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One Divorce - Four Options
Most people grasp the basic idea of divorce, which is the dissolution of an existing marriage. However, in New York and in New Jersey, there are different ways to end a marriage. This article will discuss uncontested divorce, contested divorce, collaborated divorce and mediation. Depending on the couple's situation, one of these methods could be preferable to another. An uncontested divorce occurs when: (a) there are no disagreements between the spouses over any financial or divorce-related issues (i.e., child custody and support, division of marital property or spousal support); and (b) both spouses either agree to the divorce, or a spouse fails to appear in the divorce action. Contested divorce is simply when a spouse opposes to getting a divorce or disagrees over divorce-related issues. When a spouse contests a divorce action, the divorce can get very complicated on important issues. It is highly advisable to have attorney representation if there are any disagreements between spouses on child custody and support, division of property and spousal support.
Collaborative law divorce and mediation are out-of-court methods of ending a marriage. With Collaborative law, spouses and their attorneys sign a written agreement to settle the case without court litigation. The parties, not the court, are in control of the divorce action. If the case cannot settle and the parties must litigate, the lawyers must resign and new lawyers are hired for the trial.
When parties use mediation to end their marriage, a neutral, trained mediator works with the couple to come to an agreement on the issues and settle the case.
Whether a couple chooses to dissolve their marriage in or out of a courtroom, it is important that both spouses have an opportunity to a fair and quality resolution.
Sources: Elaine McArdle, Divorce without Bloodbath, published 7/20/2005
http://nymag.com/guides/bestlawyers/12282/
Divorce with children under 21 from NY Courts
www.angelabarkerlaw.com
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Dear Angela,
 Given the bad winter weather of 2011, I was prepared for another bad winter in 2012. Fortunately we have had a mild winter. As in life we always prepare for the worse and hope for the best.
Life is a series of transitions, and at the Law Office of Angela Barker & Associates, LLC, we are committed to helping ease the transition through the various life stages: whether it be a change in the family structure as a result of death, marriage, divorce, or separation. We are there for you as you buy or sell your home, and we assist our clients in planning for their loved ones' golden years and help them pass their assets on to the next generation. People are our business. For the benefit of our clients and the communities we serve, we have developed this newsletter as a legal and consumer resource. Enjoy!
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| What is a short sale and how can it help you? |
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Economists, consumer advocates and politicians are trying to figure out whether America's economy is in a recession or in recovery, but one thing is certain - the housing market is still in a slump.
According to data released in LPS Applied Analytics quoted in the August 13, 2011 edition of the New York Times, nearly 4.3 million American homeowners are delinquent on mortgage payments. Many Americans are using a "short sale" as a way to avoid foreclosure. In a short sale, a bank agrees to let a homeowner sell the house at a price that is less than what is owed on the mortgage. Homeowners like this option because they avoid foreclosure, which stays on an individual's credit report for up to ten years.
During the early days of the housing crisis, banks were reluctant to agree to short sales. Now, banks are seeing the value in short sales because short sales offer higher returns and less risk of home abandonment than foreclosure.
In 2010, the Obama administration launched a program called Home Affordable Foreclosure Alternatives (HAFA) to streamline the short sales process for the homeowner and the lender. Under the new federal program, the homeowner will request a HAFA short sale from the bank and the bank has forty -five days to respond with a decision to approve the sale. The federal government offers up to $3,000 in financial assistance for the homeowner's relocation costs and under HAFA, the borrower cannot be sued at a later time on mortgage debt.
Sources:
New York Times, Program will pay Homeowners to Sell at Loss, David Strieitfeld, published 3/7/10 http://www.nytimes.com/2010/03/08/business/08short.html
Jill Capuzzo, New York Times, Banks Ease Stance on Short Sales, published 8/19/11 http://www.nytimes.com/2011/08/21/realestate/banks-ease-stance-on-short-sales-in-the-regionnew-jersey.html
Ray Martin, HAFA- A New Federal Program May Help with Short Sales, published 5/7/10 http://moneywatch.bnet.com/retirement-planning/blog/what-works/hafa-a-new-federal-program-may-help-with-short-sales/325/
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| The Marital Presumption of Fatherhood |
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Jason and Sasha are married. Sasha has an affair with Zack and becomes pregnant with Janet. Legally, who is Janet's father?
Traditionally, the marital presumption assigned legal fatherhood of a child born during marriage to the husband of the birth mother. Courts will presume Janet's father is Jason, unless the court had adequate proof that the mother's husband is not the biological father.
In the Supreme Court case, Michael H. v. Gerald D., 491 U.S. 110, 109 Sup.Ct. 2333 (1989), Judge Scalia explained the rationale for this presumption is "an aversion to declaring children illegitimate" and "promoting peace and tranquility of States and Families."
There has been a sharp increase in the amount of children born outside of marriage over the past few decades. Changes in family structure overlap onto the law. The paternity of a child is critical to inheritance rights. More adult children are initiating paternity challenges in order to establish heirship to a biological father's estate. The laws vary throughout the states but in New York, if an adult child seeks to establish his/her biological father's paternity for heirship purposes, it must be done pursuant to the New York Estates, Powers and Trusts Laws (EPTL).
Paternity must be established by one of four ways: a court order; acknowledgement of paternity signed by the father; the father openly acknowledging the child as his own; or genetic testing combined with other evidence that establishes paternity. In New York, the case law is split on whether genetic testing must be administered during the alleged father's lifetime. Some courts have allowed posthumous genetic testing in probate proceedings and other New York courts found no basis for it without the alleged father's open acknowledgement of the child.
Sources: Megan Pendleton, Intestate Inheritance Claims: Determining a Child's Right to Inherit When Biological and Presumptive Paternity Overlap. http://www.cardozolawreview.com/content/29-6/PENDLETON.29.6.pdf
Disclaimer: Please note that the articles in this newsletter is for general information and does not constitute legal advice. The Law firm of Angela Barker, LLC is not acting as your attorney. We make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked to this web site and its associated sites.
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