The Latest News Family Lawyer

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 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, 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: May 19, 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” is actually someone who 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. This includes handling the issues of same sex unions and their resulting families, for which the traditional legal system is still adjusting. Trends in the field of family law also include mediation and 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. It is important to find an attorney that you are comfortable with but has training in these areas. More divorce attorneys are representing that they will follow a collaborative approach but do not truly understand the dynamics nor have they been trained in this discipline.

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.

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

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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 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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The Federal Defense of Marriage Act, usually called DOMA

Posted On: June 19, 2014

What are the Real Implications of the Supreme Court’s Ruling on DOMA?
The Federal Defense of Marriage Act, usually called DOMA, is a multi-section law enacted in 1996 permitting states to make legal decisions concerning same-sex marriages. Section 3 of DOMA related specifically to federal benefits and until June of 2013, barred same-sex spouses from receiving the benefits for which other married couples qualified. By striking down DOMA, the Court ordered the federal government to leave the definition of marriage to the States. The Supreme Court ruling was in response to a specific case, but its implications were a major step toward equalizing the availability of federal benefits. However, there are still challenges for same-sex married couples depending on the state in which they live and whether or not that state recognizes their marriage. Many couples have traveled out of state to be married, but continue to live in states where same-sex marriage is not allowed. According to the Human Rights Campaign there are 1,138 benefits, rights, and protections provided on the basis of marital status in federal law. Many federal agencies determine whether or not spouses are entitled to benefits based on whether their state of residence recognizes the couple as legally married.

Tax Implications
The biggest tax implication of the Supreme Court’s DOMA decision is that the marital deduction now applies to same-sex couples, and spouses are permitted to transfer assets to each other tax-free when they are living or after they die. Same-sex couples are also entitled to file a joint tax return. Couples might also be permitted to amend previous tax returns within the statute of limitations. These changes mean same-sex couples are also vulnerable to the tax penalties that come with marriage. Higher tax rates kick in lower for married couples than they do for singles. Additionally, issues might arise due to recent tax changes regarding the Affordable Care Act, changes to the maximum tax rates under the fiscal cliff deal, and the recent resuscitation of the limitation on personal and itemized deductions of high earners. Now, same-sex couples will struggle with the same marriage tax penalty pitfalls as male-female couples. It is important to consult with an experienced accountant to better understand the tax implications benefits and pitfalls.

Implications for Employers
Additionally, federal benefits that apply to an employee’s spouse now extend to same-sex spouses in marriages that are legally recognized. Employers employing people who are part of same-sex marriages will need to evaluate their current retirement benefits, health benefits, and family leave programs. Federal tax law now treats health benefits for same-sex couples the same as the employee’s health insurance – meaning it is tax-free and no longer requires payroll tax deductions. It might also be necessary for employees to change beneficiaries since legal spouses are default beneficiaries. COBRA and family medical leave benefits also now extend to same-sex couples. There are state-to-state variations, so it is important for same-sex couples and those working with same-sex couples to ensure they fully understand the effects of the new law. If you have questions, consult an attorney familiar with DOMA regulations.

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

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Protecting Children in Separations and Divorce

Posted On: January 19, 2015

According to the US Census Bureau, couples marrying today have a 50% chance of their marriage ending in divorce. Many of these marriages are between parents and 40% of children will be affected by divorce before reaching adulthood.

When couples with children divorce, their first priority is often the well-being of the children. Sometimes, unhappy couples even choose to stay together because they believe it is the best thing for their children. When a separation or divorce is the best option for the family, effort should be made to protect the most vulnerable members of the family. What can you do to protect your children when you separate from or divorce your partner?

Transition Phase
The process of divorce is stressful for the entire family, but it can be easier if it is handled well. Couples have the option of working together to alter their existing relationship. The inclination during a divorce is to “get rid of your partner” or pay him or her back for any perceived wrongs. Unfortunately, especially for the children, this causes more harm than good in the long run.

During your divorce or separation, do your best to protect your children by working with your soon-to-be-ex to devise an arrangement that is best for everyone. Try to be fair and try not to let your emotional wounds affect your child’s relationship with his or her parent. When possible, avoid a lengthy legal battle.

Custody and Visitation
Protecting your child from harm should be your first priority. If your soon-to-be-former partner has behaved in a manner that put your child at risk, you have every right to protect your child in the future. However, there is a difference between a child being at risk and a child spending time with someone whom you are upset or angry with. Just because your partner hurt you should not mean your child will benefit from estrangement from his or her parent. Do not put your child in the middle of any dispute or discord with your spouse or partner.

Working together to create a custody or visitation arrangement that helps your child feel comfortable and supported is the healthiest type of transition for a child. If he or she is old enough to discuss custody or visitation, take his or her feelings into account when creating an arrangement. Ideally, children will feel just as loved and supported after a separation or divorce as they did when the family was intact.

Finally, speak with your child about responsibility. It is important for children to understand they did nothing to cause the break up of the family.

No matter your personal situation, your children should be protected from the changes in your relationship with your significant other. Working with an experienced family lawyer helps you transition to separation or divorce with as little turmoil as possible. Share your concerns about your child’s safety and well-being with your attorney and he or she can help you determine the steps to take to protect your child.

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.smartstepfamilies.com/view/statistics

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