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New York Family Law Blog

Same sex divorce may require more careful planning

When the United States Supreme Court ruled that gay marriage was entitled to the same considerations under the constitution as heterosexual marriage, that also included the rights of these couples to dissolve a relationship that is no longer viable. However, those considering the process of obtaining a same sex divorce may benefit from careful planning before starting the process. Every state has its own laws regulating divorce, and New York residents can seek more information regarding how this process will work for them.

According to recent statistics, the rate for divorce for older couples has steadily increased. However, the rate for divorce among same sex couples is only about half that for opposite sex couples. In spite of a lower divorce rate, there may still be other considerations for these couples based on the fact that same sex marriage has not been recognized for as long and therefore may not benefit from some of the rules.

Senator Chuck Grassley wants project looked into for EB-5 fraud

An estimated 80 percent of foreign investments into real estate development projects here in New York and throughout the country are provided by primarily Chinese investors. In exchange for these monies, many of these foreign nationals are hoping to qualify for a green card through a visa program. Unfortunately, this particular program has often been investigated for suspected EB-5 fraud.

Senator Chuck Grassley recently expressed concerns that a company once owned by an advisor in the current administration is involved in possibly fraudulent practices. The project, One Journal Square, is being promoted by both the United States Immigration Fund (USIF) and an immigration company based in China. In literature reportedly produced for the project, investors were allegedly promised that their investments are safeguarded, and green cards were also guaranteed. According to the senator, both of those statements are forbidden. 

Don't let your demise end in trust and estate litigation

The old expression that the only things that cannot be avoided are death and taxes may be rolled into one when it comes to preparing your will and other planning documents. As you are settling on the best options for your heirs, it may be a concern that a disgruntled relative may challenge your decisions. New York residents may worry that their plans could wind up in trust and estate litigation.

Regardless of whether you spend hours or weeks agonizing over the perfect estate plans, any relative who has held on to a grudge over a long-ago dispute could seek to derail all of your efforts. Often times, it isn't even the decisions you made in your wills or trusts -- it could simply be that someone is nursing hurt feelings over a long-forgotten dispute. There are also situations that may give rise to confusion over what your intentions may have been when drafting your plans.

Getting married? Same-sex couples need prenups, too

Since the U.S. Supreme Court opened up the possibility of marriage for same-sex couples, they have made their unions legal through marriage here in New York and elsewhere. As time passes, however, same-sex couples have begun to realize that they take the same risk as all married couples do -- the possibility of divorce.

If you and your partner decide to marry, you may want to consider a prenuptial agreement to protect your interests in the event that your marriage doesn't last. It may not be romantic, but if you come to your marriage with assets, debts or children, it's something to carefully consider.

A Letter of Final Wishes might avoid trust and estate litigation

When New York residents think of estate planning, it is likely that wills, trusts and taxes are the first things that come to mind. Indeed, these documents may even help prevent the possibility of trust and estate litigation. However, there is one other item that may help heirs to understand some of the reasons behind their benefactors' final plans.

Some professionals recommend that a Letter of Final Wishes be an integral part of estate plans. This missive is not a legal document nor is it required, but including one may go along way in helping loved ones to navigate the rest of the formal plans. These letters could be used to address the reasoning behind why one heir may have received a disproportionate share of an estate or assets. It may also include the location of where these legal documents are stored for safekeeping if that information was not shared previously.

Court in same-sex divorce recognizes woman as husband and father

In spite of the United States Supreme Court's ruling in 2015 that gay couples have the same rights as heterosexual couples, there are still states and lawmakers who are resistant to this idea. However, many judges, especially here in New York, are choosing to support the constitution when granting a same-sex divorce. One court took another step when it granted a woman the legal designation as husband and father.

The case involved two women from another state. At the time of their marriage in 2014, their state did not yet recognize these unions as legal. In 2015, the couple had a child through artificial insemination. By early 2016, the couple was in the divorce process. As the divorce was progressing, law makers in the state were attempting to pass a law that would hold the definition of husband and wife to their 'natural' definition as the one spouse's attorney argued that her spouse was a female and therefore could not be considered the husband.

Green card for same-sex spouse is aspect of family law

When the Defense of Marriage Act was the law of the land, it prevented same-sex partners from applying for a green card for their non-resident spouse. However, since that law has been overturned, it is now possible for a green card to be issued in these circumstances as long as certain conditions are met. New York residents who are in a same-sex marriage and need information can get help with this aspect of family law vis-a-vis immigration issues.

As long as one spouse is a U.S. citizen or holds a valid green card, a same-sex spouse can apply for his or her own green card. The legal resident must file a form I-130, which is a petition for an Alien Relative. This form must be accompanied by other supporting documentation, including photographs, affidavits and marriage license, among other information. Form G-325A must also be filed, one for the resident and a separate one for the spouse.

Judge to skip cases involving selected family law matters

In 2015, the United States Supreme Court ruled that same sex marriages are protected by the U.S. Constitution. Those entering into these unions are entitled to the same rights and protections as those in a heterosexual marriage. In spite of that ruling, there are apparently still some pockets of the country where judges are resistant to hearing cases involving certain family law matters. While New York residents enjoy a welcoming environment for all, not every state is the same.

Recently, one judge in the middle of the country announced that he would be excusing himself from certain cases that come before his court. He stated that he would not be presiding over cases involving gay adoptions. Reportedly, it is against his belief that such a household is the best setting for raising a child. He holds this personal opinion in spite of the fact that the state does allow such adoptions and that there are many children who are in need of a loving homes.

Some senators want to kill visa based partly on EB-5 fraud

Wealthier immigrants have an option for entry into this country through one visa program in particular. However, that visa program is now facing potential extinction based in part on concerns that EB-5 fraud is widespread. New York has benefited from many projects that were completed through the funding of these investors. 

Lawmakers were scheduled to decide on the fate of this program by the end of April. They could choose to extend it as is until the fall, or they could make revisions and continue it for the next several years. There is opposition to allowing the program to remain as a part of the immigration visas. Two of the most vocal critics of the program are Senators Diana Feinstein and Chuck Grassley. Both lawmakers have complained that this visa gives an unfair advantage to those who are able to make the required minimum investment of $500,000.

Same-sex parents may benefit from adoption info

Though you may have always wanted to have a child, as a member of the LGBT community, you may have always found this prospect out of reach. Even if you were able to have a surrogate or give birth to the child yourself through sperm donation, the idea that your partner or spouse could not legally claim the child may have left you feeling disappointed. However, you and your spouse may have the ability to go through proper legal channels in order to ensure that you both have legal parental status.

You may wish to remember that even though the Supreme Court legalized same-sex marriage, same-sex parents could still face issues regarding any children they have. Even in cases where the child was born after marriage, the non-biological parent may not have legal parental status. Therefore, couples may wish to have the non-biological parent legally adopt the child.