenses, including: tuition, room & board, mandatory fees and books. The bill provides that computers and computer technology qualify as qualified education expenses. This proposal is estimated to cost $6 million over 10 years.

"American Opportunity" Education Tax Credit.

The bill would provide financial assistance for individuals seeking a college education. For 2009 and 2010, the bill would provide taxpayers with a new "American Opportunity" tax credit of up to $2,500 of the cost of tuition and related expenses paid during the taxable year. Under this new tax credit, taxpayers will receive a tax credit based on one hundred percent (100%) of the first $2,000 of tuition and related expenses (including books) paid during the taxable year and twenty-five percent (25%) of the next $2,000 of tuition and related expenses paid during the taxable year. Forty percent (40%) of the credit would be refundable. This tax credit will be subject to a phase-out for taxpayers with adjusted gross income in excess of $80,000 ($160,000 for married couples filing jointly). This proposal is estimated to cost $13.907 billion over 10 years.

Refundable First-time Home Buyer Credit.

Last year, Congress provided taxpayers with a refundable tax credit that was equivalent to an interest-free loan equal to 10 percent of the purchase of a home (up to $7,500) by first-time home buyers. The provision applies to homes purchased on or after April 9, 2008 and before July 1, 2009. Taxpayers receiving this tax credit are currently required to repay any amount received under this provision back to the government over 15 years in equal installments, or, if earlier, when the home is sold. The credit phases out for taxpayers with adjusted gross income in excess of $75,000 ($150,000 in the case of a joint return). The bill eliminates the repayment obligation for taxpayers that purchase homes after January 1, 2009, increases the maximum value of the credit to $8,000, and removes the prohibition on financing by mortgage revenue bonds, and extends the availability of the credit for homes purchased before December 1, 2009. The provision would retain the credit recapture if the house is sold within three years of purchase. This proposal is estimated to cost $6.638 billion over 10 years.

TAX INCENTIVES FOR BUSINESSES

Small Business Capital Gains. Under current law, Section 1202 provides a fifty percent (50%) exclusion for the gain from the sale of certain small business stock held for more than five years. The amount of gain eligible for the exclusion is limited to the greater of 10 times the taxpayer’s basis in the stock, or $10 million gain from stock in that small business corporation. This provision is limited to individual investments and not the investments of a corporation. The non-excluded portion of section 1202 gain is taxed at the lesser of ordinary income rates or 28 percent, instead of the lower capital gains rates for individuals. The provision allows a seventy-five percent (75%) exclusion for individuals on the gain from the sale of certain small business stock held for more than five years. This change is for stock issued after the date of enactment and before January 1, 2011. This provision is estimated to cost $829 million over 10 years.

Temporary Reduction of S Corporation Built-In Gains Holding Period from 10 Years to 7 Years.

Under current law, if a taxable corporation converts into an S corporation, the conversion is not a taxable event. However, following such a conversion, an S corporation must hold its assets for ten years in order to avoid a tax on any built-in gains that existed at the time of the conversion. The bill would temporarily reduce this holding period from ten years to seven years for sales occurring in 2009 and 2010. This proposal is estimated to cost $415 million over 10 years.

Extension of Enhanced Small Business Expensing.

In order to help small businesses quickly recover the cost of certain capital expenses, small business taxpayers may elect to write-off the cost of these expenses in the year of acquisition in lieu of recovering these costs over time through depreciation. Until the end of 2010, small business taxpayers are allowed to write-off up to $125,000 (indexed for inflation) of capital expenditures subject to a phase-out once capital expenditures exceed $500,000 (indexed for inflation). Last year, Congress temporarily increased the amount that small businesses could write-off for capital expenditures incurred in 2008 to $250,000 and increased the phase-out threshold for 2008 to $800,000. The bill would extend these temporary increases for capital expenditures incurred in 2009. This proposal is estimated to cost $41 million over 10 years.

5-Year Carryback of Net Operating Losses for Small Businesses.

Under current law, net operating losses ("NOLs") may be carried back to the two taxable years before the year that the loss arises (the "NOL carryback period") and carried forward to each of the succeeding twenty taxable years after the year that the loss arises. For 2008, the bill would extend the maximum NOL carryback period from two years to five years for small businesses with gross receipts of $15 million or less. This proposal is estimated to cost $947 million over 10 years.

Extension of Bonus Depreciation.

Businesses are allowed to recover the cost of capital expenditures over time according to a depreciation schedule. Last year, Congress temporarily allowed businesses to recover the costs of capital expenditures made in 2008 faster than the ordinary depreciation schedule would allow by permitting these businesses to immediately write-off fifty percent of the cost of depreciable property (e.g., equipment, tractors, wind turbines, solar panels, and computers) acquired in 2008 for use in the United States. The bill would extend this temporary benefit for capital expenditures incurred in 2009. This proposal is estimated to cost $5.074 billion over 10 years.

Delayed Recognition of Certain Cancellation of Debt Income.

Under current law, a taxpayer generally has income where the taxpayer cancels or repurchases its debt for an amount less than its adjusted issue price. The amount of cancellation of debt income ("CODI") is the excess of the old debt’s adjusted issue price over the repurchase price. Certain businesses will be allowed to recognize CODI over 10 years (defer tax on CODI for the first four or five years and recognize this income ratably over the following five taxable years) for specified types of business debt repurchased by the business after December 31, 2008 and before January 1, 2011. This proposal is estimated to cost $1.622 billion over 10 years.

Incentives to Hire Unemployed Veterans and Disconnected Youth.

Under current law, businesses are allowed to claim a work opportunity tax credit equal to 40 percent of the first $6,000 of wages paid to employees of one of nine targeted groups. The bill would create two new targeted groups of prospective employees: (1) unemployed veterans; and (2) disconnected youth. An individual would qualify as an unemployed veteran if they were discharged or released from active duty from the Armed Forces during the five-year period prior to hiring and received unemployment compensation for more than four weeks during the year before being hired. An individual qualifies as a disconnected youth if they are between the ages of 16 and 25 and have not been regularly employed or attended school in the past 6 months. This proposal is estimated to cost $231 million over 10 years.

ASSISTANCE FOR FAMILIES & UNEMPLOYED WORKERS

"Making Work Pay" Tax Credit.

The bill would cut taxes for more than 95% of working families in the United States. For 2009 and 2010, the bill would provide a refundable tax credit of up to $400 for working individuals and $800 for working families. This tax credit would be calculated at a rate of 6.2% of earned income, and would phase out for taxpayers with adjusted gross income in excess of $75,000 ($150,000 for married couples filing jointly). Taxpayers can receive this benefit through a reduction in the amount of income tax that is withheld from their paychecks, or through claiming the credit on their tax returns. This proposal is estimated to cost $116.199 billion over 10 years.

Economic Recovery Payment to Recipients of Social Security, SSI, Railroad Retirement and Veterans Disability Compensation Benefits.

The bill would provide a one-time payment of $250 to retirees, disabled individuals and SSI recipients receiving benefits from the Social Security Administration, Railroad Retirement beneficiaries, and disabled veterans receiving benefits from the U.S. Department of Veterans Affairs. The one-time payment is a reduction to any allowable Making Work Pay credit. This proposal is estimated to cost $14.225 billion over 10 years.

Refundable Credit for Certain Federal and State Pensioners.

The bill would provide a one-time refundable tax credit of $250 in 2009 to certain government retirees who are not eligible for Social Security benefits. This one-time credit is a reduction to any allowable Making Work Pay credit. This proposal is estimated to cost $218 million over 10 years.

Increase in Earned Income Tax Credit.

The bill would temporarily increase the earned income tax credit for working families with three or more children. Under current law, working families with two or more children currently qualify for an earned income tax credit equal to forty percent (40%) of the family’s first $12,570 of earned income. This credit is subject to a phase-out for working families with adjusted gross income in excess of $16,420 ($19,540 for married couples filing jointly). The bill would increase the earned income tax credit to forty-five percent (45%) of the family’s first $12,570 of earned income for families with three or more children and would increase the beginning point of the phase-out range for all married couples filing a joint return (regardless of the number of children) by $1,880. This proposal is estimated to cost $4.663 billion over 10 years.

Increase Eligibility for the Refundable Portion of Child Credit.

The bill would increase the eligibility for the refundable child tax credit in 2009 and 2010. For 2008, the child tax credit is refundable to the extent of 15 percent of the taxpayer’s earned income in excess of $8,500. The bill would reduce this floor for 2009 and 2010 to $3,000. This proposal is estimated to cost $14.830 billion over 10 years.

Tax Credits for Energy-Efficient Improvements to Existing Homes.

The bill would extend the tax credits for improvements to energy-efficient existing homes through 2010. Under current law, individuals are allowed a tax credit equal to ten percent (10%) of the amount paid or incurred by the taxpayer for qualified energy efficiency improvements installed during the taxable year. This tax credit is capped at $50 for any advanced main air circulating fan, $150 for any qualified natural gas, propane, oil furnace or hot water boiler, and $300 for any item of energy-efficient building property. For 2009 and 2010, the bill would increase the amount of the tax credit to thirty percent (30%) of the amount paid or incurred by the taxpayer for qualified energy efficiency improvements during the taxable year. The bill would also eliminate the property-by-property dollar caps on this tax credit and provide an aggregate $1,500 cap on all property qualifying for the credit. The bill would update the energy-efficiency standards of the property qualifying for the credit. This proposal is estimated to cost $2.034 billion over 10 years.

Temporary suspension of taxation of unemployment benefits.

Under current law, all federal unemployment benefits are subject to taxation. The average unemployment benefit is approximately $300 per month. The proposal temporarily suspends federal income tax on the first $2,400 of unemployment benefits per recipient. Any unemployment benefits over $2,400 will be subject to federal income tax. This proposal is in effect for taxable year 2009. This proposal is estimated to cost $4.740 billion over 10 years.
Increase in Unemployment Compensation Benefits. The bill increases unemployment weekly benefits by an additional $25 through 2009. This provision is estimated to cost $8.8 billion.

Extension of Emergency Unemployment Compensation.

Through December 31, 2009, the bill continues the Emergency Unemployment Compensation program, which provides up to 33 weeks of extended unemployment benefits to workers exhausting their regular benefits. This provision is estimated to cost $26.96 billion.

Premium Subsidies for COBRA Continuation Coverage for Unemployed Workers.

Recession-related job loss threatens health coverage for many families. To help people maintain coverage, the bill provides a 65% subsidy for COBRA continuation premiums for up to 9 months for workers who have been involuntarily terminated, and for their families. This subsidy also applies to health care continuation coverage if required by states for small employers. With COBRA premiums averaging more than $1000 a month, this assistance is vitally important. To qualify for premium assistance, a worker must be involuntarily terminated between September 1, 2008 and December 31, 2009. The subsidy would terminate upon offer of any new employer-sponsored health care coverage or Medicare eligibility. Workers who were involuntarily terminated between September 1, 2008 and enactment, but failed to initially elect COBRA because it was unaffordable, would be given an additional 60 days to elect COBRA and receive the subsidy. To ensure that this assistance is targeted at workers who are most in need, participants must attest that their same year income will not exceed $125,000 for individuals and $250,000 for families. The Joint Committee on Taxation estimates that this provision would help 7 million people maintain their health insurance by providing a vital bridge for workers who have been forced out of their jobs in this recession. This provision is estimated to cost $24.7 billion.

FAILURE TO PAY CHILD SUPPORT NOW A CRIME IN NEW YORK

2008-11-11T22:44:00.000-08:00

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

2008-07-31T21:49:00.000-07:00

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/

CUSTODY DISPUTES - CHILDREN's BILL OF RIGHTS

2007-06-24T21:02:00.000-07:00

In our practice, we repeatedly see divorcing parents take extremely destructive, hurtful and even downright stupid actions in custody/visitation disputes.

These parents, who often are hell bent on "getting even" with their spouse, sometimes do and say the most outrageous things in the name of revenge, and confuse and emotionally damage their children in the process.

Divorce is certainly hard enough on adults. For children, it can be devastating. Their worlds are turned upside down by the breakdown of their household. This upheaval can be made many times worse by the venomous animosity and destructive actions they sometimes witness by their parents.

We frequently consult with adults who vividly remember how a divorcing parent behaved during a divorce case when that adult was a child.

Some of these adults have been psychologically traumatized for a lifetime by what they saw or heard. They often tell us that they wish their parents had just "settled it" like adults, and lament how their parents acted like spoiled children themselves, while ignoring the fact that everything said and done during this difficult time had a magnified impact on them as youngsters.

In the spirit of reminding those involved in divorce disputes involving children that it is their responsbility to act like mature, responsible adults to protect the most vulnerable parties to a divorce litigation ---- their precious children -----, we reprint here a copy of the "Children's Bill of Rights", which is not a legal doctrine or enforceable set of rules, but a common sense reminder of what a parent should be doing vis-a-vis a child when custody & visitation disputes arise.

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Children's Bill of Rights

We the children of the divorcing parents, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish these Bill Of Rights for all children.

The right not to be asked to "choose sides" or be put in a situation where I would have to take sides between my parents.

The right to be treated as a person and not as a pawn, possession or a negotiating chip.

The right to freely and privately communicate with both parents.

The right not to be asked questions by one parent about the other.

The right not to be a messenger.

The right to express my feelings.

The right to adequate visitation with the non-custodial parent which will best serve my needs and wishes.

The right to love and have a relationship with both parents without being made to feel guilty.

The right not to hear either parent say anything bad about the other.

The right to the same educational opportunities and economic support that I would have had if my parents did not divorce.

The right to have what is in my best interest protected at all times.

The right to maintain my status as a child and not to take on adult responsibilities for the sake of the parent's well being.

The right to request my parents seek appropriate emotional and social support when needed.

The right to expect consistent parenting at a time when little in my life seems constant or secure.

The right to expect healthy relationship modeling, despite the recent events.

The right to expect the utmost support when taking the time and steps needed to secure a healthy adjustment to the current situation.
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If you are fighting with your spouse about your children, please reread this, and then do it again.

These common sense reminders are too often cast aside during the emotional turmoil involved in divorce cases.

You are the adult. Your children did not ask for a divorce from either parent. Your children will remember and be forever impacted by how you conduct yourself. Keep this in mind when you are dealing with your spouse on child related issues.
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Robert G. McDermott
McDermott Law Offices
350 Motor Parkway, Suite 200
Hauppauge, New York 11788
Tel. 631-414-0094
Fax 631-414-0097
E-mail: bob@mcdermottlaw.com
Internet: www.mcdermottlaw.com

NEW YORK's HOME EQUITY THEFT PREVENTION ACT - FEB 1, 2007

2007-03-05T15:38:00.000-08:00

New York has enacted The Home Equity Theft Prevention Act effective February 1, 2007. The Act creates two new statutorty provisions: Real Property Actions & Proceedings Law Secs. 265-a and 1303, and amends Section 595-a of the Banking Law.

The new law requires require written disclosure to homeowners regarding the terms of the title transfer and provide a right to cancel the deal for five days after signing the contract. It would prohibit making false statements with intent to defraud the homeowner and would establish civil and criminal penalties for violating the law.

The Act protects a homeowner who has conveyed a deed to a predator (or anyone later identified to be engaged in the practice of deed stealing or equity theft). The Act requires foreclosing lenders to issue certain notices warning about scams.

Failure on the part of foreclosing lenders to properly advise distressed homeowners could result in the nullification of the foreclosure action. Any transfer of title in material violation of the Act is voidable, and can be rescinded by the Seller within two years of recording the deed.

The practical effect of how the implementation of this law will impact real estate brokers, lenders, mortgage brokers, purchasers of distressed properties and attorneys is unclear at this point.

However, the text of the Act will require major restructuring of legal language in certain real estate contracts and foreclosure action notices. The Act also imposes a requirement that certain contracts of sale be produced in both English and Spanish if Spanish is the primary language of the equity seller. On the bi-lingual contracts, an initial question is whose responsibility is it to determine if the equity seller uses Spanish as his or her primary language ?
Will it be necessary to produce copies in both languages to protect everyone else involved in the transaction ---- better safe than sorry ? Who is responsible to pay for the transalation of the contracts into Spanish ? The Act raises many questions that need to be resolved.

As our office learns more about the Act and its implications, we will provide additional updates.

NYS LAW UPDATE - NEW RIGHT TO DECIDE IN ADVANCE WHO WILL HANDLE YOUR FUNERAL/BURIAL ARRANGEMENTS

2006-09-01T22:43:00.000-07:00

Sept. 1, 2006 - A New York law recently taking effect now gives domestic partners the right to control the disposition of the remains of a decease partner when one of the partners dies (See New York's Public Health Law Sec. 4201, which is effective as of 8/2/06).

The new law places a domestic partner, just like a spouse, ahead of parents, children, or other blood relatives in terms of funeral decisions.

Under the new statute, top priority goes to the person designated in a written document signed by the deceased. A simple statutory form has been created to make such a written designation easy to accomplish.

This type of law is important not only to unmarried couples, but to all unmarried Americans. While it has always been assumed that a surviving spouse will control funeral arrangements, things can get difficult when a single person dies, and estranged relatives try to step ahead of a surviving partner in making final funeral related arrangements.

This new law gives people the right to decide, in advance, who will handle their funeral arrangements provided they execute the correct paperwork in advance.

Please call us if you would like to discuss this new law and its place in your personal financial and estate planning.

Robert G. McDermott, Esq.
McDermott Law Offices
48 S. Service Road, Suite 102
Melville, New York 11747
Tel. 631-414-0094
Fax 631-414-0098
E-mail: bob@mcdermottlaw.com
Internet: www.mcdermottlaw.com

NYS LAW UPDATE - TERMINATION OF PARENTAL RIGHTS TERMINATES INHERITANCE RIGHT OF PARENT

2006-08-23T08:15:00.000-07:00

A Parent Who Loses Rights to Child Also Loses Inheritance Right in NY

On July 26, 2006 Governor Pataki signed into law (chapter 285) a new EPTL, 4-1.4 .

This new law provides that a parent whose parental rights to a child were terminated under Social Services Law § 384 (b) is disqualified from sharing in intestacy in any distributive share of the child’s estate (a person who dies in intestacy has no will, and his or her relatives identified under ETPL 4-1.1 share in that deceased person's estate).

The effect of this new law is to prevent a parent who was found to have abused a child from sharing in that child’s estate. The statute continues to provide for a parent’s disqualification where the parent is found to have abandoned or failed to support the child during his or her minority.

Robert G. McDermott, Esq.
McDermott Law Offices
48 S. Service Road, Suite 102
Melville, New York 11747
Tel. 631-414-0094
Fax 631-414-0098
E-mail: bob@mcdermottlaw.com
Internet: www.mcdermottlaw.com

WHAT DO I NEED TO KNOW TO DO TO A WILL AND PLAN MY ESTATE

2006-03-30T15:26:00.000-08:00

Legal News

Estate Planning

"What do I need to know to do a Will and plan my estate ?"

This is a question we hear regularly from clients. In order to assist you in addressing this question for yourself, here are some of the important basics for you to know:
Your Last Will and Testament ("Will") is a legal document that sets forth, in detail, what is to happen to your property after you die.

Your Will controls what happens to your probate estate. All property owned solely in your own name, plus any and all other property interests that do not pass to somebody else by "operation of law" are included in your probate estate, and are distributed under the terms of your Will.
If an asset is held jointly with right of survivorship (for example, a house that is held jointly with right of survivorship, or a joint bank account) the survivor gets 100% ownership at the very moment of the other owner?s death. Also, if you name a designated beneficiary of an asset (for example, a beneficiary of a life insurance or pension death benefit), that designated beneficiary will inherit the asset immediately at the owner?s death.

An asset that passes by "operation of state law" is not passed through the probate estate and is therefore not controlled by the Will.

However, all assets in which the deceased person had an interest are part of the taxable estate. There is a big distinction between one's probate estate and taxable estate. Avoiding probate does not mean avoiding taxes, and specialized estate tax planning, which is beyond the scope of this basic summary, can be accomplished with the help of an experienced estate planning attorney familiar with federal estate tax law.

If you die without a Will, your assets will be distributed among the persons (usually one or more family members) as dictated by the intestacy law in your state. You may be surprised to learn that in New York, and many other states, your surviving spouse will not automatically inherit your assets through intestacy if you have children.

If you die intestate, the court will choose the person responsible for wrapping up your affairs. This person is called an Administrator, and might not be the person you would have wanted. Sadly, family bickering often develops over who should be appointed by the judge. Sometimes, a public official called the Public Administrator is appointed, and must be paid with estate funds.
Here are some important components and issues to consider for a basic Will designed for a husband and wife with small children, and an estate that is less than the federal estate tax limit so that complex estate tax reduction planning is not required:

1. Naming of Executor. The Executor is the person who is appointed to wind up your affairs, including paying all final expenses, making sure court papers are filed, taxes paid, and money distributed as set forth in the Will. Usually the spouse is named, but there should be an alternate, too.

2. Payment of debts and taxes. Most wills contain a clause spelling out that debts and taxes are to be satisfied, and how these costs are to be shared among the estate beneficiaries.

3. Specific bequests of tangible property or cash can be made. For example, "My beloved cousin John Smith is hereby given, devised and bequeathed the sum of $ 10,000.00"

4. Disposition of the remainder (or residue) of property. This consists of everything that remains after steps 1 through 3, above. Usually, people want it this way: "If I die first, everything goes to my spouse. If my spouse has already died, all to the children, in equal shares, per stirpes." (Latin for, "If a child dies before the parent, that child?s children split the share.")

5. When there are minor children, a Will should always be used to name a guardian(s) of their persons and property. Alternates should also be named. This should not be done any other way. Of course, if there is a surviving parent, he/she automatically is guardian, if living in the same household. Be aware, too, that the court will probably have to approve the proposed guardian eventually, even if named in a Will (unless he/she is the surviving parent, in the same household). The purpose of the Will in this regard, though, is to guide the court, and to avoid family arguments over who is better qualified.

The person you choose as guardian is the person who will raise your children. It is generally suggested that they share your views, moral and religious beliefs so that your children are raised in a manner of which you would approve.
The guardian will also control any property received by your children from sources outside your estate (or from your estate if you do not name a trustee as discussed in #6 below).

6. A trustee should be appointed for children who inherit money from your estae before they are of age.

Consider carefully, however, the appropriateness of leaving money or other property outright to young children, even if a qualified guardian is available. Guardianship is a cumbersome way to manage financial affairs. Periodic reports and accounting to the court are required, and flexibility is limited by law. More important, for many, is that guardianship ends at the age of legal adulthood (usually 18, sometimes 21).

From then on, any property left to a child is exclusively owned and controlled by him/her. Most people recognize that it is bad to die intestate, unintentionally leaving half (or more) of everything to small children. Sometimes they forget it might be no better to die with a Will, if it allows the same result, i.e., leaving property to minor children.

If significant assets are to be committed immediately at death to the direct benefit of your children (as opposed to their surviving parent), a Trust is the way to go. A trust can keep your estate from eventually falling into the hands of inexperienced and immature teenagers, if you have left your children money and die while they are young.

A properly drafted trust can put the trustee, a person you choose to control the money until the child reaches a designated age, in the position of a "gatekeeper" who makes sure your youthful and inexperienced child is not left in control of a large sum of money after reaching 18 or 21 without appropriate financial supervision. A trust can defer the outright control until some later age, often 25, 30 or later, while still allowing the trustee to spend sums he or she deems appropriate for important expenses like education, healthcare, purchase of a home, etc.
The foregoing is merely a general overview of some of the principles involved in basic estate planning, and should not be construed as legal or tax advice for a specific situation.
Estate planning encompasses both property distribution planning, and estate tax reduction planning if your estate exceeds the federal estate tax exemption limit. Personal preferences, goals and psychological factors relative to estate planning should be considered before making a Will.

Preparation of a power of attorney and healthcare proxy and living will should also be considered when planning your estate. These documents allow you to appoint a competent and trusted person to handle your financial and medical affairs if you are too ill to speak for yourself. The unfortuate case of Terri Schiavo a few years ago reminds us just how important these planning tools can be. They allow you, not the courts, to decide who should speak for you.
It is important to explore the facts with competent legal counsel, and specific legal and tax advice should be sought prior to making any estate plan.

Robert G. McDermott, Esq.
McDermott Law Offices
48 S. Service Road, Suite 102
Melville, New York 11747
Tel. 631-414-0094
Fax 631-414-0098
E-mail: bob@mcdermottlaw.com
Internet: www.mcdermottlaw.com

Copyright Robert G. McDermott - March 2006.

WELCOME TO THE MCDERMOTT LAW OFFICES BLOG

2006-01-27T12:14:00.000-08:00

Welcome to the McDermott Law Offices Legal Blog.

Here we post information on legal topics that we hope our clients, colleagues and the community will find to be of interest.

Please let us know if there are any topics you would like to see addressed on the McDermott Law Offices Legal Blog.

Thanks for visiting.

Robert G. McDermott, Esq.
McDermott Law Offices
48 S. Service Road, Suite 102
Melville, New York 11747
Tel. 631-414-0094
Fax 631-414-0098
E-mail: bob@mcdermottlaw.com
Internet: www.mcdermottlaw.com