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Comparing and Contrasting New York and California Property Division Methods

As mentioned previously on this blog, California is in the small group of US states that use the community property method of property division when it comes to dividing items during a divorce. If you are involved in or around a California divorce case, you know that the terms “community property” and “separate property” are used frequently. As also mentioned previously, the former is divided equally during a California divorce while the latter is not. If you’re interested, community property in California is defined in section 760 of the California Family Code while separate property is defined in section 770(a) of the California Family Code. New York, on the other hand, is not a community property state, but rather uses a property division method called Equitable Distribution. New York is similar to most states in the US in that only about 10 states (mostly in the western US and southwestern US) use the community property method. Unfortunately, this distinction can become confusing to talk about because New York also uses the term “separate property” like California does. However, in place of “community property,” New York uses the term “marital property.” Terminology aside, what also makes it confusing is that the definitions for separate and marital/community property look very similar. For example, in New York, “separate property” is defined in New York Domestic Relations Law section 236(B)(1)(d) as: property acquired before marriage or property acquired by bequest, devise, descent, or gift from someone other than the person’s spouse; compensation for personal injuries; property acquired in exchange for or the increase in value of separate property, except to the extent this...

New York Automatic Temporary Restraining Orders in Divorces

Last time, I described the concept of an Automatic Temporary Restraining Order (ATROS) in a California divorce case as authorized under Section 2040 of the California Family Code. The idea of an ATROS is not unique to California, however. New York has it as well and that’s the subject of this blog post. Before I begin, my usual disclaimer for New¬† York content applies: I have been licensed to practice law in New York since 2012, but I do not (as of the date of this post) maintain a physical office in New York state. Under Section 470 of the New York Judiciary Law, I therefore cannot practice law in the state of New York. This post is meant to simply go over a New York statute that is publicly-available for free to any member of the public. If you have a case in New York involving an ATROS, do feel free to get in touch in the event I can make a referral for you. Anyway, that said, in my California ATROS post, I described how some marriages involve a disparity in earning power. One spouse might, for example, stay at home to raise the children while the other works a job to support the family. This can, in the event of divorce, sometimes result in a situation where the spouse who works tries to exercise an unfair advantage over the spouse who stayed home in retaliation by, for example, concealing marital property or cancelling the family’s health insurance. In California, the Section 2040 ATROS is intended to prevent this. New York has a similar ATROS under New...
New York City Gender-Neutral Birth Certificates

New York City Gender-Neutral Birth Certificates

Yesterday, there were news stories stating that a new law went in to effect in New York on January 1, 2019 allowing for birth certificates specifying a non-binary gender (i.e. not male and not female). Here are two in particular: “New York law now allows gender-neutral birth certificates” (kcra.com; January 1, 2019)“New York Rings in New Year by Offering Gender-Neutral Birth Certificates” (dailysignal.com; January 2, 2019) The headlines are misleading for this reason: It isn’t a New York state law. Instead, the law that went in to effect yesterday is a New York City law. This law was signed by New York City Mayor Bill DeBlasio on October 9, 2018 and went into effect January 1, 2019. For those interested, this new law is under the Administrative Code of the City of New York. If you want to look it up yourself, it is Title 17, Section 167.1 entitled “Sex Designation on Birth Records”. As an aside for those interested, California has a law that allows for gender-neutral birth certificates also. Called the Gender Recognition Act, it was passed as California Senate Bill 179 (SB 179) in October 2017 and went in to effect January 1, 2018. At the time, it made California the first state in the US to recognize a third gender. As usual with any blog post regarding New York, I need to make clear that while I am licensed to practice law in New York state, I don’t maintain an office anywhere in the state of New York (at least as of the date of this post). As a result, I can’t practice law there...

New York Statute of Frauds

In general, it is a good idea to have agreements and contracts in writing. A writing is generally more clear and less susceptible to jaded recollection than an oral agreement, for instance. In some instances, however, the law requires that an agreement or contract must be in writing in order to be enforceable. This requirement for a writing is called the Statute of Frauds. In California, the Statute of Frauds is in California Civil Code section 1624. In mid-2017, I made a Youtube video in which I went over California’s Statute of Frauds. I have a bunch of other videos on my Youtube channel as well. Most are California-focused because that’s where I practice primarily, but I am trying to add more New York videos. Due to New York Judiciary Law section 470, though, (see below), my New York videos are going to go over statutes and other publicly-available legal resources only. Anyway, take a look around the channel and subscribe. New York has the Statute of Frauds as well. The idea is the same — namely, that certain agreements and contracts must be in writing in order to be enforceable — but as is usually the case, the implementation varies from state-to-state. In other words, New York’s Statute of Frauds requires different agreements be in writing than California’s Statute of Frauds does. New York’s Statute of Frauds is codified in New York General Obligations Law Section 5-701. I’ll go over that section briefly, but I encourage you to take a look at the actual statute section in order to get a complete description of what agreements are covered....

New York Small Estate Affidavit Procedure

Every so often, I get questions in California about how to do a probate for someone who died but left very little or no assets. It got so frequent at one point that I made a video about it for my Youtube channel on the California process. The idea of a summary — or quick — probate process for someone who left little or no assets is not unique to California. This post discusses the Small Estate Affidavit Process for New York. As an initial matter, though, I have to clarify that I do not take cases in New York because — while I have been licensed to practice law there since 2012 — New York also requires under New York Judiciary Law section 470 that lawyers maintain a physical office within the state of New York too. I don’t so I don’t take clients or cases there. I do, however, know plenty of lawyers all throughout New York so if I can make a referral to help you solve your problem or move your case forward, feel free to get in touch. Because I don’t have an office in New York state, I have never done the NY Small Estate Affidavit Process myself so I have no first-hand experience to operate from. All of the below is simply due to my, ahem, excellent legal research skills. Anyway, that said, the applicable law for the New York Small Estate Affidavit Process is New York Surrogate’s Court Procedures Act (NYSCPA) Section 1301 and onward. (That’s Article 13, in case you need an Article). The basic idea for the New York...

Property Division in New York Divorces (NY Domestic Relations Law section 236(B))

California is a community property state when it comes to divorces. The idea of community property is not difficult to understand in the abstract — colloquially, you might have heard it as the rule that in a divorce, you get (or lose) of the stuff. See California Family Code section 2550. Property is basically put in to one of three categories: (1) stuff owned by spouse #1 from before the marriage, (2) stuff owned by spouse #2 from before the marriage, and (3) stuff that the two spouses acquired while they were married. The property in category (3) is divided in half — again see California Family Code section 2550 — while the property in (1) and (2) goes to each spouse respectively. Applying the idea of community property in the real world is not so simple. First, the spouses will argue about which category (1, 2, or 3) a particular piece of property falls in to. Second, if each spouse acquires property after they separate, determining when that property was acquired relative to the separation date can also be argued about, sometimes extensively. Third, it can often be confusing, such as when property was purchased prior to the marriage and financed or paid for partly during the marriage. Houses often fall in to this category. If you’re dealing with a California divorce where a house was purchased by one spouse before the marriage, but the mortgage was paid for during the marriage, you may be interested in something called a Moore-Marsden computation. Community property in divorces is the exception rather than the rule in the United States. The...