Do you have questions about any of the areas of law that we practice? We've compiled some of the most commonly asked questions and provided the answers. Want to know more? No problem. Contact us.
TABLE OF CONTENTS
+Divorce/Matrimonial
Q: How do I start a divorce?
A: A divorce is commenced through the filing of a Summons for a Divorce Action and purchase of an Index Number with the County Clerk. This document initiates all divorce proceedings and sets forth the grounds for your divorce. In New York State, the current Court filing fee for a Summons of this nature is $210 and assigns an index number to your case.
Q: What Are The Legal Grounds For Divorce In New York State?
A: New York recently enacted a No-Fault divorce law, otherwise known as irretrievable breakdown, that has changed the landscape of divorce in the State. Under this approach, a couple is allowed to effectively attain a divorce by alleging an irretrievable breakdown of their marriage. Additionally, the following Fault-based legal grounds are also recognized by the State of New York for purposes of obtaining a divorce Judgment: (i) Cruel and Inhuman Treatment, (ii) Abandonment, (iii) Imprisonment, and (iv) Adultery. Our New York divorce attorneys are ready to discuss your case. Let's talk.
Q: How long does it take to obtain a divorce?
A: Every divorce is different. The duration of any divorce is entirely based on the circumstances of your case. Though there is no sole determining factor, there are a host of issues that must be taken into consideration before being able to better estimate a potential timeframe.
However, a true uncontested divorce in New York is typically the fastest method of obtaining a divorce judgment. If you would like to inquire whether you are eligible, speak to our New York divorce attorneys.
Ask about our Lightning Divorce package when speaking with us.
Q: When is a settlement appropriate and how is it achieved?
A: Settlement is appropriate when the parties involved are amicable, fair toward one another, and have mutually decided how they would like to dissolve their marriage. While not always easily reached - given the circumstances of each case - settlements are encouraged as they expedite the divorce process and leave it up to the divorcing parties, rather than the courts, to control their own fate and future. A settlement is achieved by the means of agreement that is drafted and prepared by our divorce attorneys.
Q: What are the most important issues that arise and are dealt with in a divorce proceeding?
A: Divorce, in and of itself, is a very tedious process that inevitably implicates many aspects of a person's life. Some of the most important issues that are incident to many divorce proceedings, include but are not limited to, child custody and visitation, child support, equitable distribution of marital assets, and spousal support and maintenance. The complexity of each issue depends on the facts surrounding each case.
Q: What is equitable distribution?
A: Unlike some other states, New York recognizes the division of marital property in the form of equitable distribution. However, 'equitable' does not necessarily mean equal. For these reasons, among others, it is imperative that if you or your spouse is contemplating a divorce or ready to initiate a proceeding, you should contact a New York divorce and family attorney to evaluate your case.
Q: What is the difference between a prenuptial and a postnuptial agreement"
A: A 'prenuptial agreement' (aka: antenuptial agreement) is an agreement made and entered into by a couple that intend to marry, prior to their marriage. Essentially, a prenuptial agreement lays out the terms that the couple shall be bound by in the event of a divorce or other dissolution of marriage. The provisions typically specify an agreement regarding the division of property, spousal support, etc.
A 'postnuptial agreement' is an agreement with the same or similar terms as a prenuptial agreement, however it is entered into after the couple has been married.
Q: Should we consider getting a prenuptial agreement/postnuptial agreement?
A: Couples should certainly consider enlisting the services of a divorce lawyer to help them prepare a prenuptial/postnuptial agreement. Life is unpredictable and while no couple marries with the expectation of divorce, these agreements should not be construed as facilitative of divorce. Instead, the purpose of these agreements is to ensure that no issue will interfere with your marriage and that all issues of any importance to the couple have already been resolved.
Q: I was married outside the State of New York and/or outside the United States, and would like to obtain a divorce in New York. Is this possible?
A: Absolutely. Not only can a divorce be obtained for a marriage that was issued in a different U.S. State, but a divorce Judgment can be obtained for a marriage that was issued in an entirely different country. Our New York divorce team is happy to explain the process and determine whether you qualify for a divorce under New York Divorce Law.
Q: Can I obtain a divorce if I do not know where my spouse is located?
A: Yes. The NY State legislature has recognized that this has become an increasingly common problem over the years. Therefore, there are solutions. A divorce lawyer can help you obtain a divorce judgment if your spouse cannot be located (whether or not your spouse is in NY state or not).
Q: Do I need a lawyer to handle my divorce?
A: Hiring an attorney for your divorce may be the difference between obtaining favorable results in your divorce and not. Whether uncontested or contested, the lawyers at Geller Law provide tailored consultation and representation to each client throughout their divorce.
Have more questions about a potential divorce or matrimonial issue? We're ready to discuss.
+Family Law
Q: What is an Order of Protection?
A: An Order of Protection is a court-issued document or Order that prohibits someone from doing certain things or engaging in certain behavior. As an example, the Order may prohibit an individual from making any contact with you (including visiting your residence, job, place of education), stay away from your children, direct them to move out of your home, follow custody orders, pay child support, etc.
Q: How do I get an Order of Protection?
A: An Order of Protection is attained through the New York State Family Court. An Order of Protection is a very serious application and is often the only way a family member can obtain fast protection when their physical well-being is put in question. For this reason, it is important to ensure that you enlist the services of an attorney at Geller Law to begin this process immediately.
Q: Who can I get an Order of Protection against? Do I have to be married to that person?
A: No, you don't have to married to the person you are seeking to get the Order of Protection against. New York State Family Court will issue an Order of Protection supported by a meritorious claim if you fall within one of the following relationships:
- you are related to the respondent by blood or marriage;
- you are or were legally married to the respondent;
- you have a child with the respondent; OR
- you are or were in an intimate relationship with the respondent.
Q: What happens if I someone violates an Order of Protection?
A: Violating an Order of Protection - whether a temporary or final Order - is a crime. If the person subject to the Order or Protection violates the Order, then you may call 911. This will most like result in an arrest of that individual. However, you're also entitled to file a Violation of Order Petition in Family Court. Unlike the former, filing this petition will probably not result in an arrest.
Q: What other matters are resolved in Family Court?
A: While divorces are handled in Supreme Court, most of the other family matters are resolved in Family Court. Thus, Family Court will typically handle cases involving child support, custody and visitation, enforcement of prior family-based agreements, family offenses, orders of protection and paternity issues.
Q: Can I obtain child support if I am not married to the child(ren)'s biological non-custodial parent?
A: Depending on the circumstances of your case this is certainly an attainable position. However, it is important to contact a lawyer at Geller Law so that we can evaluate the facts of your case and provide you with an in-depth approach geared toward obtaining a child support order.
Q. How old does a child have to be before child support ends?
A. In most cases, 21. However, if the child is under the age of 21 and is either married, self-supporting, or has joined the military - you will no longer be obligated to pay child support.
Q. Is there any other reason why child support might end?
A. If the child is between the ages of 17 and 21 and they have left home and refuses to abide by their parents reasonable instructions or commands - this may qualified as "emancipated" by the Court. If the event of emancipation, the parent may be relieved of their obligation to pay child support.
+Wills/Probate
Q: What is a Will?
A: A will (or 'Testament' or 'Last Will and Testament') is a legal document that, upon your death, outlines a plan with respect to:
Who will receive your assets and property;
Designate the guardian of your children and pets;
Determine how your debts and taxes will be taken care of;
Who will manage your estate and the distribute your assets to the beneficiaries named in the will. (aka: an Executor or Executrix).
Q: What if I need to make changes? Can I make changes or revoke it completely?
A: Yes, absolutely! In order to do so, you must be alive and "of sound mind." Accordingly, you can change your will, revoke your will, or draft a codicil (an amendment that is attached to the will).
Q: Are there are restrictions about how I want to distribute my property in my will?
A: No. You may do as you please. The decision to distribute your property is your decision alone. Your beneficiary or beneficiaries can be anyone - a family member, a friend, a charity or even a pet!
Q: If I leave a will, must the courts still get involved?
A: Yes, because your will must be probated. During the probating process, the representative(s) of your estate or the "executor" must file the will, along with other documents, to the court and subsequently prove the validity of the will. This is done in order for the Court to oversee the process and ensure that everything is being done correctly and executed fairly and in accordance with the will (i.e., authorizing the executors enlisted by the will to transfer property/real estate and distribute the assets of the decedent). It is important to note that a Will that is not admitted to probate has no legal effect until
Remember, a Will that has not been admitted to probate has no legal effect until it has been probated. Once the Will has been probated, the executor will be provided the authority to act on behalf of the estate. Therefore, it is imperative that the executor do so as soon as possible.
Q: Can a will be challenged?
A: Yes, wills can be challenged (aka 'contested'). As stated before, wills must be filed in court by the representative or 'executor' of the estate when probating the will. Individuals with familial interest are provided with a notice of the probate proceeding and accordingly permitted to contest the will in court.
Q: Can an individual contest a will because they are unsatisfied with the terms?
A: No, that reason, in and of itself, is not a valid ground to contest a will. In order to contest a will, the individual(s) contesting the will must prove that the decedent who wrote the will (aka 'testator'), only did so because they were subject to fraud, duress, or subdued to undue influence, or that that will was not properly executed pursuant to statutory formalities.
Q: So, what happens if I die without a will?
A: Individuals who die without a will are said to die “intestate”. This means the State of New York or the state that you reside in at the time of your death will decide how your assets are to be distributed. The State of New York has very specific rules concerning the intestate distribution of assets.
Q: Can I appoint someone to raise my children? What happens if I die without a will?
A: In your will, you can designate the guardian that would like to raise your children. If your children's other parent is still living, or if both parents pass away simultaneously, the court will first inquire whether there is a will and if the will appoints a guardian to care for the children. If there is no will (or the will does not name a guardian), the court will be tasked with appointing the guardian(s) for the child/children. The duties and obligations of the guardians are to step into the shoes of a parent (supervise their health, education, property, etc.)
Q: Do I have the right to disinherit my child?
A: Yes, you have full discretion to disinherit your child or children. This can be accomplished by specifying so in a provision in a will.
Q: Do I also have the right to disinherit my spouse?
A: In New York State, unless the parties have a valid prenuptial agreement, postnuptial agreement, or the entitled spouse signs a waiver of inheritance rights, your spouse has a right to a portion of your estate - regardless if you try to disinherit him or her in the will.
Q: Where do I keep my will?
A: The attorney (i.e., Geller Law) drafting it should hold onto it in a safe location. If you want to hold on to the original, your attorney should also maintain a copy of it. Please remember: if you do hold on to the original will, make sure it is in a reliably safe place (i.e., fire and/or water proof) and it should kept in a readily accessible place at the time of your death. It is best to let the individual(s) you intend to represent your estate know where it will be.
Q: Who can I name as my executor?
A: You may designate anyone that you want as your executor. That includes the named beneficiaries in your will (will not affect their right of distribution).
Q: I have two children and I'm afraid they will argue if only one is named as an executor. Can I name both of them as an executor?
A: Yes, absolutely. You have the right to name co-executors. However, although you may be worried that naming one of them may cause tension, having them both appointed may only cause a bigger issue. Co-executors must be available to act together with regard to executing your estate. If a disagreement arises between the two of them during the process, this may only stall and prolong the settling of your estate.
Q: Is my executor required to live nearby?
A: There is no rule that requires where or how far your executor must live. However, your executor should live within the US, and for their convenience, living within the state (or fairly closer to it) would make it easier for them to meet and engage with a New York attorney when seeking to probate the will.
Q: What are the duties of an executor?
A: An executor has several tasks. First, the executor must arrange for the burial of the decedent. They must then compile and account for the assets of the estate. The executor must subsequently notify the parties to the will (i.e., beneficiaries receiving under the will) and the next of kin of the passing of the decedent and of the existence of a probate proceeding. They must then pay the estate's debts, bills, taxes, etc. After the foregoing is accomplished, the executor must then distribute the remaining assets and property according to the decedent's wishes specified in the will.
+Criminal Law
Q: What are the different charges one can be faced with under New York Penal Law?
A: The criminal system has a vast array of possible charges which may be imposed upon a Defendant. However, as a general matter, the following classification system helps separate the severity of the charges pertinent to New York Penal Law:
Violations - In New York, a violation is NOT considered a crime and does not result in a criminal record:
- In New York, a violation is defined as "an offense, other than a 'traffic infraction,' for which a sentence to a term of imprisonment in excess of fifteen days cannot be imposed."
- In New York, a violation is defined as "an offense, other than a 'traffic infraction,' for which a sentence to a term of imprisonment in excess of fifteen days cannot be imposed."
- Misdemeanors
- In New York, a misdemeanor is defined as an offense, other than a 'traffic infraction,' for which a sentence to a term of imprisonment in excess of fifteen days may be imposed, but for for which a sentence to a term of imprisonment in excess of one year cannot be imposed.
- In New York, a misdemeanor is defined as an offense, other than a 'traffic infraction,' for which a sentence to a term of imprisonment in excess of fifteen days may be imposed, but for for which a sentence to a term of imprisonment in excess of one year cannot be imposed.
- Felonies
- In New York, a felony is defined as an offense for which a sentence to a term of imprisonment in excess of one year may be imposed.
- In New York, a felony is defined as an offense for which a sentence to a term of imprisonment in excess of one year may be imposed.
Q: If I am charged with a violation/crime, what happens to my criminal record?
A: A violation is not recognized as a crime in the State of New York, thus you will not have a criminal record. However, handling a violation appropriately with the assistance of our lawyers is imperative to ensure that there are no detrimental repercussions that stem from the disposition of your case. However, an individual that is charged with a crime runs the risk of having a criminal record if found guilty of the crime. For this reason, it is extremely important to contact our New York and New Jersey criminal defense lawyers to ensure that every legally feasible avenue is exhausted to obtain the prompt dismissal and sealing of your case.
+Contracts/Legal Services
Q: What contracts does Geller Law offer its clients?
A: In addition to the divorce and family agreements offered by Geller Law, our lawyers also specialize in the drafting of a variety of other contracts and agreements. These contracts services, include but are not limited to, contracts of sale of property or business, partnership agreements, corporate/shareholder agreements, corporate bylaws, independent contractor agreements and other business related agreements. We will also assist you in the State incorporation of your business or non-profit organization.
Q: Why create a contract for my purposes?
A: Depending on the nature of your circumstances contracts serve a variety of meaningful purposes. However, above all else, a contract is arguably the most resourceful and efficient way to maintain and legally enforce agreements between parties.
Q: What other legal services does Geller Law provide its clients?
A: Geller Law also provides its clients with many additional legal services, including:
- Civil/Tort matters
Personal Injury
Landlord/Tenant Issues
- Commercial Matters
All commercial disputes, including leasing and purchase of property
- Real Estate
Contracts of Sale of Property - Drafting and Review
Closings
Title Services
- Tickets/Fines/Violations Defense
Department of Buildings Violations
Worker's Compensation Fines
Traffic Ticket
Other City and State Tickets/Violations
- Licensing Services
Assistance with all licensing applications
Defense against licensing suspension/revocation/termination
- Per Diem (For Law Firms)
Appearances (Conferences, Hearings, Motions, etc.)
Contract Work