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Real Estate & Family Law Blog

Certificates of Occupancy

When you purchase a property, you want to make sure that the structures and improvements that have been made to the property were done with all necessary permits and inspections that the city, town, or village requires. The standard New York Contract of Sale for residential transactions contains the following language (or language to this effect): The delivery by Seller to Purchaser of a valid and subsisting Certificate of Occupancy or other required certificate of compliance, or evidence that none was required, covering the building(s) and all of the other improvements located on the property authorizing their use as a one family dwelling at the date of Closing (or multi-family dwelling if that is the case on a particular transaction). This is a simple but important provision and is put in to protect the buyer from taking a property that has improvements or additions made…Read More

New Maintenance Laws Now Effective in New York State

The New Maintenance Laws have greatly effected the way alimony (termed “maintenance” in NY) is handled in New York State. The new law, which went into effect on 01/25/2016 throws out the former way the Courts determined alimony or maintenance and had done so for decades. The Courts used to weigh a number of factors and make a discretionary determination concerning the amount and duration of alimony payments that was appropriate for the case at hand. The determination considered multiple factors (about 20) including the length of marriage and the amount of time the recipient of maintenance would need to become self-supportive. The new maintenance law in New York has replaced this discretionary analysis with a mathematical formula that is similar to the child support calculations utilized in New York in the sense that each formula is based on the two parties’ respective incomes and…Read More

Does NY recognize common law marriage?

The short answer is: NO… However, as with most legal issues, there is no black and white. The NY Courts have stated that without a marriage – there will be no recognition of an implied contract. This is a huge impediment to someone seeking any sort of support or a share of property based on a romantic relationship that is not consummated by marriage. The highest court in New York – the Court of Appeals – stated in Morone v. Morone (1980) that it is not reasonable to infer an agreement to pay for services rendered when the relationship of the parties makes it natural that the services were rendered gratuitously. The Court further stated that it is hard for Courts to sort out intentions of parties and provide awards based on conduct carried out within private and non-contractual relationship. Contrast that with marriage, which…Read More

Stolen Proceeds Distributed During Divorce

If a spouse receives assets during a divorce action and the assets turn out to be proceeds from fraud or theft, should the spouse be entitled to keep those assets? Or should the Courts step in and give back the money to innocent victims of fraud? While these situations may seem farfetched, Courts have increasingly been faced with these questions. The infamous Bernie Madoff ponzi scheme is probably the most well known financial scandal of late. However, there are many other recent financial scandals, one of which recently intersected with New York Divorce Law. New Yorkers Paul Greenwood and Stephen Walsh allegedly ran a fraudulent commodities trading company, WG Trading Investors. Starting in 1996, Greenwood and Walsh used the funds as their own “piggy bank” and misappropriated over $550 million from their clients. The firm’s assets were frozen and in 2009, the SEC filed a…Read More

New York Real Estate Purchasers: You Must Understand the Mortgage Commitment Contingency

What is the Mortgage Contingency Clause? The mortgage commitment contingency is a clause in standard residential real estate contract used in the greater New York City area that makes the purchaser’s obligation to purchase contingent upon being able to obtain a mortgage commitment from a lender. This clause affords protection in that the purchaser has the right to cancel a real estate contract and obtain the return of the down payment if the buyer is unable to obtain the commitment within a certain amount of time.  The purchaser must, however, comply with the notice requirements in the contract of sale.  The standard mortgage contingency clause also affords the seller the right to cancel the contract if a commitment has not been accepted by the purchaser by the commitment date specified in the contract. While this seems simple enough, the rights and obligations of the purchaser…Read More

The Legal Process of Selling Your Home or Property

[Please note that local customs and practices vary location to location within New York. For the NYC and surrounding areas, including Westchester County, the following summation should be useful:] So you have listed your home for sale and you have an accepted offer! Now what? The next step is for you or your attorney to draft a Contract of Sale to make the buyer’s intention of purchasing your home official. Your real estate agent will gather the critical information and terms and send your attorney a brief document referred to as a “Deal Sheet” or “Memorandum of Agreement”. This will enable your real estate attorney to draft the Contract of Sale and provide the Contract to the buyers’ attorney. Other documents you should send to your attorney at the outset include: The previous Deed of Sale showing how title to the property is held; Any…Read More

Explaining Closing Adjustments in a Real Estate Transaction

What are those confusing numbers that take place before the closing and at the closing that lawyers and title companies refer to as “adjustments” or “closing adjustments”? They are really not as complicated as they first appear. The main adjustments in your average home sale is for taxes. Depending on the town, village, or city that you live in, you may pay a number of different taxes during the course of the year. They are generally referred to as “real estate taxes” because the amount you pay is tied back to your property and its assessed value. However, these real estate taxes often consist of sub-sets of taxes such as School Taxes, Town/Village Taxes, County Tax, Sewer Tax, etc. And sometimes a few of these taxes are lumped together – again, it really depends upon the municipality in which you live. To make matters a…Read More

Custody Case: The Forensic Mental Health Evaluator

In a contested custody case, often the Court will appoint a neutral mental health evaluator to aid the Court in determining various parenting issues and what type of custody arrangement is in the best interests of the children. This expert is usually a psychologist or psychiatrist and is often referred to as “the Forensic Expert” or “the Forensic”. The Forensic will meet and interview the parties and often conduct psychological testing such as the MMPI-2: the Minnesota Multiphasic Personality Inventory, a very widely used test of personality and the existence of possible mental disorders. The Forensic will usually meet with the children as well and talk to them about the custody issues. The Forensic will often observe each parent and how they interact with the children. Most Forensic Evaluators will meet with each party 3-5 times and meet with the children 2-3 times depending on…Read More

Do I need a Prenuptial Agreement?

That is a good question to ask yourself before you walk down the aisle… “Prenups” are not for everyone and they certainly are not the most romantic subject to bring up with your fiancé. However, they can be a powerful and useful planning tool before you get married. In fact, prenups can be utilized for spouses to be who do not have any significant assets at this time but expect to acquire assets in the future. In a prenuptial agreement, you can “carve out” certain current or future assets as separate property. For example, a prenup can say that any property held or titled in his/her separate name will be considered separate property and will not be subject to equitable distribution (will not be divided at trial) and that any property held or titled in joint name will be considered marital property subject to equitable…Read More

Keeping Your Separate Property Separate

Equitable distribution is the division of marital property in a divorce. Equitable distribution law is premised upon a marriage being an economic partnership. Marital assets are broadly construed, while separate assets are narrowly construed, as exceptions. An asset is considered separate property, under New York Domestic Relations Law Section § 236 Part B(1)(d) if it is: property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse; compensation for personal injuries; property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse; property described as separate property by written agreement of the parties pursuant to subdivision three of this part. Martial property, only, is distributed during equitable distribution. It is presumed that assets…Read More

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