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...

Statutes of Limitation – Civil Defamation

Many people are familiar with the term “Statute of Limitations” from having seen someone mention it on television or in a movie. However, seeing it on television or in the movies usually just tells the viewer that Statutes of Limitation exist, but not how to actually use it in a particular situation. The short answer is that a Statute of Limitation is the time period within which a case — civil or criminal — has to be brought against a defendant. If the Statute of Limitations passes without the case(s) being brought, the defendant can claim the lapsed Statute of Limitations as an affirmative defense. In other words, the defendant can say that even if everything alleged in the case is true, there’s no way for the plaintiff or prosecution to win. The longer answer is that in order to use the concept of Statute of Limitations in the real world, you have to know the answer to three questions: what is the statute of limitations that applies to a given situation? when does the statute of limitations — whatever it happens to be — actually start? under what situations — if any — can the statute of limitations be paused so that the plaintiff or prosecution has more time? Shockingly, TV shows and movies don’t answer these questions. Questions 1 and 2 are fairly straightforward to address. Question 3 is more complicated and requires discussing something called Tolling and what needs to happen before Tolling can be done. In this first post on Statutes of Limitation, I’m going to talk about the answers to Question 1 and 2 above...

Motion Practice – Motion to Set Aside

One of the big parts of litigating a case is doing Law and Motion practice. In a nutshell, this is the process the parties use to ask the court to make a decision. The process of asking is called “moving the court” for a particular decision or result, hence the term “motion practice.” One kind of motion is called a Motion to Set Aside a judgement or order of some kind, including a default judgment. Under California state law, the governing statute is going to be Code of Civil Procedure section 473(b) which states as follows: "The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. However, in the case of a judgment, dismissal, order, or other proceeding determining the ownership or right to possession of real or personal property, without extending the six-month period, when a notice in writing is personally served within the State of California both upon the party against whom the judgment, dismissal, order, or other proceeding has been taken, and upon his or her attorney of record, if any, notifying that party and his or her attorney of record, if any,...