The Latest News 2014

The Law and Stepparents

Posted On: December 11, 2014

According to the Pew Research Center, there are about 30 million stepparents in the United States. Almost half of all adults have a step relationship of some kind. Stepparents and their stepchildren have special relationships. Sometimes a child is no more than “my partner’s kid,” but in many cases, stepparents and children bond as much as a child would with his or her birth-parents.

What should stepparents know about their rights if their relationship does not last?

Standing
One of the most important things about stepparents and the law is standing. Standing refers to the right of a person to seek legal intervention, in this case the rights of a non-biological parent, several factors are taken into account including:

  • The stepparent’s participation in the child’s life
  • The length of time the stepparent was in the child’s life
  • The emotional bond between the stepparent and child, and how ending the relationship would affect the child
  • The amount of financial support the stepparent provided

Being granted visitation, and even more so custody, when you are a stepparent is rare. It is becoming increasingly more frequent for stepparents to be granted visitation rights with stepchildren because blended families are more common, but it is still considered out of the norm and requires a great deal of effort on the part of the stepparent.

At present, about half of the states have laws authorizing stepparent visitation. Ten additional states expressly grant stepparents rights to seek visitation. And then thirteen more grant interested third parties rights to request visitation and categorize stepparents with these people. In the future, laws will likely address both stepparent custody and visitation with greater vigor.

Considering a Child’s Best Interest
As with all custody and visitation situations, the courts use the child’s best interest to guide decisions. A stepparent or any interested third party is more likely to be granted time with a child if he or she played a significant role in the child’s life prior to the request for visitation. Obviously, courts will show less sympathy for stepparents making bad life decisions that affect children more than in cases of birth parent in the same situation.

If you are the stepparent of a child and you are concerned changes in your relationship with your stepchild’s parent will alter your relationship with the child, you should speak to an attorney. He or she can help you determine your rights and will fight on your behalf so the court understands your role in the child’s life.

Have questions about Family Law or need help in this area, then feel free contact attorney SPIRIO at 631-277-8844.

Source:
http://www.smartstepfamilies.com/view/statistics

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The Law and Grandparents

Posted On: November 24, 2014

There are more than 70 million grandparents in the United States. According to the US Census Bureau’s American Community Survey, more than half of these people believe they would do a better job raising their grandchildren than they did raising their own children. Thirteen percent of these grandparents are raising their grandchildren and serve as the primary caregiver for their children’s children.

In order for grandparents to receive custody and even visitation time with their grandchildren, certain conditions must apply. These conditions vary from state to state, but in general, the best interest of the child is the most important factor.

If custody of a child is an issue, courts typically attempt to award it to the mother. If the mother is unavailable or unfit, the next person to be awarded custody is the father. If the father is not an option, grandparents or other blood relations are typically given next priority. In cases where grandparents feel the child’s parents are unfit, the burden of proof is on them to establish the parent is unfit and in most situations, it is extremely difficult to do so. If neglect is found, the court may remove a child from the custody of the parents. Grandparents would then have to qualify for custody. Again the best interest of the child is the Court’s standard. In many instances the Court may appoint a Law Guardian, a legal representative appointed to represent the child’s interests in the proceeding. The Law Guardian will interview and visit all parties home and prepare a report for the Court.

Receiving visitation as a grandparent is easier than receiving custody. Courts take various factors into consideration when determining whether or not to grant grandparents legal visitation, including:

  • Needs of the child, including his or her physical and emotional health
  • Capability of the grandparents to meet the needs of the child
  • Distance between the child’s primary residence and that of the grandparent(s)
  • Wishes of the parent(s)
  • Wishes of the child, if the child is capable of making decisions on his or her own
  • Strength of the relationship between the grandparent(s) and grandchild
  • Length of the relationship between the grandparent(s) and grandchild
  • Evidence of abuse or neglect
  • Ability of the grandparent(s) to provide love, affection, and contact with the child

Ideally, parents are able to work out an arrangement that includes time with grandparents interested in being a part of a child’s life, even after the child’s parents have separated or divorced. However, this is not always the case, especially if the parent’s relationship does not end amicably or the relationship with in-laws was strained when the couple was together. This can be especially problematic in non-traditional families where grandparents are not accepting of life choices, but still wish to play a role in a grandchild’s life.

If you are a grandparent who wants to continue a relationship with a grandchild once his or her parents separate or you are the parent of a child whose grandparents are threatening legal action, it is important to speak with a family attorney. He or she can explain to you the rights of grandparents and determine what action to take to best protect your family.

If you have a legal situation concerning your family and are in need of help, call 631-277-8844 today for a no obligation initial consultation and personal service.

Source:
http://www.statisticbrain.com/grandparent-statistics/

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The Law, Single or Divorced Parents, Custody and The Children

Posted On: November 05, 2014

Families come in all shapes and sizes. More and more these days, children and families are challenged with adjusting to transitions. According to the US Census Bureau, about half of all first marriages end in divorce and nearly one million children are affected each year by divorce. During the 2000s, single parent families rose to an all-time high of nearly 40%*.

NYS Laws vary regarding single and divorced parent families. What does that mean and what rights do single or divorced parents have? Custody issues can be complicated when parents of a child were never or are no longer married. Issues affecting single or divorced parents include:

Custody and Visitation
When parents were never legally married, there is no assumption of paternity for single fathers. If a single father wants sole or joint custody of his child, he must file a Voluntary Acknowledgement of Custody and/or take a DNA test. This makes it possible for him to pursue sole or shared custody of the child. It will also make him financially responsible for this child, regardless of whether or not custody and visitation is granted.

When a child is adopted, both parents will need to show proof of their standing in their child’s life if the relationship ends and both want custody and/or visitation. As long as both parents played a significant role in the care and upbringing of the adopted child prior to the separation or divorce, it will be treated similarly to if the child were biologically their own. For Gay and Lesbian couples, it is imperative that both parents have been legally recognized by a second parent adoption and/or joint adoption.

When parents were married and are divorcing, the custody and visitation agreement is part of the divorce proceedings. If parents are able to work out a custody and visitation arrangement on their own, the courts just need to approve this. If they are unable to agree on an arrangement, the court will make these decisions based on what it feels is in the best interests of the child.

Child Support
Children born to a married couple are deemed the child of those parents. This premise has yet to be put to the test for Lesbian couples. For an unmarried parent, in order for a parent to receive child support for the care of a child, he or she must prove the other parent is responsible for the child. This is done either through paternity testing or by demonstrating a parent’s role in the adoption of the child.

Best Interest of the Child
Above all else, regardless of the relationship of parents, the best interest of the child will be the standard of review used by the Courts. When parents are able to do this on their own, the court simply oversees their efforts and ensures the child is protected. If parents are unable to agree on the future of their child, family court will make a decision based on the needs and desires of the child. The wishes of the child however are not determinative and often not truly considered unless the child is fourteen or older.

If you are the parent of a child and were never married to his or her mother or father, or you are in the process of a divorce, it is important to work with an experienced family law attorney. This ensures your role in your child’s life is protected, especially if you are part of a non-traditional family.

If you need help in this area or have questions feel free contact attorney Concetta Spirio at 631-277-8844

* www.smartstepfamilies.com/view/statistics

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What Exactly is a “Family” Lawyer?

Posted On: October 16, 2014

It might seem as if the term “family lawyer” would be used to describe an attorney who works for everyone in a family or a person who is a member of your family and happens to work as an attorney. Though these scenarios are possible, the term “family lawyer” refers to someone who actually specializes in family law. The field of family law relates to topics including divorce, custody, visitation rights, spousal and child support, division of assets in divorce, protection from abuse, and paternity issues.

Many family lawyers choose their field because they want to work with the “human side” of the law. It can be extremely challenging to practice family law because attorneys must connect with and support their clients during very emotional times in life. Family lawyers see people at their best and worst, and help these people transition through some of the most challenging phases of life. Despite its challenges, most family lawyers find a great deal of emotional reward in their work.

What Makes a Good Family Lawyer?
Like all attorneys, some family lawyers are more talented and successful than their peers. The best family lawyers have top-notch skills when it comes to negotiation and litigation. They must be good at time management and understand interpersonal communication. In addition to legal counsel, family lawyers often provide emotional support during a client’s most challenging life events. It also helps if a family attorney has an understanding of financial and real estate laws, though most attorneys have a network of expert resources at their disposal when questions arise.

As families continue to evolve, the practice of family law also changes. Trends in the field of family law include collaborative law, a practice that helps couples divorce and legally separate without traditional litigation. A family law attorney’s role is different in cases where collaborative law is used, as opposed to litigation. In some cases, the lawyer might even act as a mediator and work for both partners, as opposed to representing one or the other.

Nearly 50% of all first marriages end in divorce*. The odds are even greater for second and third marriages. Approximately 40% of all couples in the United States are step couples. The ongoing making and breaking of families creates complicated family ties and creates a need for legal protection as things change. Family lawyers provide the guidance and support these changing families need.

* http://www.smartstepfamilies.com/view/statistics

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The Law and Blended Families

Posted On: September 17, 2014

Blending families is always a challenge, but it is one that most agree is worth it. When families change and parents find new partners with which to share their life, it affects everyone involved. Children must adjust, relationships with former partners might change, and legal issues arise. The social, psychological, and economic challenges are enough to make anyone feel stress, but a little planning and support go a long way. Ultimately, your goal as a blended family is to protect your children, your new partner, and his or her children, and to blend your new family as seamlessly as possible.

What should you know about the legal issues blended families might encounter?

Your Children
One day your children will be entitled to an inheritance from you. Ensuring the assets you want them to have transfer without any legal challenges takes a bit of planning. It is important to speak to an attorney familiar with estate planning, so he or she can help you create a will that addresses these issues. In most cases, your partner or spouse becomes the beneficiary of a significant portion if not all of your estate by default, so if you would like to determine the distribution of your estate, you must take action to ensure this occurs.

Your New Partner
Most couples in blended families tend to combine their wealth. Assets obtained after marriage are in the names of both spouses and partners are listed as beneficiaries on retirement plans and life insurance policies. Keep in mind if you die before changing your beneficiaries and/or without having made specific arrangements regarding changes to your estate; your new spouse and your children could find they are accidentally disinherited. Further you could have a circumstance that your assets pass to your spouse and upon his or her death, those assets could pass to his or her children or even his or her new spouse, if there is a future marriage after you are gone. Chances are you want your new partner to inherit a portion of your estate and you want to protect him or her as much as your children. However, once your family is blended, it is very important you address specific issues concerning your estate. Assets will not automatically funnel to your children as they would if you were married to their mother or father.

Other Issues to Consider
In addition to updating your Will and beneficiaries on various items when your family blends, you will also want to consider a few other important factors. Both you and your new partner should discuss financial goals and make decisions about spending, investing, and saving. Establishing mutual financial goals is a great way to plan for the future and commit to the practical, financial aspect of your new relationship. Take his or her priorities into account when planning. If you both have children, create a fair plan that reiterates you are both ready and willing to provide for and protect your new family.

According to statistics from the US Census Bureau about one third of all marriages include at least one partner who was previously married. This means he or she might bring assets, retirement funds, and children to the new relationship.

If your relationships have led to a complicated family tree, take time to plan your estate and work with a professional who understands the complexities of a blended family.

If you need help in this area or have questions feel free contact attorney SPIRIO at 631-277-8844

Source:
http://www.census.gov/hhes/socdemo/marriage/data/census/index.html

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Dealing with Alternative Lifestyles in Marriage – LGBT and the Law

Posted On: August 14, 2014
Dealing with Alternative Lifestyles in
Marriage – LGBT and the Law.

In June of 2013, the US Supreme Court issued its decision in the case of the United States vs. Windsor, eliminating from the legal definition of marriage the phrase, “union between a man and a woman.” This ruling meant the widow in the case would not be required to pay $350,000 in federal taxes when her same-sex spouse died because the couple’s marriage was not considered legal in the United States.

The result of the ruling changed how the federal government views same-sex marriages and how laws affect these relationships.

What are some of the most notable aspects of LGBT marriages and the law?

The IRS Now Recognizes All Marriages
No matter whether a couple lives in a state with legalized same sex marriage or not, the IRS recognizes all marriages. The IRS now uses the location in which the marriage was legalized, as opposed to the state in which the tax filers live to determine whether or not a couple can file as married spouses. As long as a couple marries in a jurisdiction that recognizes same-sex marriage, they qualify for federal tax benefits.

The Federal Benefits Now Afforded To Same-Sex Spouses MAY NOT Apply In All States
Despite the federal government recognition of same-sex marriages, the Social Security Administration requires same-sex couples to live in states in which their marriage is legal in order to obtain SS benefits. Spouses living in non-recognition states are not eligible for social security benefits based on their spouse’s work record and will also not be eligible for Medicaid and Supplemental Security Income, Medicare, Family Medical Leave, or Bankruptcy filings.

This does not mean same-sex couples are not entitled to these benefits at all; it simply means they must reside in a state that recognizes their marriage as legal.

Similarly, employment benefits available with a National Corporation may not be the same in states wherein Same Sex Marriages are not recognized.

Additionally, parental rights of a non-biological parent who has not proceeded with a Second Parent adoption may not be recognized in states that do not recognize same sex marriages.

What Happens if the Marriage Ends?
A 2010 analysis comparing divorce rates in states in which same-sex marriage was legal showed a statistically significant relationship between the state laws governing marriage and the decrease in incidence of divorce. There is debate over the various causes for the decrease, but despite there being less risk for divorce, it unfortunately still occurs across heterosexual and same-sex marriage.

Divorce rights for spouses vary from state to state. Further complicating matters, some same-sex couples registered in more than one location to enter into a civil union and/or to marry. Same-sex couples must make sure they end all registrations no matter their location and regardless whether the law changed from the time of registration.

Legally, the situation can become extremely complicated. You might also have more than one option when it comes to ending a same-sex marriage, so it is important to talk to a divorce attorney familiar with the laws in each state, as well as federally.

Some states require that dissolution of the union created in their state occur within their state. This also may require a term of residency in the state where the union was created as a prerequisite to the dissolution within the state.

Finally, keep in mind laws regarding same-sex marriage continue to change rapidly. Before registering to marry, marrying, or deciding to end a same-sex marriage, it is important to understand the various implications, so you know your rights and you can make sure you and your spouse are within the letter of the law.

If you need help in this area or have questions feel free contact attorney SPIRIO at 631-277-8844

Source:
http://www.usnews.com/news/articles/2011/07/06/divorce-rates-lower-in-states-with-same-sex-marriage

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What You Need to Know when Buying or Selling Real Estate as a Married Couple

Posted On: July 31, 2014

Buying and selling real estate is one of the most common things people do as married couples. Families change over the years and as they expand and contract, couples move from one house to the next. They might buy or sell property together as a financial investment or even purchase a second home with plans for the future. In order for buying and selling real estate to go smoothly for married couples, there are a few things they should know:

Financial Pre-Approval is Important
If you are buying real estate, receiving pre-approval for a mortgage is essential. Even if the exact amount you end up borrowing is different than your pre-approval amount, having the “go-ahead” from a mortgage company speeds up the process once you are ready to buy. It also shows sellers you are serious about buying and will be able to make a solid offer if you are interested in their home.

Credit Matters
As part of a married couple, there are several things you should know about credit scores that are different from when you were single. Even after you are married, you will still have an individual credit score. However, both will be taken into account when purchasing real estate.

A couple with two good credit scores is more likely to qualify for a lower interest rate mortgage than a couple with one low score and one high or two low scores. If you have a good credit score and your spouse’s is low, it is possible for you to apply for a mortgage in only your name, but then only your income is taken into account. This means the mortgage amount for which you will be approved is much lower because your spouse’s income is not considered.

Selling Real Estate Requires the Approval of Both Owners
When the time comes to sell real estate that is jointly owned, both owners must approve the sale. For example, if you want to sell your home and your spouse is unwilling to sign a listing contract, you cannot legally make the sale. Typically, this is not a problem for married couples, but it can cause issues when couples are separated or planning to divorce.

Furthermore, tax issues arise when property is sold by a married couple, as opposed to a single. For example, IRS Code section 121 allows homeowners to exempt the first $250,000 of capital gains when selling their primary home, but that amount is doubled to $500,000 when the sellers are married. Tax issues change somewhat frequently and have drastically changed in recent years, so it is important to consult a tax expert if you have recently sold your home.

Buying and selling real estate are important decisions and have a major effect on your financial status. If you and your spouse are thinking about buying or selling property, speak with an attorney or real estate professional before moving forward.

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The Benefits of Mediation and Collaborative Mediation and the Differences between the Two

Posted On: July 18, 2014

Alternative Dispute Resolution (ADR) is quickly becoming one of the most popular methods for resolving legal disputes. Instead of pursuing a lengthy trial that is expensive and can result in an outcome with which nobody is happy, ADR offers more efficient options for settling disputes. One of the more common ADR methods is mediation.

What is Mediation?
Mediation is a way to settle a dispute without litigation. It involves the disputing parties and a neutral third-party mediator. Often, disputes are settled in as little as a single mediation session, which might last only a few hours. Disputing parties have complete control of the resolution and the mediator is there only to ensure the resolution is legal and that the parties use effective communication and remain focused on resolution. Essentially, the mediator facilitates discussion so disputing parties can resolve a problem. If disputing parties believe they will need additional support during the mediating process, they have the option of choosing collaborative mediation. Like basic mediation, this process is efficient and keeps the control in the hands of the disputing parties, but it provides them with the support of a team of experts that offer counsel during the process. Each party can have his or her own legal representation, and other professional experts might also play a role in the process, including those familiar with financial, psychological, or real estate issues.

What are the Benefits of Collaborative Mediation?
In general, mediation is beneficial because it saves time and money. Collaborative mediation offers these benefits, but it is a better solution when cases are complex or when disputing parties are uncomfortable making legal decisions without sufficient resources. Collaborative mediation is solution oriented with the party’s needs and desires dictating a resolution. Although the parties may be represented by attorneys this is not an adversarial process but again a solution oriented process. For instance, if decisions are to be made during mediation about splitting marital property and the mediator is not an expert in real estate law, collaborative mediation allows an attorney or a real estate expert to provide information during the mediation process. Collaborative mediation is especially helpful during divorce proceedings because there are so many sensitive issues at play. Approximately 40% of divorcing couples are parents and just as concerned about the well-being of their children, as they are for their own. As parents you will always be connected in some fashion to the father or mother of your children. Both Mediation and Collaborative mediation help salvage a working relationship between the parties and provide the tools to go forward in the future. Divorce proceedings include a variety of issues and having expert advice from various fields helps make the decision-making process easier. According to Divorce Magazine, the average length of divorce proceedings is one year. Mediation can shorten this transition period, making it possible for families to move forward and begin their new lives. If you are involved in a legal dispute and you believe traditional litigation will do more harm than good, mediation is an option. Collaborative mediation provides a way to settle a dispute efficiently, but without the uncertainty you might feel using basic mediation.

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