by Andy Chen | Apr 24, 2024 | California, Family Law, New York
In this post, I’m going to continue my comparison of how New York and California treat various topics. As with past posts, I’m hoping that you can see how laws differ between states in the US, but also have some similarities as well. The topic today is going to be the grounds or reasons upon which you can seek divorce in California versus New York. New York In my last post, I described the seven different grounds or reasons why you can seek a divorce in New York state. These are summarized in bullet point format below. The relevant statute is section 170 of New York’s Domestic Relations Law. Section 170 is quite long so I’m not going to quote it here verbatim. Please do refer to the precise text of section 170 if you need anything more than what I’m going to paraphrase below: Cruel and inhumane treatment by defendant such that it endangers plaintiff’s physical and mental well-being to remain in the marriage; Defendant abandons plaintiff for at least one year; Defendant is confined in prison for at least three years; Adultery; Spouses living apartment for at least a year pursuant to a judgment of legal separation; Spouses living apart for at least a year pursuant to a written separation agreement; or Spouses with a relationship that has irretrievably broken down for at least 6 months. California To contrast with New York, California’s grounds for divorce are much simpler. There are basically only two grounds: (1) irreconcilable differences, and (2) permanent legal incapacity to make decisions. If you’re looking at a California divorce petition, the grounds for...
by Andy Chen | Apr 22, 2024 | California, Federal, New York
In today’s post, I’m going to try and explain the concept of Discovery in civil cases and what the boundaries or scope of that discovery is. I’ll use some examples from California law as well as New York law and also some tidbits from federal law as well. Depending on the court that your case is in (for instance, California Superior Court versus US District Court), one set of rules and laws will apply, but not the other. Be forewarned, though, that the topic of civil discovery can get very, very, very complicated. Lots of specific requirements apply. It can absolutely get very frustrating. It’s similar to how taxes work and why, for instance, certain tax rules make no logical sense when compared to the real world. The vast majority of people, of course, just follow the rules when it comes to taxes and don’t bother worrying about why tax rules are the way they are. When it comes to discovery, in my opinion, a lot of these complexities are unnecessary and the whole discovery process could be made easier and more efficient without prejudice or harm to any litigant. However, it’s not up to me — at least not yet — and instead it depends on the whims and fancies of politicians and legislatures. It is what it is. Having said that, let me start with a basic definition of what “discovery” actually is: it’s the process in litigation where the various parties can seek or obtain evidence or facts that are relevant to the case. As the adage goes, each party puts all of their cards on...
by Andy Chen | Apr 20, 2024 | New York, Statutes... and stuff
Previously, I blogged about the residency requirements one has to satisfy in order to file a divorce, separation, or annulment case in the state of New York. Today, I’m going to go over another requirement you have to satisfy when filing a divorce case in New York, namely the grounds or reasons for divorce. New York’s residency requirement is described in New York Domestic Relations Law section 230 and is termed a “residency requirements” because, in most states, the requirement generally relates to living in the state in some way. The grounds requirement, though, for divorce in New York relates more to what occurred between the couple and generally involves more complicated questions than just ‘Did the parties live in New York?’ The grounds requirement for divorce in New York is described in New York Domestic Relations Law section 170. There are seven possible grounds. The plaintiff is the spouse filing for divorce. As with a generic “residency requirement”, a plaintiff need only satisfy one of the seven, but each one of the seven may have several components that all need to be met before the ground itself can be invoked. As with my residency requirement post, I’ll indicate each of the components with a letter (e.g. (a), (b), etc). (a) The defendant spouse has treated the plaintiff spouse in a cruel and inhuman way such that (b) this treatment endangers the physical and mental well being of the plaintiff so much that it (c) makes it unsafe or improper for plaintiff to continue cohabiting with defendant; (a) The abandonment of the plaintiff by the defendant for a period...
by Andy Chen | Jul 2, 2023 | Family Law, New York, Statutes... and stuff
I’ve been licensed to practice law in New York since 2012. Unfortunately, I do not maintain an office in New York. This means that I cannot take clients who live in New York due to the NY Court of Appeals‘ 2015 ruling interpreting NY Judiciary Law section 470 in the case of Schoenefeld v. State of New York, et al. That appears to be changing, though. Legislation has been passed by both the New York State Senate and, as of June 7, 2023, the New York State Assembly to repeal Judicial Law Section 470. Stay tuned for updates. Because Section 470 is still in effect, I can’t practice law in the state of New York. However, what I’m going to discuss in this blog post and all my NY blog posts that follow is information any member of the public can look up for themselves. I offer no opinion on whether the particular statute or case I go over is advisable or prudent for their particular situation. My hope is that, even though my blog posts are purely factual, my post will give the enterprising reader an idea or plant a seed for further research that they would otherwise not have had. Put simply: after reading my factual post, maybe you can do more research that didn’t occur to you before and, hopefully, be better off for it. In this post on the laws of the state of New York, I’m going to talk about the residency requirements for a divorce. A residency requirement is the basic idea that in order to file for divorce in a given state...
by Andy Chen | May 31, 2021 | New York
In this post, I’m going to go over the statute of limitations under New York law for a negligence lawsuit. As a reminder, negligence is a type of tort for which a plaintiff can seek redress by filing a civil suit, often for money. In layman’s terms, negligence occurs when the defendant does something, but fails to exercise something called “ordinary care”. In my mind, a failure to exercise ordinary care is when the defendant fails to abide by the expectations people in society assume. For instance, when you’re driving a vehicle, pedestrians will assume that you’re paying attention, using your mirrors, etc. If you as the driver fail to exercise ordinary care — for instance, you’re not paying attention because you’re texting while driving — and cause an accident, you’ll likely be accused of negligence. If you’re a plaintiff suing for negligence, you generally have to prove at least these four criteria. : That defendant owed a duty to you, That defendant breached that duty to you by, for instance, failing to exercise ordinary care, You suffered injuries or damage of some kind, and Defendant’s breach of that duty to you was the proximate cause of the injuries or damage you suffered. These four criteria are, as I mentioned, not specific to one particular state. I learned the 4-criteria version of negligence in law school. Some lawyers learn the 3-criteria version which basically combines the injury and causation bulletpoints above into a single bulletpoint that states something like “defendant’s breach of duty proximately caused plaintiff’s injuries.” What’s powerful about negligence if you’re the plaintiff — or annoying, I...
by Andy Chen | Mar 29, 2021 | California, Family Law, New York
I live and practice law in California. When it comes to divorces, California is one of nine US states that follow the Community Property system when it comes to dividing property. In theory, community property is a simple idea — namely, the general rules are that (1) whatever the individual spouses acquire on their own prior to the marriage is their own property and is not split up during a divorce, and (2) whatever the individual spouses acquire during the marriage is generally “community property” and, thus, needs to be divided 50/50 in the event of a divorce. To be clear, though, (1) and (2) are just the general rules under the California community property system. There are exceptions under which, for example, an item acquired during the marriage is still the separate property of the spouse acquiring it due to the manner in which the item was acquired. In practice, though, applying the community property system can be quite involved. Over on my Youtube channel, I put out a video a few months back going over some common problems that occur when you try to apply the idea of community property in the real world. Here is the video. If you haven’t seen my Youtube channel, I encourage you to take a look at it as I go over community property as well as various other ideas related to California law also. What I am going to do in this post, though, is try to compare Community Property to the other system — Equitable Distribution — that is in place in the other 41 US states. By the...
