HUMAN & CIVIL RIGHTS
Domestic Violence
Domestic violence is a broad term and can apply to various offenses including assault, harassment, menacing, stalking, and violations of orders of protection
Domestic violence survivors may bring civil charges in family court, criminal charges in criminal court, or simultaneous actions in both courts. Survivors may also apply for an order of protection from either court, including an order that the defendant stay away from the survivor and the children involved.
While New York's criminal laws do not differentiate between domestic-violence related crimes and other offenses, it criminalizes several violent acts which may occur between members of the same family or household.
New York Domestic Violence Laws
Statutes
- New York Penal Law Sections 120.00-120.12 (assault offenses)
- New York Penal Law Section 120.13 - 120.15 (menacing offenses)
- New York Penal Law Section 120.45 - 120.60 (stalking offenses)
- New York Penal Law Sections 121.11 - 121.14 (strangulation offenses)
- Family Court Act Section 812 (procedures for family offense proceedings)
Definitions:
Domestic violence applies to crimes between members of the same family or household which includes those who:
- are related by consanguinity or affinity;
- are legally married
- are formerly married
- have a child in common
- have been in an intimate relationship even if not living together
Penalties
Family offenses such as those describe d above face a wide range of penalties under New York law. For instance, conviction of a violent felony offense such as first-degree assault will impose a sentence of 5 to 25 years in prison or a fine of up to $5,000. First-degree strangulation - another violent felony offense - will result in imprisonment of 3.5 to 15 years or a similar fine of up to $5,000.
Offenses including third-degree assault, second-degree menacing, and criminal obstruction of breathing or blood circulation are classified as class A misdemeanors, and thereby punishable by imprisonment of less than 1 year or a fine of up to $1,000.
Defenses
Defenses to a charge of disorderly conduct can include:
- Justification (for assault where parent uses non-deadly force on children under 21 years old in order to discipline or restrain)
- Self-defense (for assault where aggressor effectively communicates his or her withdrawal but victim continues the incident through the use of threatened imminent or unlawful physical force)
- Medical or dental purpose (for strangulation and related offenses)
- Mental disease or defect
Sexual Assault
Sexual assault includes rape, attempted rape, child molestation, and sexual harassment. Any form of unwanted sexual contact or attention, from physical encounters to verbal threats, may be reason to file a sexual assault lawsuit. Survivors may pursue criminal and civil charges against sexual offenders.
In a civil case, an attorney can help sexual assault survivors obtain compensation for the physical and emotional damages resulting from the traumatic experience. Sexual Assault survivors may experience a range of emotional trauma entailing detachment from friends and family, replaying the assault in nightmares or daydreams, anxiety, depression, and avoidance of places associated with the traumatic experience can all be symptoms of the assault.
Sexual assault survivors may bring civil charges against attackers for damages incurred due to the assault as well as criminal charges.
ESTATE PLANNING & PROBATE
What is Estate & Probate Planning?
Almost everyone has an estate. An estate includes everything you own— your car, home, other properties, bank accounts, investments, life insurance, furniture, personal possessions.
When people die, it is crucial to have plan regarding what to do with all their stuff, and more importantly, how their stuff will be distributed amongst their loved ones. Estate planning is the simple act of providing instructions in advance about who will get what, and when.
A strong estate plan should address should include the following information:
- Instructions for which loved ones will inherit what valuables/assets and when.
- Directions about how to care of you if you come disabled before you die.
- Identify a guardian for minor children.
- Provide financial support for family members with special needs.
- Provide financial support for financially irresponsible loved ones, or for those who may need future protection from creditors or divorce.
- Provide life insurance for your family at your death or disability; income insurance in the event you cannot work due to illness or injury; long-term care insurance in the event of extended illness or injury.
- Directions for the transfer of your business at your retirement, disability, or death.
- Reduce taxes, court costs, and unnecessary legal fees.
- A plan should be on-going or reviewed and updated as your family and financial situations (and laws) change over your lifetime.
Should you have an estate plan?
Yes! Estate plans are not just for old and rich people. We can’t predict when our moment to leave this world will occur, so it’s a good for idea to plan ahead.
If you don’t have a plan, your state will have a plan for you.
Having an estate plan is like having the ability to pick whatever you would like to eat for dinner. IF you do not make any dinner selection, that state in which you reside will decide what you eat, from where, and when you eat it. If you would not trust your state to make a good decision regarding your dining preferences, then it is likely not in your best interest to allow the state to decide for you how to administer your estate after your death.
Without an estate plan if you become disabled or cannot conduct business due to mental or physical incapacity, only a court appointee can sign for you. The court, rather than your family, will decide how your assets are used to care for you. This process can be expensive as well as time consuming, and is often open to the public.
In the event you die without an official estate plan, your belongings will be distributed according to the probate laws in your state. In many states the assets of married people with children are divided between spouses and children. In short, your children or spouse could receive less than you wanted, or an amount that does not sufficiently meet their day-to-day needs. If your children are less than 18 years old, the court will manage their inheritance. If both parents die leaving minor children, the court will appoint a guardian, and it may be a person you do not prefer.
What does an estate plan include?
An estate plan typically includes the following documents:
- Will/Trust
- Durable power of attorney
- Beneficiary designations
- Letter of intent
- Healthcare power of attorney
- Guardianship designations
Wills & Trusts
What is the difference between a Will and Trust?
Will: In a will your directions regarding how your property will be divided must go through your state’s probate court process. That means that someone on your behalf will file a petition with the probate court in your state to initiate the probate process. The probate court process could last years due to difficulty finding beneficiaries and getting all interested parties to sign required documents in a timely manner. With a will, the court will ensure the proper distribution of your assets.
Trust: Trust agreements does not need to go through the court system because your belongings are managed by a person whom you named before your death, ie a Trustee, who promised to ensure the proper distribution of your assets rather than the court. *Note: with a trust you give up your ownership of the belongings that you want to include in the trust, and transfer ownership to the trust itself.
Trust agreements tend to be more expensive to draft than wills because they typically involve more steps, like the transfer of ownership title of trust assets from you to the trust. Despite this, many people are comfortable including a trust in their estate plans because it can avoid the slow court process.
New York Probate
What is Probate?
Probate is the legal process by which a person’s final debts are settled and legal title to property is formally passed from the deceased to his or her beneficiaries and heirs. This process occurs within the court system.
How the Probate System Works.
Step 1:
A person named in the decedent’s will, (formally known as an executor), will present the decedent’s will in court within the county the decedent lived in at the time of death. If a will was not made, a person must ask the court to be appointed as administrator in order to ensure the proper distribution of management of the decedent’s belongings. A surviving spouse or adult child usually assumes this role in the event a will was not made or cannot be located.
The executor must go to the probate court clerk’s office within the county the decedent lived at the time of death and file a Petition for Probate of Will and Appointment of Executor. The executor must of have a certified copy of the death certificate when s/he files the petition.
Step 2:
A date will be assigned to the executor to present the will before a judge and ask for authorization to be formally appointed as executor. The will be deemed “admitted to probate,” once the court inspects the document and ensures it was properly signed by the decedent, 2 witnesses, and notarized. The county clerk then records the will.
*Note: When a will becomes probated, it is public record and anyone can learn the contents of the will.
Step 3:
The probate judge will then officially name the executor or administrator as the person who is authorized to represent the decedent and manage decedent’s probate and property accounts. The personal representative will be given a certified court document proving that s/he has authority to act on the behalf of the decedent.
How Lawyers can help executors and administrators
An attorney can help an executor or administer do the following things:
- Probate of the will or presenting it to the court for acceptance as the decedent's last will and testament.
- Notice to beneficiaries, statutory heirs and creditors of the estate
- Assembly and inventory of the estate's assets.
- Preparation of decedent's and estate tax returns.
- Review, settlement, or litigation of creditor's claims against the estate
- Review and payment of estate expenses.
- Preparation of interim and final accountings as required by law or the Surrogate's Court.
- Valuation and liquidation of estate property.
- Distribution of the estate's assets to beneficiaries and heirs in accordance with the terms of the will.
Interstate Administration
What is Interstate Administration?
Intestate administration occurs when a person dies and does not have a will. In such cases, state law, rather than the wishes of the decedent will control how decedent’s belongings are awarded to heirs. The court process for intestate administration is the same process used when a person possesses a will.
If a person does not have a will how are his/her belongings distributed by the court in New York?
If Surviving Family Members Consists of the Following
Then the Surviving Members will Inherit the Following
A spouse (husband or wife) and no children
the spouse inherits everything
children* but no spouse
children inherit everything
spouse and children*
the spouse inherits the first $50,000 plus half of the balance. The children* inherit everything else.
parents but no spouse and no children*
the parents inherit everything
siblings (brothers or sisters) but no spouse, children*, or parents
the siblings inherit everything
* If a child dies before the Decedent and had children of their own, then the Decedent would have grandchildren. Those grandchildren would step into the Decedent's child's place and inherit in place of the child.
Power of Attorney
What is Power of Attorney?
Power of Attorney is simply a document identifying a person or organization who will manage the affairs someone else in the event that person is unable to do so for any number of reasons.
Types of Power of Attorney
- General Power of Attorney
A general power of attorney gives unspecific powers to a person or organization to act as the person who granted the power of attorney. Powers can include but are not limited to managing financial and business transactions, and making gifts.
This type of Power of Attorney can be used for example if you will be out of the country need someone to handle certain matters, or when you are physically or mentally incapable of managing your affairs. General Power of Attorney is also often included in an estate plan to ensure someone management of financial matters.
- Special Power of Attorney
With special power of attorney a person can identify specific activities an agent can manage on your behalf.
- Health Care Power of Attorney
Health care power of attorney allows the agent to make medical decisions for someone in the event s/he becomes unconscious, incompetent, or unable to make the decisions for her/himself.
- Durable Power of Attorney
Power of Attorney usually ends when a person dies or becomes mentally unstable or unconscious. To ensure that a person’s agent can still act on her/his behalf despite death or mental incapacity, durable power of attorney can be used. This simply means that if you become mentally incompetent, due to illness or accident, your agent retains his/her power of attorney authorization.
You can make a general, special, or health care power of attorney durable by simply adding a durability provision. Often durable power of attorney clauses stipulate that durability is not triggered until a doctor(s) or licensed physician(s) agree on your mental condition.
REAL ESTATE TRANSACTIONS
Purchase & Sale Transactions
What is the role of an attorney in purchase and sale of agreements for real estate?
Attorneys prepare Offer to Purchase Contracts for the sale of home. It is extremely important that both parties, and especially the buyer understands all terms and deadlines outlined in with the Contract. An attorney can help explain and negotiate terms that are in the best interest of the client. The Purchase Contract is a legal document is binding, ie carries penalties on the seller or buyer if either party does not uphold promises made.
Title Search
When a buyer obtains a loan, the lender obligates the buyer to examine the county land records to ensure that the seller actually owns all rights to the property being sold. The attorney for the seller typically will do a search to guarantee that the buyer will acquire the property free of claims from other parties, judgments, outstanding mortgages, unpaid taxes, and defects.
Title Insurance
An attorney can apply for title insurance on behalf of the buyer. In some cases, a normal title or public records search does not reveal latent defect such as forged documents, hard to find heirs, or clerical errors. Title insurance can protect against these defects.
Closing
Prior to closing or the official exchange of property, pest inspections will be completed, accommodations will be made to resolve defects on the property, and the buyer will have acquired a homeowner’s hazard insurance policy. The attorney will prepare all documents necessary for closing, including scheduling the closing appointment with all interested parties, and ensuring that documents are properly executed and recorded, and all money is paid to the appropriate party on your behalf.
Leases & Landlord / Tenant Issues
A lease agreement as it relates to property is a contract that allows one person the right to use and live on the property of another. Various complications may arise regarding lease agreements for example
- A tenant wants to leave property before the official termination date specified within the lease
- A tenant would like to withhold rent due a grave issue concerning the property (ie long term absence of power or water, rodent infestation)
- Landlord would like to evict tenant who insists on staying being the term of the lease agreement; or tenant has refused to pay rent for several months, or tenant has engaged in behavior prohibited within the lease agreement.
An attorney should be consulted immediately in the event any of these circumstances arise, or in the event a tenant or landlord is interested in breaching a lease agreement.
BUSINESS SERVICES
Partnership Agreements
Partnerships are businesses where more than one person acts as the owner. Owners have the responsibility of running the business as a unit, gains, losses, and liabilities are split equally amongst owners. When two people decide to work together with the aim of making money, a partnership is naturally formed. It is imperative that an agreement is made outlined responsibilities, profit sharing, and responsibilities. A partnership agreement is the instrument used to explain these details.
Partnership agreements typically address the following concepts:
- When to begin and end the partnership agreement
- Partnership Name
- Place(s) of business and ownership of the property therein
- Implementation of an accounting system
- Banking arrangements
- Capital, current accounts, drawings
- Partners obligations and duties
- Maternity and vacation
- Management and meetings
- Limitation a partner’s authority
- Retirement and expulsion
IMMIGRATION
Immigration deals with the following subtopics:
- Citizenship
- Lawful Permanent Resident
- Nonimmigrant
- Political Asylum
- Removal Proceedings
- Undocumented Resident
Citizenship
There exists 5 ways to become a citizenship of the United States.
- You were born in the U.S. or in an unincorporated U.S. territory
- If one or both of your parents are U.S. citizens and you are born outside the U.S.
- If you meet certain requirements and pass a citizenship test then you can become a citizen through naturalization
- If one or both of your parents become citizens through naturalization and you are a lawful permanent resident under 18 years old living with your parents in the U.S. at the time s/he/they naturalize, then you automatically will become a citizenship, (ie “derived” citizenship)
- If you are under the age of 18 years and live outside the U.S. in the legal and physical custody of a U.S. citizen parent who was physically present in the U.S. for five years – two of which was after 14 years of age- then you can get citizenship by applying during the course of a lawful admission to the U.S.
Lawful Permanent Resident
A lawful permanent resident is a green card holder who has the right to live and work within the U.S., and has the right to petition for residency for close family members. To become a lawful permanent resident a person must fit into one of the following categories:
- Be sponsored by an immediate relative (spouse, parent, child, or sibling)
- Be sponsored by an employer
- Be granted refugee or asylum status
- Win the diversity visa lottery
- Be in a certain category of special persons, like investors, religious workers etc.
Non-Immigrant
Non-immigrant visas are given to foreign nationals who would like to come the U.S. on a temporary basis, often falling into the categories of a visit, work, or study. The most frequently used visas include:
- B-1 and B-2: temporary business visitors and tourist visitors
- F-1: academic students
- H-1B: temporary workers in specialty occupations (may have a future intent to stay permanently in the U.S.)
- E-1/E-2: traders/investors coming to the U.S. to start their own business
- L-1: Intra-company transferees being assigned to work in the U.S. arm of an international organization (may have a future intent to stay permanently in the U.S.)
In order to obtain these visas, a foreign national must apply with a U.S. embassy consulate within his/her country. Typically, the foreign national must show an intent to return back to his/her home country, s/he has no criminal convictions, and that s/he can support herself/himself financially in the U.S. A nonimmigrant visa can be denied if it a person has lied on the application, or if an application poses concerns regarding politics, economics, national security, public health, or safety.
Political Asylum
Asylum Status vs. Refugee Status
Asylum Status
Refugee Status
Who Can File?
A foreign national
A foreign national
Where is the petition filed?
In the U.S.
Outside the U.S.
What do you need to prove?
You have a well-founded fear of persecution in your own country
You have a well-founded fear of persecution in your own country
A foreign national may enter the U.S. then seek asylum at the place where s/he enters such as at the airport or border. If a foreign national has entered the U.S. illegally, s/he can still file for asylum as long as the petition is filed within a year after arrival into the U.S. An exception allowing a foreign national to apply for asylum one year after arrival into the U.S. if s/he can prove that his/her situation changed and caused a delay in filing the application.
Removal Proceedings
Foreign nationals can be deported and returned to their home countries even if they have become U.S. citizens for the following reasons:
- Committed fraud to obtain a green card or citizenship
- Convicted of certain crimes related to illegal drugs, firearms, or espionage
- Convicted of fleeing from an immigration checkpoint (i.e., running away)
- You are a drug abuser or addict or became one at any time after your admission to U.S.
- Convicted of domestic violence, stalking, child abuse, child neglect, or child abandonment, or violated the portion of a protective order that was meant to stop credible threats of violence, repeated harassment, or bodily injury
- Failed to register as a sex offender
- Failed to advise the immigration authorities, in writing, of a change of address within ten days of the move
- Convicted of providing false information in connection with required registration with immigration authorities
- Convicted of other violations relating to fraud and misuse of visas, permits, and other entry documents
- Falsely represented yourself as a U.S. citizen in order to gain any immigration or other benefit
- Engaged in, or supported, certain terrorist activity or participated in persecution, genocide, or extrajudicial killings, severe violations of religious freedom, or recruitment/use of child soldiers
- Became dependent on need-based government assistance within five years after U.S. entry, for reasons that arose before your entry
- You were inadmissible when you entered the U.S. or had your immigration status adjusted
- Violated the terms of your visa, green card, or other status
- Your conditional permanent resident status has been terminated
- Committed marriage fraud or got married less than two years before getting your green card, then had the marriage annulled or terminated within the following two years, (this applies unless you can prove that the marriage was not a fraud and was not done to evade immigration laws)<
Please note, deportation is not immediate, a right to a court hearing and a right to defend oneself against deportation at a hearing is always guaranteed.
Undocumented Resident
Who are undocumented residents?
Undocumented residents or illegal aliens fall into the following categories
- foreign nationals who have remained in the U.S. beyond their authorized time periods
- Have entered the U.S. without permission
Undocumented residents may be placed in removal proceedings or deported if they are arrested by police or detained by immigration authorities.
Do undocumented residents have rights?
Yes they do. Undocumented residents are protected under the Fifth and Fourteen Amendments. If someone sues an undocumented resident s/he has the right to receive notice of claims and a right to defend against charges. Undocumented residents have the right to file lawsuits if they are injured, and their property cannot be searched or seized without probable cause.
Undocumented residents have rights when they work illegally
Although employers are not supposed to hire workers who are undocumented, if an undocumented worker does get hired, s/he has certain rights. If an alien is hurt while working, s/he can collect worker’s compensation benefits. Undocumented residents have the right to organize or join unions, and cannot be unlawfully discriminated against in the workplace. If an undocumented resident is fired, s/he does not however the right to obtain unemployment benefits because no initial right to work within the U.S. was ever granted.
Please note, deportation is not immediate, a right to a court hearing and a right to defend oneself against deportation at a hearing is always guaranteed.
