Should I Mediate My Divorce?

When people are facing a divorce, they must decide which way they want to proceed.  Do they want to litigate the matter or try to work things out without spending years in court?  When considering a way to resolve the matter without resorting to protracted litigation, mediation is one of the most effective methods of negotiating a divorce settlement while still protecting one’s rights.

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In divorce mediation, you and your spouse (with or without attorneys) 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’s role is not to make decisions for you.  Rather, the mediator is there to act as a facilitator in helping you and your spouse determine what is best for you both going forward (and your children, if there are minor children involved).

Mediation can be incredibly effective and should be considered by anyone who is contemplating and/or already involved in a divorce.   The benefits of divorce mediation include:

  • The cost of mediation is far less than going to court;
  • The mediation process is normally much faster than a contested divorce;
  • Most mediations will lead to the resolution of all of the issues present in your divorce;
  • Mediation is confidential, allowing the parties to speak freely about the various issues they are concerned with;
  • You and your spouse are in control of the outcome of your divorce, as opposed to leaving the various issues in the hands of a judge who will seal your fate;
  • You can still have a lawyer give you legal advice if you wish;
  • If there are minor children, you will avoid having them involved in the legal process, which can be very taxing on them;
  • Since the settlement agreement is reached voluntarily by you and your spouse, it often leads to fewer conflicts in the future (regarding visitation, support, custody, etc.) than if decisions are imposed against one’s will by a judge.

If both parties come to a mediation with a good faith desire to resolve their differences, there is a good chance that the mediation will prove successful.  Even cases that seem impossible to resolve at the beginning have resulted in a settlement so long as everyone is committed to the process.  Even if you and your spouse may not agree on certain issues, it is still worth giving mediation a try before heading off to court.   You have nothing to lose and everything to gain.

If you are interested in exploring the possibility of divorce mediation, please contact Overland Law & Mediation Firm for a free consultation.

Jury Demand Rules Applicable to New York Supreme Court

When handling a civil litigation, it is important to understand the rules particular to the New York Supreme Court vis-a-vis demanding a jury trial.  Here are the rules in brief:

Any party may demand a trial by jury by filing a Note of Issue containing a jury demand. CPLR 4102(a).

If the note of issue does not contain a demand for trial by jury, any party served with the note of issue may demand trial by jury by filing a written jury demand within fifteen (15) days of service of the note of issue. CPLR 4102(a).

If a jury demand as to some but not all of the issues in the case is filed, any party served with the demand has ten (10) days to file a supplemental demand seeking trial by jury of additional issues. CPLR 4102(b).

When it appears through the course of a trial by the court that the relief required, although not originally demanded by a party, entitles the adverse party to a jury trial of certain issues of fact, the court will give the adverse party an opportunity to demand a jury trial of those issues and set a time limit for the making of such a demand. Failure to make a demand within the time specified by the court shall be deemed a waiver of the right to jury trial. CPLR 4103.

Jury Demand Rules:

Unless it is contained within the note of issue, or a note of issue has already been filed in the case, a jury demand will not be accepted for filing . CPLR 4102(a).

Any party may make a jury demand as to any issue of fact legally eligible for trial by jury. CPLR 4102(a).

Unless the party demanding a jury trial specifies the issues to be tried by the jury, the demand will be deemed to apply to all issues legally eligible for trial by jury. If a trial by jury as to part of the action is filed any other party may request trial by jury of additional issues by filing and serving a jury demand for the additional issues within ten (10) days of service of the original jury demand. CPLR 4102(b).

Unless otherwise ordered by the Court, whenever a trial by jury is demanded for less than all issues, the Court will conduct a bench trial on all issues of fact as to which a jury trial was not demanded. Only if the determination of these non-jury issues does not dispose of the case, will the Court empanel a jury to try the remaining issues as to which a jury has been demanded. Uniform R. 202.40.

If no party to the action files a jury demand, whether in the note of issue or otherwise, the right to trial by jury is deemed waived by all parties. CPLR 4102(a).

Once a request for a jury trial is made, a party may not withdraw a jury demand without the consent of all other parties to the action, whether or not those parties sought trial by jury. CPLR 4102(a).

These are the general rules set forth in the CPLR but it would be advisable to review the individual rules of the judge to which your case is assigned regarding the presentation of jury demands.

Workers’ Compensation Insurance for Nannies or Domestic Workers in New York

If you live in New York State and employ a domestic worker who works for you for more than 40 hours a week, you must have worker’s compensation coverage for that person.  Domestic workers include chauffeurs, nannies, home health aides, au pairs, nurses, baby-sitters, maids, cooks, housekeepers, laundry workers, butlers, companions, and gardeners working in a private household.

Workers’ compensation insurance is not required if the only people who work for the household are domestic workers in a private household who individually work less than 40 hours per week for that household.  When calculating whether or not a domestic employee works more or less than 40 hours, one must include both time spent at the residence (even if the person is sleeping or taking a break) and any additional time spent off premises running errands and performing other duties for the employer.  Please consider the times when you have your nanny babysitting on date nights or caring for your child for several days while you are away.  While your domestic may normally work less than 40 hours per week, there may be weeks when the 40 hour limit has been exceeded and you have unintentionally entered the territory where workers’ compensation coverage would be required.

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But I have homeowner’s insurance.  Isn’t that enough? The answer is no.  Your homeowner’s insurance policy will not cover the nanny or other domestic if he/she sustains an accident or illness on the job.  You would need to obtain a separate workers’ compensation policy for such an event.

One exception to this rule is if you hire the domestic through an agency.  In that instance, the agency is responsible for obtaining the workers’ compensation coverage.  Still, it would be wise to confirm this in writing from the agency when you contract for this service.  You should not assume that the agency has taken care of this only to later find out that they have not.

But, what if I hired the domestic worker off the books? Even if you have employed someone off the books, you still must have workers’ compensation coverage.  When you fill out the forms, no questions will be asked about the person’s identity and no proof of their immigration status or social security number will be required.

What happens if you do not have workers’ compensation coverage for a domestic worker and they become injured in a workplace accident or develop a work-related illness? If the worker makes a claim, you could be held responsible for the payment of the employee’s medical bills, for the reimbursement of lost wages and you may be subject to fines for not having workers’ compensation coverage.

The cost of a workers’ compensation policy for a nanny or other type of domestic is de minimis compared with the potential expense you could incur should you be faced with such a claim.   Needless to say, this is something that should be explored preemptively since obtaining insurance once a claim has been made will not help you with respect to that claim.

To arrange a free consultation with Overland Law & Mediation Firm, call: 212-475-2552 or e-mail us today at info@overlandlawfirm.com.

LOCAL STEM CELL DRIVES AIM TO SAVE 4 YEAR-OLD JAYDEN ROLL’S LIFE

Jayden Roll is a playful, energetic 4-year old girl from Montreal, Canada who loves life. On February 11th, after a few days of extreme fatigue and headaches, tests revealed her blood levels to be abnormally low. A bone marrow biopsy revealed that her bone marrow was failing and she was diagnosed with myelodysplastic syndrome (MDS), a rare blood disorder that can progress to leukemia. Jayden has been living off of blood transfusions while doctors are trying to come up with a sustainable treatment for her. Her battle has just begun.  In order to survive, Jayden will need a stem cell transplant in the coming weeks.

On April 22nd, from 4:00 p.m. to 8:00 p.m., a stem cell registration drive will be hosted at the 92nd Street Y in Manhattan (1395 Lexington Avenue at 92nd Street) and on May 5th from 1:00 p.m. to 5:00 p.m. a stem cell registration drive will be hosted at Congregation Rodeph Sholom (7 West 83rdStreet). The drive will take place to register potential donors to the Be the Match National Marrow Donor Program, benefiting patients suffering from various blood cancers and diseases who are in need of a stem cell transplant. The goal is to expand the donor database and provide patients with better chances for survival. Identification is required for registration at the drives.  A simple swab from the inside of the cheek is all it takes to determine if one is a match.

I, like so many people, thought being a bone marrow donor was a dangerous and painful process where the doctor inserts a needle into your pelvic bone to extract bone marrow. That is not the case.  Nowadays the majority of transplantation procedures utilize stem cells that are collected from peripheral blood, much like a simple blood donation.

“This is truly the most terrifying thing a parent can ever hear about their child,” said Kelly Goodman, Jayden Roll’s mother. “We are actively focused on raising awareness about blood cancers and finding Jayden and others a match because this is her and their best chance at survival.”

The battle belongs to Jayden and the many American and Canadian patients like her. In recent weeks, it has also become the focus of over 200,000 people in Canada and the United States. Through the efforts of an expansive and international team of volunteers, the fight for Jayden has become a social media success story. Jayden has captured the attention of hundreds of thousands on Facebook, has athletes and celebrities tweeting, and has just received an invitation for her family to join “An Evening with Oprah” in Montreal. As a result, last week’s Montreal donor registration drive broke records with their attendance.

Patients like Jayden are most likely to find a donor in a young man aged 18-35, as stem cells from young men provide fewer chances of complications post transplant. People between the ages of 18-44 and in general good health are eligible to be screened and join the Be the Match registry for Jayden and other patients in need.

For more information, visit www.cureforjayden.caFacebookTwitter and/or to schedule an interview with Warren Roll, Jayden’s father, please contact: Jennie Schwartzman-Takefman at 917-428-8643, jennieschwartzman@gmail.com.

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Firm News

We are pleased to announce that Gillian Overland has been named one of New York City’s Top Women Attorneys and one of New York’s Top Rated Lawyers.

Is Divorce Insurance the Prenup of the Future?

Please check out my guest post on the insurance website, Coverhound, where I explain the difference between divorce insurance and prenuptial agreements.

How Effective is the Facebook Privacy Notice?

Over the past several weeks, I have noticed numerous people posting the following notice to their Facebook walls:

In response to the new Facebook guidelines I hereby declare that my copyright is attached to all of my personal details, illustrations, comics, paintings, professional photos and videos, etc. (as a result of the Berner Convention).

For commercial use of the above my written consent is needed at all times! (Anyone reading this can copy this text and paste it on their Facebook Wall. This will place them under protection of copyright laws. By the present communiqué, I notify Facebook that it is strictly forbidden to disclose, copy, distribute, disseminate, or take any other action against me on the basis of this profile and/or its contents. The aforementioned prohibited actions also apply to employees, students, agents and/or any staff under Facebook’s direction or control. The content of this profile is private and confidential information. The violation of my privacy is punished by law (UCC 1 1-308-308 1-103 and the Rome Statute).

The following is an explanation as to why this notice will not have the desired effect of exempting users from Facebook’s “Data Use Policy”, to which every user agrees upon acquiring a Facebook account.

The first thing that one must note is that by acquiring an account on Facebook, each user is entering into a contract with Facebook.  By signing up, you are agreeing to the legal terms and conditions that are set forth in Facebook’s agreement.  This agreement states in pertinent part:  For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.

The agreement goes on to explain that, even once you delete content, it may remain in backup copies (thus qualifying the statement that the license ends upon your deletion of your account) and it also states that Facebook’s IP license does not end by deleting your account with respect to items that are shared with others.  For example, if User A sends an email to User B on Facebook, User A’s deletion of his/her account does not terminate Facebook’s license to the contents of that email.  For a more complete understanding of the rights a user relinquishes upon signing up for a Facebook account see the Data Use Policy and the Statement of Rights and Responsibilities on Facebook’s website.

In simple terms, one cannot avoid the terms of a contract by placing a notice stating that it is not bound to the terms he/she freely entered into.  One might argue that Facebook’s contract is one-sided (and thus arguably a contract of adhesion) but until someone challenges Facebook’s user agreement on that basis, it would be safe to assume that the user’s relinquishment of his/her IP rights stands and no notice placed on one’s timeline will change this fact.

It also should be noted that the reference made to the UCC does not apply to the circumstances at bar.  The UCC (the Uniform Commercial Code) applies to sales of moveable goods, which includes commodities like rice, alcohol, cars, etc. but does not apply to the sale of land, services, stocks, etc.  A contractual agreement with Facebook does not fall within the perview of the UCC.  Furthermore, UCC Section 1-308 relates to the notion that one may agree to certain terms in a contract “under protest” or “without prejudice” so that the party is reserving its rights to dispute certain aspects of the agreement later.  Aside from the fact that the UCC would not apply to a contract of this nature, one could argue that an attempt to reserve one’s rights can only be asserted at the time a contract is entered into, not post-facto.  Here, the user has entered into a contract with Facebook without reservation and is now attempting to narrow the rights that it relinquished by posting a notice on Facebook after-the-fact.  Simply put, that just won’t work.

Reference is also made to the Rome Statute, which similarly does not apply.  The Rome Statute is the international treaty that established the International Criminal Court, thus allowing the ICC to investigate and prosecute core international crimes, such as genocide, crimes against humanity and war crimes.  While some may find their Facebook postings to be of great importance, one can safely assume that Facebook’s use of their copyrighted materials would hardly amount to a “core international crime.”

In short, by signing up for Facebook, the user has relinquished certain rights to his/her intellectual property. Placing a notice like the one set forth above will do nothing to change this fact.  If you are concerned about your intellectual property rights vis-a-vis the information you have shared on Facebook, the only realistic option is to delete your account.  However, do keep in mind that Facebook will retain its intellectual property license to some of the information that you have shared with others.

In closing, this is a case of user beware and no notice is going to shield you from the risks you are taking when posting items on Facebook.

What is a Confession of Judgment?

A Confession of Judgment is a written agreement, which is entered into between a lender and a borrower. Simply put, the idea behind this agreement is that the borrower is confessing to owing the money at issue and is conceding that a judgment against him/her is warranted due to his/her failure to pay the debt under the terms of a loan agreement.  As soon as the borrower defaults on his/her payment obligation, the lender can go to court, submit the Confession of Judgment and the Court will then enter a judgment for the amount owed.

A Confession of Judgment differs from typical civil debt collection actions in that the borrower essentially waives his due process rights to a trial and permits the lender to proceed directly to a Judgment without having to submit evidence to the Court, with the Court holding a hearing, which might otherwise have allowed the borrower to present a defense or even giving the borrower notice that the lender intends to enter the judgment.  This means that the lender can obtain a judgment in a quick, easy, and cost-effective way while preserving the priority of the lender’s lien.  This type of agreement is an attractive option for lenders since it allows the lender to avoid the time, cost, and expense associated with normal civil actions.

Once the Confession of Judgment has been entered by the Court, the delinquent borrower will receive a notice alerting him/her that the Judgment has been entered.  The lender can then begin collection efforts within 30 days.

In sum, a Confession of Judgment clause in a commercial loan or lease agreement (or a Confession of Judgment as a stand-alone agreement) should not be taken lightly.  If you are a borrower and you have fallen behind on your loan payments, please be aware of the severe consequences explained above in the event the lender or lessor elects to enforce a Confession of Judgment.  Conversely, if you are a lender or lessor, you should consider obtaining a Confession of Judgment from the borrower so as to provide you with a cost-effective means of securing a judgment in the event of default.

Top Ten Reasons to Mediate

1. Mediation helps parties resolve disputes quickly.

2. Mediation is fair and neutral.

3. Mediation is confidential.

4. Mediation improves communication.

5. Mediation saves time and money.

6. Mediation helps to uncover the real issues between the parties.

7. Mediation allows parties to avoid the risks and expense of litigation.

8. Mediation allows the parties to come up with creative solutions to their dispute that would otherwise not occur through traditional litigation.

9. Mediation lets you create your own solution and allows you to control the outcome of the dispute.

10. Mediation ensures that the parties get a ‘reality check’ about the strengths and weaknesses of their claims/defenses.

Why Sign a Prenuptial Agreement?

A prenuptial agreement is a contract between two people who are contemplating marriage.  Prenups aim to set forth exactly how assets will be distributed in the event of divorce or death.  Prenuptial Agreements ensure that a couple’s property is distributed and/or disposed of according to the parties’ true intentions, without leaving it up to the laws of the State in which the parties reside.

The following list contains just some of the reasons why a prenuptial agreement may be right for you:

1) Protecting your assets from your spouse’s creditors:  If your spouse has incurred substantial debt before you marry, (i.e. school loans or business loans), a prenuptial agreement can be tailored so as to protect your assets from your spouse’s creditors.  This can be accomplished by your spouse agreeing to indemnify you for any damages or losses you incur as a result of his or her debts and/or your spouse agreeing to waive any claims against your assets in order to pay off his/her debts.

2) Retirement Plans:  In New York, the law is that all benefits, which are part of a spouse’s retirement plans, to the extent that benefits accrued during the marriage and prior to the commencement date of the divorce action, are subject to equitable distribution (to be divided based upon a formula which factors in the length of marriage, etc.)   A prenuptial agreement would be beneficial to you if you wish to designate any of your retirement plans as separate property so that your spouse cannot obtain a share of the plan in the event the marriage dissolves.

3) Estate Planning:  A common reason to get a prenup is to protect the interests of children from a prior marriage so as to ensure that they receive an inheritance upon your death.  At least in New York, a significant portion of assets may go automatically to your spouse upon your death.  So, in order to ensure that a portion of your estate goes to someone other than your new spouse, you may want to execute a prenuptial agreement, which includes language that your spouse waives the right to challenge your will.

4) Cost:  Yes, a prenup may seem costly to draw up but it is pretty much guaranteed that a prenup will prove far less costly than litigating a contested divorce down the road.  A prenuptial agreement can help lessen the potential for conflict by clearly identifying the parties’ separate property and defining the parties’ rights to marital property.

5) Separate Property:  A prenuptial agreement allows both you and your spouse to protect your separate property from being converted into marital property and thereby subject to equitable distribution in New York.  Otherwise, if you own an asset pre-marriage and sell it once you get married, the proceeds from the sale may become marital property.  Separate property may also be deemed to have been converted into marital property if it is “commingled” with joint property during the marriage.  Another thing to note is that even if you do everything you can to keep your separate property separate, without a prenuptial agreement, the increase in value in your separate assets during the marriage will likely be considered marital property and subject to division upon divorce.  A prenuptial agreement can help identify each spouse’s separate property and can spell out how this property, and any increase in its value, shall remain separate.

6) Spousal Support:  If you earn much more than your partner, a prenuptial agreement can be used to limit the amount of spousal support that would be payable in the event of divorce.  On the other hand, just as a prenuptial agreement can be used to protect a spouse who is well-off, a prenup can also be used to ensure that the partner who is financially weaker is protected.  For example, if you plan to quit your job to raise children, a prenup can be useful in protecting you against the negative impact this may have on your individual wealth and income.

7) Protecting Your Business: If you own all or part of a business, without a prenuptial agreement, when your marriage ends, your spouse could end up seeking to own a share of your business.  If you have business partners, they most likely do not want this to happen.  And, if you own the business on your own, you may not want to be in a situation in which your estranged spouse is seeking to become your business partner.  Another scenario worth mentioning is when you and your spouse own a business together upon entering into a marriage.  A prenup can help map out what will happen with the business in the event of divorce so that one spouse cannot seek to dissolve the business, eject the other spouse from the company or generally contest ownership of the business in a divorce.

Many couples are reluctant to enter into prenuptial agreements because they seem unromantic and generally at odds with the couple’s sentiments during the months leading up to their nuptials.   However, the benefits of a prenuptial agreement can be substantial and should not be overlooked.

Also, signing a prenuptial agreement may actually strengthen your relationship. While people often imagine that negotiating a prenup leads to conflict, discussing your finances may actually improve the quality of your relationship and support good communication during your marriage. Even if you decide not to sign a written prenuptial agreement, having an honest discussion about your money and property can help you avoid miscommunications and conflicts in the future.  Keep in mind that you and your partner will have to discuss money at some point.  If you feel that your relationship is strong enough to withstand this type of conversation, there’s no time like the present.