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.”        

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.  

Have you ever wondered why so many cars parked on a New York City street have out-of-state license plates?  It costs a fortune to own a car and pay for insurance, tolls, gasoline and repairs.  The lure to register and insure a car in a different state where insurance rates are low is strong because New York State’s automobile insurance rates are among the highest in the nation.  But paying less for your annual premium will get you into serious trouble if you have an accident and will likely cost you much more.

A study recently submitted to the New York Senate reported that automobile insurance companies lose approximately $16 billion in lost premiums because of “Insurance Rate Evasion.”  (http://www.nysenate.gov/files/pdfs/InsuranceRateEvasion_Report_PRESSER_0.pdf.).  The only reason the Senate knows about this is because it’s a hot topic with the insurance industry.  And the insurance companies are doing all they can to plug the leaks and recover their losses.

If you report that your car is in an accident, your insurance company will quickly check to see where the accident happened and where you live.  If the accident happened in Brooklyn and your car is registered in another state, don’t expect the insurance company to “fugetaboutit.”  The adjuster will suspect that you may have committed insurance fraud.  He or she will cross check the accident information against your home address and if there’s not a match, they’ll deny your claim.  The company won’t pay to fix your car because you would have deliberately provided false information on your application for insurance.  Check your policy.  Under the “General Provisions” section you’ll find boilerplate language which provides that the company will deny coverage to any insured who has made any material misrepresentation to the company.  And the company will be legally within its rights because your insurance policy is a contract and the company is only obligated to pay claims which are their contractual obligations.  If you breach the contract, the company need not pay for the loss.

Even worse, if you’re injured, you may quickly incur thousands of dollars in medical bills.  When you attempt to collect No-Fault benefits, the company will demand that you appear for an Examination Under Oath (EUO) and ask your questions under oath, swearing to the truth of your answers.  If the company can prove that you lied about your residence in New York, it will deny your claim and you will be responsible for the medical bills.  And don’t think that your health insurance carrier will pay the claim when they discover that you were injured in an auto accident.  You will have to foot the bill yourself.

Furthermore, lying under oath can make your problems much worse.  If you lie to your mother, she may send you to bed without dinner.  If you lie to your wife, she may send you to sleep in another bed.  If you lie to the insurance company’s lawyer after swearing to tell the truth, a judge might make you sleep on a bed inside a 6 ft. by 9 ft. cell because perjury is a crime under Article 210 of the New York State Penal Code.

So think hard before you try to save the cost on your insurance premium.  The money you save will be a fraction of the money you may lose.

When you leave the womb and greet the world your parents give you a name and put it on your birth certificate.  Nobody asks your opinion.  You get no chance to object.  As soon as they’ve determined whether your blanket should be blue or pink, they hang a name on you that you wear for the rest of your life.  So you don’t like the name Mabel?  Ignatz is not your preference?  Suck it up.  You can’t fight it.  Or can you?

You might be surprised to know that it’s relatively easy to change your name.  Article 6 of the Civil Rights Law of the State of New York outlines the procedure to make a change and the applicable rules.

People are most likely to change their surnames, rather than their given names.  But you may change either or both.  The most common scenario occurs when a wife assumes her husband’s surname at the altar.  But did you know that the marriage license application offers other options?  Under the Domestic Relations Law (D.R.L.) §15(b)(1) either or both spouses can change their names when they apply for a marriage license.  The application form prompts you to make the decision.  You can opt to change your name to:

(a)  your spouse’s surname,

(b)  your spouse’s former surname;

(c)  any name “combining into a single surname all or a segment of the premarriage surname or any former surname of each spouse”; or

(iv) a combination name separated by a hyphen, provided that each part of such combination surname is the premarriage surname,  or  any  former  surname, of each of the spouses.

Confused?  Not nearly as much as your wedding guests will be when they receive a thank you card from “Mr. and Mrs. Schwartz-O’Reilly-DiGiorgio-Slovinsky.”

Your surname, doesn’t automatically change when you get married, but if you do elect to change your name on your marriage license, the license will be proof of the change.  The procedure is relatively simple, as long as it’s done coincidentally with applying for a marriage license.

Suppose you’re not getting married, but want to change your name for another reason.  Did your parents give you a first name that makes you the subject of derision?  Maybe your last name is too difficult to spell or embarrassing to say.  Or perhaps your parents just didn’t consider that certain given names shouldn’t be matched with certain surnames.  Consider the case of poor Anita Hoare who lives in Bournemouth, United Kingdom:  http://www.linkedin.com/pub/anita-hoare/26/472/2b0

For every Constance Noring, Adam Zapel, Chris Coe or Crystal Ball there is hope.  A petition under Civil Rights Law §60 must be in “writing, signed by the petitioner and verified in a like manner as a pleading in a court of record, and shall specify the grounds of the application, the name, date of birth, place of birth, age and residence of the individual whose name is proposed to be changed and the name which he or she proposes to assume.”

The petition must be approved by a judge who will inquire if you’ve been convicted of a crime or adjudicated a bankrupt or owe back child support.  You are required to disclose any judgments or liens of record or actions or proceedings against you.  If any of these situations apply, you’ll need to explain why the change is justified and is not a surreptitious attempt to avoid your legal obligations.  Similarly, if you have been convicted of a violent felony, your application must be made on notice to the district attorney, division of parole or county probation department.

If you pay your fee, file your petition, get approval from the court and publish the judge’s order in the newspaper that he directs, you may legally change your name.  There’s also a provision in the statute that may exempt a petitioner from publishing the order if the court reasonably believes that his or her safety may be risk.

So there is hope.  If you can’t stand that your name is “Duane Pipe,” you don’t have to take it anymore.  Get up!  Be the Earl E. Bird, and file your petition.  Tell the judge you’ve been to Helen Back.  When you make the change you can celebrate by having a Hy Ball and proclaim “Ida Clair, that I’m not a Lou Zar, anymore!”

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.

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.

In the 3^rd Millennium, prehistoric man picked up his hunting and gathering tools and moved to Mesopotamia to live with his fellow former cavemen. Thus, began civilization. The dawn of the next day witnessed the first dispute between adjacent landowners. It probably started over something minor. Perhaps Uruku’s camel too frequently fertilized Ebarbar’s front lawn. An argument ensued over picayune matters and quickly escalated to a full-blown feud until Ebarbar finally settled the matter by burying the hatchet . . . in Uruku’s skull.

After Hammurabi codified the laws, the hatchet solution became passé. So was spawned the first lawyer. Five thousand years later people still fight with their neighbors and lawyers are still busy.

Not-so-neighborly disputes arise over boundary lines, shared driveways, noise complaints and innumerable other actual or perceived injuries. To solve these problems, I advise my clients of their five options:

You can sue the bastards, but civil litigation is costly.

You can do like Ebarbar did, but criminal defense attorneys are also expensive and felony murder can get you a long prison term.

You can try to work it out.

You can ignore it.

You can move.

If the offense is minor, I always advise the client to choose option three and fallback on option four. No matter how many times your neighbor puts his trash cans on your side of the driveway, it’s not worth it to sue him. If you do, it will cost you money, time and aggravation. And it won’t solve the problem. You’ll find yourself mired in the quagmire of trench warfare which will make you paranoid and anxious. You’ll never again feel that you are at “home sweet home.”

Some offenses cannot be ignored or excused. If your neighbor paves over your lawn to make a larger driveway for his boat and RV, his encroachment impairs the value of your land and clouds your title – perhaps making it unmarketable. What can you do in such a case?

First, you should research the title to your property to see who owns the land in question. Check for easements, which are recorded agreements permitting adjacent property owners to use or cross your land. It may be that a prior owner gave your neighbor the right to place his driveway next to your geraniums.

It is essential to know your property line. Where does your land end and his begin? Only a licensed land surveyor can make that determination. It’s expensive to obtain a new survey. But if your surveyor can locate an existing survey, he can compare it with the “meets and bounds” description in your deed. He will measure your property by reference to fixed points such as intersections. The surveyor researches available property records and compares adjoining properties. He then measures distances with references to compass points to identify your property lines. Ask the surveyor to “stake the property” so that you can see for yourself and show your neighbor.

If your inspection reveals that your neighbor’s driveway is less that one foot inside your property line, a title company will insure the property as such deviations are minor. However, if own a small lot, a one foot encroachment can be significant regardless that your ownership is insured. Then, it’s your call whether to make an issue of it.

If the surveyor confirms that your neighbor’s driveway extends more than one foot onto your land you must take action to remedy the problem and reclaim the land. Even if you don’t mind the intrusion, it may prevent you from selling the house if your buyer can’t get title insurance or his mortgage lender determines that the value of the “lost” property severely impairs their investment. In the worst case scenario, an obvious, obtrusive and offensive use of your land for more than ten years will allow your neighbor to take the property by “adverse possession.”

What then can you do? Machiavelli once said, “There is no avoiding war; it can only be postponed to the advantage of others.” But he didn’t have to pay a lawyer or live next door to his mortal enemy. Decide if the encroachment really bothers you or significantly impairs your use of the property. If not, one solution is to negotiate and sign a Boundary Line Agreement, by which you may permit your neighbor to use the land with the understanding that he doesn’t own it. It’s a good compromise. He keeps his driveway and avoids the cost and inconvenience of relocating it. You keep good title to the property and avoid the cost of litigation. You both avoid conflict which is essential to your sanity and peace of mind. Remember. You live here. This is “home” where you should be safe and happy.

The Boundary Line Agreement can be drafted so that it will expire upon a future event, such as when your neighbor sells the property or needs to repave the driveway. That provides a permanent but bloodless solution.

If you’ve tried unsuccessfully to resolve the problem amicably, it will be easier to justify spending the time and money to sue him.

Tomorrow my wife Maria and I will bring our daughter, Ally, (and loads of our money) to Harvard where she will begin her freshman year. She has been packing for two weeks and I will need to rent a small semi to get all her things to Boston. I remember my parents sent me to Colgate with a trunk full of jeans and flannel shirts, some toiletries, and a winter coat (which I started wearing in October, I might add).

I’m sure that some of the differences between what I brought to Colgate and what Ally will bring to Harvard are gender-based. But the technical toys and modern conveniences that she has at her disposal are so far removed from my college experience to make me think I went to school during the dark ages. For instance:

• Ally has a 3G Droid cell phone on which she can surf the internet; I had quarters and waited in line to use the hall phone at Center Stillman Hall;
• She will have sushi and sashimi at a posh student “eatery”; I ate slop at the SAGA mess hall if I was hungry enough to brave the alpine trek from the Freshman Quadrangle to the bottom of Cardiac Hill and back up again.
• She has an Apple computer and word-processing software to prepare “documents”; I knew a coed in West Stillman who would type my term paper for money IF I gave her enough lead time. Oh. And I also had all the apples I wanted if I was desperate enough to brave the ice and wind down the mountain and back up again;
• She has an I-Pod so small she can carry it in her hip pocket; I had a turntable that traveled no farther than the longest extension cord.
• She will have wi-fi, hi-def and cable television with over 200 channels; my dorm had a rabbit ear-ed black and white TV that played three Syracuse stations.

Then again, my parents paid $5,500/year in tuition, etc.; Maria and I will pay $55,000.00. Why is it that I feel I have been shortchanged twice?