The Kiley Law Firm Blog

Divorce Mediation Doesn’t Work But Settlement Is Still a Worthwhile Goal

There’s a trend in matrimonial law toward using “divorce mediators.”  Here’s how one website describes it:

Mediation is one of the most frequently used methods of negotiating a divorce settlement. In divorce mediation, you and your spouse – or, in some cases, the two of you and your respective lawyers – hire a neutral third party, called a mediator, to meet with you in an effort to discuss and resolve the issues in your divorce. The mediator doesn’t make decisions for you, but serves as a facilitator to help you and your spouse figure out what’s best.

In theory, divorce mediation is a great idea.  Litigating the case and involving a judge is an expensive option.  Every court appearance requires the lawyers to drive to court and wait in the courtroom while a judge or law secretary handles a full calendar of cases.  Also, if the dispute involves minor children, the court will appoint a law guardian who becomes the attorney for the children.  In those cases, the litigants are generally obligated to share the cost and pay the law guardian. 

If the parties can settle their disputes out of court, they save money and both parties “win.”  But the process only works if both parties are equal combatants.  Frequently, that is not the case because of the nature of divorce disputes.  In most lawsuits, the parties are strangers and have no or little personal history.  However, married couples share a level of intimacy that is unique.  They each know the other’s physical, emotional, spiritual, financial and personal secrets.  Most times, one party or the other has a psychological edge that comes from knowing the other’s weaknesses.  This may be the case because one party is physically or emotionally abusive of the other.  Or it may be that one party was at “fault” having cheated on the other or having wronged the other by being financially irresponsible.  Or it just may be the nature of married couples who get divorce that one party is just dominant.  In those cases, the “weaker” party cannot effectively advocate for his or herself and the foundation for the mediation – that the parties are equal combatants – collapses. 

I am still a great advocate for attempting to negotiate and settle the issues.  But the parties are more likely to get a fair settlement when they retain attorneys who understand these basic truths:

∙                                   Nobody “wins” a divorce because the parties have to split their assets.  Although, “equitable” distribution doesn’t necessarily mean “equal” distribution, in many situations the parties split their assets evenly;

∙                                   Whatever money is paid to the lawyers, reduces what’s left over to split between the litigants.  It should be a goal (though not always an attainable one) to compromise.  If you leave it to a judge, he’ll usually split the baby anyway!

∙                                   The parties may despise each other, but if they have children, they will never know real peace unless they learn to tolerate each other.  Burning down the literal house by going to “war” with your spouse is a bad way to start the rest of your life.

∙                                   Judges will inevitably press the parties to settle “out of court,” because judicial resources are limited and the court’s dockets are loaded.  There are only so many cases that can be tried.  If you refuse to negotiate, you’ll likely feel pressed to settle at the “courthouse steps.”

∙                                   Divorce litigation is emotionally draining.  The end of a marriage is one of the most emotionally painful human experiences.  When a marriage ends, it’s not just the pain of losing love that you endure. There’s also the sadness at the loss of the dream of living happily ever after and the anger at being unable to trust any kind of permanence.  So, litigants would do well to retain attorneys who have an eye on the long game.  In the end, victory at trial is frequently “pyrrhic” – won at too great a cost to have been worthwhile for the victor.  As the Greek general, Pyrrhus, remarked after winning another costly battle, “another such victory over the Romans, and we are undone.”        

Consider Funeral Trusts as a Part of Your Estate Planning

If you are 65 or older, blind or disabled, and have the means to set aside some funds, we recommend that you consider setting up a pre-paid funeral trust with a reputable funeral home of your choice.  A funeral trust is an agreement with a funeral home or cemetery who utilizes a pooled income fund to hold assets you set aside to cover future funeral and burial costs.  You can fund the trust with cash, bonds, or life insurance.  The contract allows you to “lock in” future funeral or burial services costs, adjusted to the time when it is expected you will need the trust funds.  It allows you to alleviate any burden on your loved ones to decide upon and fund critical end of life decisions after you have passed, because you will have taken care of all of this already, according to your wishes.    

A funeral trust can be revocable (changed and revoked by the person who sets it up at any time) or irrevocable (generally you can’t get your money out except to pay for funeral services).  Because the funds you set aside go into a pooled income trust, they can accumulate some interest over time.  Another advantage of an irrevocable funeral trust is that it can help one qualify for Medicaid.  As an irrevocable trust, the funds put into it will no longer be deemed in a person’s name and will not create a past asset transfer that violates Medicaid’s “5-year look-back” rule.[1]  An irrevocable funeral trust is still very flexible, however.  An individual (or his/her legally responsible relative following one’s death) may change the choice of funeral home, funeral director, undertaker or cemetery following the execution of a funeral trust, but just may not revoke the agreement entirely.  We also recommend individuals select an independent trustee (other than the funeral home) at the time of setting up a trust to allow for auditing the actual funeral bill for reasonableness and pay any excess to the family, when the time comes. 

Yet another positive about funeral trusts that many people don’t know is that you may also establish a qualifying, irrevocable funeral trust for someone in your “immediate family” and still not create a penalizing asset transfer according to Medicaid eligibility rules.  Immediate family members have been defined to include:  parents, adoptive parents, a spouse, children (minors or adults, including adopted children and stepchildren), and brothers and sisters (including step-siblings and adopted siblings).  The spouse of each of these relatives is also included in this definition, provided the individual is still married to the relative at the time an individual applies for Medicaid.[2]

A few other details about funeral trusts desired to support Medicaid eligibility clarify the legitimate expenses of trust funds as follows:

• Burial space items to include: a casket, urn, mausoleum, vault, headstone, burial containers and headstone engraving, a burial plot or gravesite, the cost of cremation or the opening and closing of a gravesite, and the cost of a perpetual care contract for a gravesite.
• Non-burial space items to include: embalming/cosmetology and burial clothes, funeral transportation (hearse, limousine, out of town shipping), use of funeral home facilities (for services, visitation, or a wake), clergy services, death notices, and flowers.

Items which may not be included in a funeral trust for Medicaid eligibility purposes include: food, lodging or transportation expenses for family, friends or guests.  There is no limit on the cost of the items, but their cost must match the fair market value to qualify.

Kiley, Kiley & Kiley can assist you in your estate planning.  We can help calculate eligibility for Medicaid and suggest ways, like the use of funeral trusts to allocate excess resources, particularly should you wish to legally protect your hard-earned financial nest egg for your family members and retain the option to become Medicaid eligible when the time comes.  Please contact our office to assist you further.

[1] Kiley, Kiley & Kiley can gladly provide more information regarding resource and asset protection planning to also allow Medicaid eligibility.

[2] See N.Y. Social Services Law Section 141(6) and General Business Law Sect. 453 for the laws on funeral trusts. See also http://www.health.ny.gov/health_care/medicaid/publications/pub2011adm.htm for 11 OHIP/ADM-04-Treatment of Irrevocable Pre-Need Funeral Agreements (July 11, 2011) available at for the NYS Dept. of Health directive implementing and the NYS DOH Medicaid Reference Guide [MRG] section on funeral agreements and burial funds, available at http://www.health.ny.gov/health_care/medicaid/reference/mrg/index.htm.

By: Donald T. Kiley, Jr.

If you or someone you know was sexually abused in New York State when he or she was under the age of eighteen, a new law has extended the time for abused persons to seek justice.  Under the Child Victims Act, child sex abuse victims now can pursue criminal and civil remedies.

Under the NYS Criminal Procedure Law (CPL 30.10(3)f), the perpetrator can be prosecuted for  felony until the victim reaches the age of twenty-eight.  And if the acts occurred when the victim was younger than eleven years, there is usually no time limit for criminal charges.  See:  CPL 30.10(2)a.

The option to pursue civil penalties for money damages in civil cases for victims who were sexually abused as when they were younger than eighteen (18) has also been extended and expanded.  The old statute of limitations period was limited and started after the survivor turned eighteen (18). Now under the Civil Practice Laws and Rules (CPLR 214-g) victims can sue their abusers and/or the groups and organizations who supervised them until they reach the age of fifty-five (55) years.

Under the new law, private and public organizations such as schools, hospitals, churches, employers and other institutions can be held responsible for the actions of the men and women who worked and volunteered for them.  This is frequently the crux of the statute, as proving your case against an indigent offender will not provide relief.

The law further opened the legal forum for victims who were older than 55, as it provided that only until August 13, 2020, a child sex abuse victim can start a civil case no matter how old he or she was at the time the case was instituted.  This is true:

            – no matter how old the victim is;

            – no matter how long ago the abuse took place;

– no matter that the case had previously been time-barred under the previous law;

– no matter that the case against the abuser had been previously dismissed under the old    statute of limitations; and,

– no matter (in cases against a municipality) that the victim had failed to file a Notice of    Claim under the Municipal law.

Cases brought under the new law are referenced as “revived CPLR 214-g” cases.  And special Rules apply. Recent decisions enable plaintiffs to pursue their legal remedies without their names being attached to the caption.  And when the case is ready for trial, it receives preferential treatment by moving ahead of other cases on the courts’ dockets.

The change in the law reflects the reality that survivors of child sexual abuse must overcome baseless shame and, unwittingly, forgive themselves for having been victimized.  So many are only able to come to terms with the trauma after many years.

If you, a relative or a friend was sexually victimized as a child, call Kiley, Kiley & Kiley.  We have already obtained legal satisfaction for victims of similar assaults and we are ready, willing and able to zealously fight for your rights.  

New legislation is expected to significantly expand the provisions of the New York City Earned Sick Time Act (Act). The Act, which takes effect on April 1, 2014, requires most private employers to provide up to 40 hours of paid or unpaid sick leave per year to employees working in New York City.  The proposed amendments to the Act will expand the Act’s paid sick leave requirements to cover employers with between five and fifteen employees, expand the definition of “family member,” and increase employers’ notice and record keeping requirements.

Recently, an aunt of mine was clearing out some personal items and came across a letter my grandfather had written to his mother-in-law (my great-grandmother) soon after my grandparents’ honeymoon in 1924.  It was a beautiful letter- the kind that people years ago were skilled at writing, a skill not often displayed these days in e-mail, texts and on social media. Lets face it, the art of letter writing has been lost in our digital age.  Traditionally, people have always hung on to such letters or cards for posterity- keepsakes to remember and pass on to a child or grandchild.  Is this also being lost in our digital age?

As recently reported by NPR, consider the plight of a mother in Portland, Oregon, who continued to use her son’s Facebook account to read postings on his wall after his accidental death.  Her son’s wall contained photos and postings from personal friends, many of which she had never seen before. However, when Facebook learned of the son’s death, it changed the password and closed the page.  Thus began a long legal battle by Karen Williams to regain access and obtain years worth of her son’s life on Facebook.

Now, lawmakers in many states are considering legislation that would require social networks like Facebook to grant loved ones access to the accounts of family members who have died.  In Oklahoma, a recent 2010 law grants the administrator of an estate the power to act on behalf of a deceased individual and access social media accounts.  These laws beg larger questions for the individual estate plan.  Whereas in the past, people have always properly considered the disposition of tangible personal property in their Wills, shouldn’t they now also be being given consideration to their “on line” property- the treasure trove of photos, messages and postings that accompanied them through life?

My grandfather died in 1963- 6 years before I was born.  I only know him from family stories… but his letter gave me great insight into his character.  I smile at the notion of how much more my great grandchildren will know of me.

With Valentine’s Day approaching, no doubt many men are considering a marriage proposal to their significant others.   But before “fools rush in”, consider this: Who gets the engagement ring if the wedding is called off?  Believe it or not, there is a law in New York State that contemplates such eventualities.   

Civil Rights Law § 80-b states that “nothing in this article [contained] shall be construed to bar a right of action for the recovery of chattel . . . or the value thereof . . . when the sole consideration for the transfer of the chattel . . . was a contemplated marriage which has not occurred . . .”  Section 80-b is intended “to return the parties to the position they were in prior to becoming engaged, without rewarding or punishing either party for the fact that the marriage failed to materialize.”  Gaden v. Gaden 29 N.Y. 2d 80, 88.

However, consider where the proposer is in the midst of a divorce that has not been finalized before the proposal.  Such was the unfortunate fate of the Romeo in Listoken v. Kreitman  2007 NY Slip  Op 34260.  Listoken sued his former fiance Kreitman for the return of the $76,000.00 engagement ring kept by Kreitman after their breakup.  The Court found that since Listoken was married at the time of the proposal, the enagement ring could not be recovered on the grounds that  “an agreement to marry under such circumstances is void as against public policy . . . and it is not saved or rendered valid by the fact that the married individual contemplated divorce and that the agreement was conditioned on procurement of the divorce.” Lowe v. Quinn 27 N.Y.2 d, 397, 400  (1971)

Public policy, however, does not proscribe a return of the ring in situations where unbeknownst to the plaintiff, the defendant recipient of the ring was still married. In Shoenfeld v Fontek 67 Misc 2d 481 (1971), the unmarried male plaintiff sought to recover property he gave to the married female defendant in contemplation of their marriage, which ultimately did not take place. The defendant argued that no recovery was permissible because she was already married, and an impediment to the marriage therefore existed. The Supreme Court determined that the rule precluding recovery in such cases “is not intended to bar an action for the return of property by an innocent party, not aware of the other’s disability to contract a marriage at the time of the “engagement'”.

Of course, the foregoing rules apply only to a ring given as an engagement ring.  If there were reasons other than a contemplated marriage why the gift was given, such as part of a birthday or holiday celebration, the ring may not be subject to return.  Where there is a genuine dispute as to the circumstances under which the ring was given, a trial may be necessary to determine the facts.

Despite the seemingly endless number of ATMs to be found in every neighborhood, sometimes it is just easier to pay for small items with a credit/debit card. This avoids he imposition of costly ATM fees or a pesky Canadian trio will try to steal your money.

More often than not, once you get to the register with your bottle of water or bagel and present your card, you will be met with a shake of the head and a point to a hand-written sign that says “$________ minimum for all credit/debit transactions.” Well, if the handwritten sign attached to the register says so, it must be true, right? The answer, unfortunately is, maybe.

Until 2010, most credit card networks prohibited merchants from setting minimums for credit card transactions. A coalition of retail and small business organizations asked Congress to change this. The request received little notice because it was just a few short lines of text that made up the nearly 900 page Dodd-Frank Wall Street Reform and Consumer Protection Act .The law states that merchants can set a credit card minimum purchase of up to $10.00, as long as they treat all cards the same. It also allows the Federal Reserve to review and increase the minimum payment amount.

 When confronted with this, if the sign says $10.00 minimum and all you have is a bagel and you want to pay by card, you are going to have to load up on additional items to reach the minimum. If however the minimum is above the $10.00 limit, consumers can report violations by merchants by contacting their issuing banks using the numbers listed on the back of their credit cards or contact the card company directly.

¹  (Sidel, Robin. ATM Fees Heading Higher.  16 Mar. 2011.  The Wall Street Journal.http://online.wsj.com/article/SB10001424052748703566504576202792887598636.html.

²  (Peltz, Jennifer.  3 Men From Canada Charged with NYC ATM Scam.  16 Nov. 2011.  The Wall Street Journal  http://online.wsj.com/article/AP686ce864c7d34238a8a1f8dad077a1bb.html.

³ 111th Congress (2009 – 2010) H.R.4173.  Page 698. Dodd-Frank Wall Street Reform and Consumer Protection Act. http://www.gpo.gov/fdsys/pkg/BILLS-111hr4173enr/pdf/BILLS-111hr4173enr.pdf.