Please take the time to read my Newsletter where I discuss my areas of law and have in detailed discussed some of my cases. If you ever need to contact me, please call my office at (516) 455-6483. 

Why Choose A Separation Agreement Instead of Filing for Divorce Right Away?

Here’s the short answer to the above question:  a Separation Agreement is the best remedy for a couple that does not want to get divorced right away but rather wants to begin living separate lives. In my 16+ years of practicing law & working in this extremely tricky & emotionally charged field of law, I’ve learned many lessons about divorce & Family Court practice, but none more important than the following:   each & every divorce & Family Court case comes with a unique set of personalities, different number of children (or no children), different levels & types of emotions including abandonment, jealousy, self-pity, scorn, anger, selfishness & sometimes revenge as well.  In my opinion, all of the above emphasizes the fact that each & every divorce (& Family Court) case requires that the lawyer work hard to achieve a unique situation for that particular case. You’ll never see a client blow up his/her own house (just to prevent the other party from getting his/her equitable share of that asset) in the areas of personal injury/accident cases, Immigration law, worker’s comp., medical malpractice, or any other area of law, trust me.

For an article like this, a lawyer always has to include the following required language:   prior results Do Not guarantee a similar outcome in the future. There’s no doubt that my comments may be construed as legal advice, but my thoughts are just expressions of my opinion based upon my having worked hard in these 2 very difficult areas of law for years.

So if a couple wants to begin living separately without getting divorced, why not just live apart (or even under the same roof) without actually signing a written agreement? Far & away the #1 reason I’ve seen is so that one spouse can continue enjoying medical coverage (dental, optical, etc.) under the other spouse’s plan. This coverage will continue until the document called the Judgment of Divorce has been signed by the Court. In fact, once a divorce case has been filed in any county in NY State (regardless of where the husband & wife currently live, if they live together or if one spouse has already moved out), you’ll find that many employers’ Personnel Depts./Dept. of Human Resources will refuse to allow a married employee to remove his/her spouse from the current medical plan or even to allow that employee to decrease the level of coverage for his/her spouse until that employee shows proof that a Judgment of Divorce has been signed.

In NY, anytime a divorce case is filed with the Clerk of that County & served upon the defendant spouse, the ‘Notice of Automatic Orders’ advising both spouses of what I’ve just described must be attached to the Summons & Complaint (or ‘Summons with Notice,’ an alternate & quicker way to file a divorce case). The ‘Notice of Automatic Orders’ & the 2 other required pages that are required to be attached to all newly filed divorce cases (& then served upon the defendant spouse) are marked below as pages 5, 6 & 7 (see the top middle of each page). Pages 1 to 4 are the typical contents of a Separation Agreement for a couple with at least 1 child.

In NY, once both married people have signed a Separation Agreement, it must be recorded with the County Clerk just like a real estate deed, mortgage, etc. Then after 1 year (or more) has passed, either spouse can ‘convert’ the Separation Agreement into a Judgment of Divorce. This is not a 5 minute process because it requires that additional paperwork be typed out with the correct information & properly filed with the Court, Almost the exact same paperwork that is required if either spouse had decided to file for divorce immediately instead of opting for the Separation Agreement option. My opinion is that if a couple that enters into a Separation Agreement does not have a child, Yes it might be possible for that couple to convert, meaning complete, the process of divorce on their own but it can still be tricky. But for a couple that has at least 1 child, my opinion is that it will be very difficult for either spouse to convert the Separation Agreement correctly so that a Judgment of Divorce can be signed by the Court without any delays. Let me explain why:

Perhaps the largest disadvantage of entering into a Separation Agreement is that the Supreme Court (the only Court in NY that can sign a Judgment of Divorce) does not review the Separation Agreement. In fact, No Judge/Referee from the Supreme Court even flips open 1 page in any Separation Agreement that is recorded with the County Clerk. Therefore, at least 1 year later (or more) when 1 of the spouses wants to obtain a Judgment of Divorce based on that Separation Agreement, only then does a Judge/Referee from the Supreme Ct. get the chance to review the contents of the Agreement, referring to the topics of equitable distribution, custody & visitation a/k/a parenting time, child support, life insurance for the child(ren) in case the non-custodial parent dies, the topic of emancipation all need be addressed. Then there are even Discretionary Topics that can be resolved when at least 1 unemancipated child is involved such as the ‘add-on’ expenses (summer camp, music lessons, tutoring, etc.) & other topics. I believe that even the most experienced divorce lawyers will tell you that the process of First, getting the spouses to agree on each of these topics and then Second, reducing the parties’ understanding on each topic to individually written provisions will always be an extremely difficult process.

In NY, there is no such thing as ‘suing your spouse’ for a Separation Agreement; no such case law or statute exists to achieve this. But it is true that in some rare situations, 1 of the spouses will file a divorce case but the parties will end up discontinuing the divorce case so that they can enter into a Separation Agreement. This re-emphasizes the obvious truth that entering into a Separation Agreement is 100% voluntary & cannot be forced.

In NY, the only document that officially ends the bonds of marriage is called the Judgment of Divorce, meaning that no other document in NY can officially end a marriage. A Separation Agreement does not officially end a marriage. Even the signing of the traditional written agreement After a typical divorce case has been filed (the ‘Stipulation of Settlement,’ not a Separation Agreement) does not end the marriage. In my years of practice, I’ve learned to Not use the term ‘unofficial end to a marriage’ because it just does not make sense to me. Some married people stop living together & cease all communication years & years before 1 of them finally files for divorce, so I’ve learned that a divorce case is over only when the Judgment of Divorce is signed & not 1 day before. (No document issued by the NYS Family Court can dissolve a marriage.)  

Since Separation Agreements are the exception, not the rule, between 2 married people who want to separate, they require a high level of cooperation, meaning that both parties should respect each other & be amicable during the negotiation & writing-out process. I’ve never finalized a Separation Agreement when there has been a discernable amount of hostility & tension between the spouses. It makes the process of achieving a well-written Separation Agreement all the more difficult because neither spouse nor his/her lawyer can seek Court intervention for a Separation Agreement.

Generally speaking, the attorney fees for the prep. of a Separation Agreement are much lower than those associated with the full-blown divorce process. Regarding the issue of how much time the process will take before both people finally sign it, I’ll say that in general terms, the process goes faster than the typical contested divorce process. But I’ve also seen spouses argue & bicker for months over the small details before the final version of the Separation Agreement is signed.

For example, if the 2 spouses sign a Separation Agreement (notarized as well) & the Separation Agreement is recorded, just like a Deed, on May 1, 2015, both spouses are required to wait until at least May 1, 2016 before either spouse can ‘convert’ it into a Judgment of Divorce. Once the entire ‘uncontested divorce packet’ (including the not-yet signed Judgment of Divorce) is filed with the Court, the delays for the processing time are different for each county/borough in NY. Even this topic requires a separate article, which is another reason why this area of law is so difficult & frequently not handled very well.

Getting Divorced Right Away

New York was the very last state to join the other 49 states in enacting ‘no-fault’ divorce. On Oct. 12, 2010, NY enacted a new prong (‘subsection 7’) to the statute known as Domestic Relations Sec. 170. Now in NY so long as a couple has been married at least six (6) months, either spouse can swear/affirm that so long as he/she believes that the marital relationship has ‘irretrievably broken down for at least six (6) months,’ if & only if that the spouse who files the divorce case has met the jurisdictional (‘residency’) requirements, that spouse will eventually obtain a Judgment of Divorce against the spouse. What is important to remember is that this new prong (NY DRL Sec. 170(7)) was intentionally written as a Subjective Test, meaning that so long as the spouse who files for divorce believes, in good faith, that the marriage has ‘irretrievably broken down for 6 months or more, it will be virtually impossible for the defendant spouse to defeat this cause of action so that he/she can preserve the marriage. YES it is true that prior to Oct. 2010, in rare situations a spouse who had been sued for divorce would hire a lawyer to try to get the entire divorce case dismissed. I did some research for the time period Oct. 2010 to early 2016 but I wasn’t able to find 1 successful defeat of a divorce case (by a defendant spouse) when the divorce case was filed based upon DRL 170(7).

In NY, the spouse that files a divorce case is called the plaintiff and it will cost that spouse $210 to file the divorce case (to purchase the index number). Then in NY, once a new divorce case is filed, the plaintiff or his/her lawyer has 120 calendar days (meaning including holidays & weekends) to have the defendant spouse served in person. In the first 30 days, as a force of habit I normally contact the defendant spouse on my own in order to avoid the use of a process server. Nobody wants to be served in person, by a process server, at the job or out in the public; it is a highly embarrassing & upsetting experience. But after the 1^st month if I see that the defendant spouse refuses to contact me or do anything, at that point I normally use my process server to deliver the documents.

I have much more to write about the divorce process in NY, but I realize that this article is getting very long. I hope that you’ve found this information helpful or at least interesting to read about. It’s my opinion that the areas of divorces (contested & uncontested) & the closely related area of Family Court practice are, by far, the most difficult & challenging areas of law that I’ve ever worked in. Even my high school friend whose divorce case I handled put it like this:  ‘if the lawyer gets 1 word wrong in the Agreement, he can be sued.’ And that is 1000% true.

Thank you for reading this material & I hope that you’ve found this Article to be helpful & interesting! The information & materials you see here have been prepared by The Law Office of Henry Lung, PC for general informational purposes only. None of the contents of this Article should be considered to constitute legal advice or a legal opinion.

Therefore, The Law Office of Henry Lung, PC cannot make any representation or warranty regarding any of the information contained in this Article. You should not rely or act upon any information provided in this Article without first consulting with an experienced lawyer. It goes without saying that I must disclaim any responsibility in connection with any actions that someone decides based upon your reliance upon any portion of this Article.

If you have commentary about any portion of this Article, feel free to email me at HenryLungPC@gmail.com or call me at (888) 539-2015 / (516) 248-8253.

A Miracle Outcome For A Speeding Ticket That Is Also An Example Of A Judge's Belief in Leniency & Second Chances:

Last week in Court, I represented a young, reckless man who is now the beneficiary of a miracle, the kind of miracle that hopefully will push him to get his life on track and not kill himself speeding ever again at over 100 miles/hour. Earlier this year, he was stopped for driving at One Hundred Eight (108) miles an hour on the highway (55 mph limit). First, the judge screamed at him and said that at that high rate of speed, he’s seen pictures of victims in those car crashes whose skin has fallen off their bodies. Then the judge lectured him at length and asked this young man if he wanted to enlist in the Marines. Then the case was recalled 2 times because the judge was not happy with my client’s answers. But finally the judge issued the following ruling: if and only if this young man stays out of trouble and is not issued any new moving and parking violations for the next 6 months, this ‘speeding 108 mph in a 55 mph zone’ ticket will be dismissed in its entirety when we go back to Court in mid-Dec. In my 16 years of practicing law and slogging through extremely difficult contested divorce cases, Family Court cases, representing criminal defendants before a grand jury in various felony cases, and finally trials in criminal cases involving juries (felonies and misdemeanors), I can tell you that this kind of ‘commitment’ from a Judge for this kind of obnoxious and highly dangerous behavior is as close to a miracle outcome as any that I’ve ever personally been involved in during my years of practicing law. I also had very little to do with this wonderful outcome, even if you feel that this post is about me, which it is not. This post is about the generosity, patience and kindness of a Judge who has a reputation of being very hard on ‘recidivist’ drivers, especially young kids who speed so fast that, if they crashed, the crash would most likely have killed the driver and all passengers on impact.

My client is a 20 year New Yorker of Italian-American background who does not live or work in the county where he was stopped for this high speed, meaning that he basically assured himself that any Judge would come down on him harder than if he lived or worked in that county. At 20 years old, my client already has a driving record that is several pages long and recently, he pled guilty to ‘driving while ability impaired’ (DWAI) and he’s not even 21 yet. He was also pulled over for an entirely new and unrelated moving violation (not speeding) after he got this speeding ticket. When we went to Court last week, the case was scheduled for trial and the Judge had every right to insist that the trial go forward. If convicted, this young man could have been sentenced to jail for up to 30 days, apart from having to pay a max. possible fine of $600. Also, the judge was ready to suspend his driving privileges for 90 days, what is commonly called a 'VTL 510 suspension.'

Speeding tickets are very difficult to beat because the speed of the driver is generally measured by a properly calibrated laser gun. In the practice of law, you’ll often hear lawyers promise that they will achieve this kind of result for you, that result, etc. Some people in the general public believe that by hiring a lawyer for a criminal case or for traffic tickets, their lawyer can get the entire case and/or traffic tickets dismissed. This type of belief is highly misleading and not really based upon any hard facts of ‘frequent dismissals’ and/or ‘frequent acquittals.’ If the criminal and moving/parking violations system in the US really functioned in this way, we would have mass disorder all over the place (more so than we already have) and you would have heard about these magical, almost mythical lawyers by now.

Getting back to my client’s case, the original plea bargain that the prosecutor offered my client was a reduction down to speeding 88 miles in a 55 mph zone, which carries 8 points. My client’s driving record was so bad that after his parents hired me, I urged them to have their son take Defensive Driving, which he did before we went to Court last week. Therefore, the ‘up to 4 point removal’ benefit that the Defensive Driving course offers to all drivers who are licensed in NY was no longer available to him. Defensive Driving can be taken as often as you like, but the ‘up to 4 point removal’ benefit can only benefit a driver 1 time for every 18 months. On the 3 page attachment below, you can see at the top of p. 2 that he took Defensive Driving in March, 2016 and on the same page (under ‘Tickets’), you will see the 108/55 ticket. Above it you will see the latest ticket that he was issued in Apr. 2016 for disobeying a traffic control device (2 points if he is convicted).

You can do your own survey of lawyers who handle traffic tickets, but this type of outcome for an above-100 miles per hour ticket is extremely rare. It was simply a great act of generosity and patience towards my client by a very forgiving judge. I do not believe that I will ever be personally involved in this type of outcome ever again. When I returned to my office after Court was over, I told another client (who was waiting for me) about this judge's kindness and this other client of mine said that when he was stopped for driving at almost 100 mph in his 20s, he did not get a reduction at all and got 11 points on his record immediately. Back to my client from last week, he was not granted an ‘adjournment in contemplation of dismissal’ (ACOD) because in NY, although some types of moving violations are classified as crimes (mostly misdemeanors), a very high speeding ticket such as this is Not a crime, he was not fingerprinted, etc. Also when a client is granted an ACOD, the client/defendant does not have to return to Court in 6 months’ time after the last court appearance. However, my client for this high speeding ticket does have to go back to Court in 6 months’ time to show the Judge that he has not been issued any new tickets. If he is able to do that, his ticket will be dismissed immediately, NO community service and NO fine to be paid. An ACOD/ACD, in comparison, does not work this way.

This is a wonderful example of how the legal system, as represented by 1 Judge, can give a rebellious, out-of-control young man a second chance and maybe even shock him into getting his life back on track. I would not be surprised if that is exactly what will happen. In situations like this, I’ve observed that a client will often thank his/her lawyer endlessly and view the lawyer as a hero. But the truth is that sometimes, the lawyer has very little to do with how the Judge decides to handle the case.

There is no guarantee that either I or any other traffic ticket/criminal defense lawyer can obtain this same type of result in your case or in any other case, but it goes without saying that at least 50% of so many victories in life are due to just showing up, working hard and trying our best and fighting until the very end.

Domestic Violence Cases (Not Just in New York But in General) and How These Cases Intersect with Criminal Court, Family Court and Sometimes ‘Divorce Court’

                        A recent NY Post article involving a former Victoria Secret’s model (March 28, 2016, see p. 3) gives me the chance to discuss the very broad topic of ‘domestic violence’ cases but also other issues that arise from these types of situations. In fact, the topic of domestic violence is so broad that the very same fact pattern from a domestic violence case can be litigated, in NY, by those very same parties in more than 1 Court and all at the very same time. This article focuses primarily on the NY State court system but I assure you that other states have basically the same court system and utilize the same principles. To try to impress anyone who reads this article and already knows about criminal law, I am going to discuss some basics of criminal law, Family Court practice including Orders of Protection, and how divorce cases can also provide a litigant with a separate Order of Protection, all in this same article.

 

                        The Post article describes a case that took place in the Criminal Court in

downtown Manhattan, which is officially known as ‘New York County’ in the NY State court system. I tried to combine my discussion of the criminal charges involved in this case with my discussion about Orders of Protection (in general) but it got too messy, so I had to separate the 2 topics; the material on Orders of Protection follows these next paragraphs where I discuss the criminal charges from the NY Post article. Anyway, this former model allegedly flew into a rage against her then-boyfriend by repeatedly hitting him in the face, throwing his TV remote out of the window, throwing his laptop across the room, and pushing his TV off the stand, according to the ‘criminal complaint.’ Anytime you read about a person who is accused of having intentionally damaged and/or destroyed property belonging to another person without that person’s consent, it’s virtually guaranteed that the defendant will be charged with some degree of ‘criminal mischief.’ Nowhere in the Post’s article did it say what exact degree of criminal mischief this woman was charged with. Only at the very end of the article is it stated that the total value of the property that was damaged was $2,951. Based on this amount, I’m pretty sure that she was charged with criminal mischief in the 2^nd degree, which is a D felony.

 

This case was definitely a ‘domestic violence’ situation and it resulted in the

filing of criminal charges against this woman. But if her then-boyfriend did not call the police and if the police did not find out, on their own, and arrest her, the victim could have sought help from the Family Court, namely in the form of a ‘stay away’ Order of Protection (shortened to ‘O/P’) but that would have been issued on the same day that the victim filed his ‘O’ Petition seeking an Order of Protection. Also in a typical criminal case stemming from a domestic violence situation, at the arraignment this woman’s then-boyfriend would have been issued a Temporary Order of Protection (‘TOP’), most likely a ‘stay away’ TOP. Many people will tell you that Orders of Protection are not to be taken lightly, meaning that if the alleged aggressor is accused of violating it, it will trigger a new, separate criminal case where the charge of contempt of Court will be made against the accused party. If an accused party was fortunate enough to be released on her own recognizance, meaning no bail was set, for the original criminal case, but is then charged with contempt of Court, you can pretty much count on 2 things:  A) the accused will be forcibly arrested either at home or place of employment;  and B) some amount of bail will be set by the Court at the arraignment.

 

                        In NY, the Family Court and the Criminal Court are each entitled to issue an Order of Protection to a litigant, even if it’s for the same litigant and lasting for basically the same period of time. The standard O/P that the general public is used to is a ‘stay away,’ meaning that the accused must stay away from the victim at all times, the accused cannot contact the victim’ directly or through a 3^rd party, etc. In the Criminal Court, these Temporary Orders of Protection, well over 90% of the time, command the defendant to stay away from the victim. But if the exact same domestic violence situation is litigated in either the Family Court or in an open divorce case, there is a realistic chance that the ‘TOP’ that the Court issues to the victim will be a ‘refrain’ TOP which is the other type of Order of Protection that permits the parties to be in each other’s physical presence, meaning they can live together, eat together, complain about the economy together, etc., so long as the alleged aggressor refrains from engaging in abusive, harassing and damaging conduct towards the victim. In all NY Family Court cases, the party that files any type of Petition is called the petitioner and the opposing party is called the respondent (and never the ‘defendant’). But in a divorce case, the person who files the case is called the plaintiff and the other spouse is called the defendant.

 

                        Getting back to the Post’s article, let’s say that besides not stating the exact degree of the criminal mischief crime that was charged, assume that the article also did not state the total value of the personal property that was damaged. So long as the combined value of the items that were damaged (the TV, the remote, laptop, and other items) was more than $250 dollars but did not exceed $1,000, this woman would have been charged with criminal mischief in the 3^rd degree (NY Penal Law Sec. 145.05). There are 2 prongs of the crime of criminal mischief in the 3^rd degree and since the 1^st prong addresses the intentional damaging/ destruction of a motor vehicle, I will not discuss it. Nevertheless, if you know of someone in NY who was accused of intentionally damaging and/or destroying a motor vehicle, 3^rd degree crim. mischief is an E felony, punishable by up to 4 years’ jail time. But what most of the general public does not know is that when criminal charges are discussed in the media, the maximum jail sentence that is mentioned normally is imposed only if the accused party goes to trial and then loses. Even then, there are so many situations where the defendant gets less than the max. jail time.

 

                        Returning to the crime of criminal mischief in NY, the 2^nd prong of criminal mischief in the 3^rd degree is very simple and states as follows:   ‘[a] person is guilty of criminal mischief in the 3^rd degree when, with intent to damage property of another person, and having no right to do so nor any reasonable ground to believe that he or she has such right, he or she (2) damages property of another person in an amount exceeding $250.’ Again, this is an E felony and it is an amazingly simple crime:  go and intentionally break a person’s flat screen TV, car windshield, drone, new bike, and chances are you have committed an E felony. Now compare criminal mischief in the 3^rd degree with the next-highest degree, that being the 2^nd degree of criminal mischief: 

                       

                        In NY, the only difference between the 3^rd degree and 2^nd degree of criminal mischief is the total value of the property that was damaged. The entire definition of the 2^nd degree of this crime is exactly the same as the 3^rd degree, with the only exception that instead of the words ‘in an amount exceeding $250’ (see the previous paragraph), the words ‘in an amount exceeding $1,500’ is how the crime of crim. mischief in the 2^nd degree is defined here in NY. Second degree criminal mischief is a D felony and is punishable by up to 7 years in jail which, once again, is rarely ordered by the judge. I am using the word ‘rarely’ as a term of art but in order to be sentenced to the max of 7 years for being found guilty of this crime, you not only have to lose the trial but the accused, in all likelihood, has to have prior criminal convictions. It is a basic principle of criminal law, personal injury, politics, and life in general that the closer you are to the city (Any city in the US), the more lenient the court system will be. For this simple reason, you’ll see that even if a car accident or other type of personal injury case takes place in the suburbs, the plaintiff’s lawyers will always try to file the lawsuit in the very liberal, meaning plaintiff-friendly, boroughs of the Bronx, Queens, Brooklyn a/k/a Kings County and sometimes in Manhattan (NY County). But somehow, Staten Is. a/k/a Richmond County does not qualify as a ‘liberal’ jurisdiction. Any place where a large number of Republicans live and work is normally not viewed as ‘liberal’ and this is just one of the truths of living in America.

 

I know that if I were not a lawyer and had no knowledge about the legal system or

if I had a child who was charged with a felony (such as crim. mischief in the 3^rd or 2^nd degree), this would scare the daylights out of me. This type of fear is what often causes people to take drastic measures, such as grossly overpaying for a defense lawyer or hiring the very first lawyer that they speak to. In NY, the crime of criminal mischief is separated into 4 separate degrees and the differences are essentially based on the value of the damaged property. Similarly, in NY the crime of larceny is also separated into 5 degrees (the lowest being petty larceny a/k/a shoplifting) and like criminal mischief, the 5 degrees of larceny are based on the total value of the property that is alleged to be stolen and/or misappropriated.

 

                        In this case involving the former Victoria’s Secret model, thankfully nobody died or was seriously injured. The article’s last paragraph states that, ‘[u]nder the deal, [the defendant] agreed to pay [the ex-boyfriend] $2,951 for his ruined electronics, and in return, if she keeps out of trouble for 6 months, her record will be wiped clean.’ In NY, anytime you see the words ‘if he/she keeps out trouble for 6 months,’ you’ll know that the case was resolved by an ‘ACOD,’ shortened for the term ‘adjournment in contemplation of dismissal’ which, pursuant to the NY Crim. Procedure Law, provides that the criminal case will be dismissed not right away but rather in 6 months’ time, so long as the accused party is not rearrested for a new, unrelated crime either in NY or anywhere else (the term ‘ACOD’ is shortened to ‘ACD’ in the boroughs of NY City). This type of dismissal does not require the accused party to return to Court in 6 months’ time and does not result in a conviction going on that person’s record. But the accused party’s FBI report will always have an indication that a criminal case took place. The only way to erase the actual arrest is to have the arrest voided (this is different from just having the final disposition of the criminal case ‘sealed’) and it is extremely difficult to have a person’s arrest voided. The police and/or District Attorney’s office has to conclude that the arrest should never have happened in the first place. If you notice, in our legal system in America when a defendant wins a trial, the jury (or the judge, in a bench trial) never finds the accused to be innocent. The best outcome that a defendant can hope for, after a trial, is a finding of not guilty. For most people, there is a huge difference between the term ‘not guilty’ and the term ‘innocent’ and I understand this completely.

 

                        This former model in the Post’s article received an ACD, despite being charged with at least 1 felony (crim. mischief in the 2^nd degree, a D felony). This goes to show you that in some situations, a person can be charged with a felony but yet still escape with a dismissal, albeit a delayed type of dismissal. In the City of NY, for criminal cases that are basically tantamount to nuisance crimes (loitering, urinating in public, drinking an open container of alcohol in public, etc.), I’ve seen the ACD period shortened from 6 months to just 24 hours. But an ACD often comes with the issuance of a final Order of Protection that, in a domestic violence situation, normally lasts for 12 months from the last day of Court, referring to the day that the defendant is sentenced. The victim in a case like the one described in the Post article (meaning her now ex-boyfriend) would have to vigorously push the DA’s office in order for the Court to not issue a final Order of Protection at all or for it to be changed to a ‘refrain’ O/P that would allow the defendant and the victim to be in each other’s physical presence.

 

The $2,951 amount that the woman in the NY Post article paid is normally

referred to as restitution. Remember that this case took place in the relatively liberal criminal court in New York County where a D felony was disposed via an ACD. In the suburbs, the probability is that for the exact same fact pattern that lead to the same crimes being charged, a defendant who is a former model might not obtain an ACD. In order to obtain that kind of outcome a/k/a disposition, your defense lawyer will have to perform some magic that is too extensive for me to explain here.

 

Orders of Protection

 

The actions that the woman from the NY Post article gave rise to the filing of criminal charges against her. But in many situations, a person’s actions do not rise to the level of any single crime, so the Criminal Court does not get involved at all, meaning no Temporary Order of Protection is ever issued from that Court. Nevertheless, there are many examples of obnoxious, irritating and even dangerous behavior, in domestic situations, that cause the supposed ‘victim’ to want to seek court intervention. In fact, it’s not uncommon for both people in a romantic, domestic or familial relationship to want to seek official protection from the Court, in the form of an Order of Protection.

 

                        A very common example of a ‘non-crime’ that causes many people to seek an Order of Protection not from the Crim. Court but rather from Family Court is excessive drinking; if the drinking is done in the presence of the parties’ child(ren), the Court might even commence a Neglect case against that parent. The Criminal Court will have nothing to do with this type of fact pattern because in the US, a person can drink excessively and so long as he/she does not a motor vehicle (as defined by the NY Vehicle & Traffic Law) or commit any other crime, the excessive drinking itself is definitely not a crime. But the Family Court can get involved by issuing either a ‘refrain’ Order of Protection (ordering the respondent to not drink, either excessively or at all, in the presence of the petitioner and the child(ren). If the fact pattern shows that the case has extreme aspects to it, the Court might issue a ‘stay away’ O/P.

 

In NY, there is no statute stating that any litigant is entitled to possess only 1

Order of Protection at any one given point in time. I currently have a domestic violence situation right now wherein the wife filed an ‘O’ Petition in the Family Court. The judge granted her a Temporary Order of Protection that was only a ‘refrain,’ thereby allowing the respondent husband to remain in the marital residence. But then the police somehow (I am using this term somewhat sarcastically) learned about this situation and asked whether she wanted to file a criminal complaint against her own husband. She said yes, despite not reading English at all, and when the police wrote out a short criminal Affidavit and the wife signed it, her husband was arrested, booked and brought to Criminal Court to be arraigned. But the most frustrating aspect of this domestic violence situation is that the ‘TOP’ that the Criminal Court judge issued at the arraignment is a full ‘stay away’ that only allows the defendant father to have parenting time with their children pursuant to an Order from either the Family Court or the Supreme Court (if they had already filed a divorce case, which they have not yet).

 

                     In NY, the Supreme Court has exclusive jurisdiction to issue a Judgment of Divorce, meaning that this is the only Court that can deem a married couple to be divorced (in NY, there is no ‘common law marriage’ but if a couple is here from another state where the institution of ‘common law’ marriage is recognized, there is case law stating that the couple will be deemed to be a married couple in NY). Many people do not know that the NYS Family Court has concurrent jurisdiction with our Supreme Court, meaning that all the issues that are litigated in a typical contested divorce case (in Supreme Court) can instead be litigated in the Family Court. Of course, well over 95% of the general public who are contemplating divorce, currently going through a divorce, or who are already divorced would not have any idea of this. If you want to know why, I’ll be happy to tell you why, just email me at HenryLungPC@gmail.com or call the office at (516) 248-8253 or (888) 539-2015.

                       

I happen to practice regularly in all of these 3 areas of law that I’ve discussed in

this article (criminal defense law, Family Court practice, and divorce law a/k/a matrimonial law which is a misnomer because there is nothing ‘matrimonial’ about handling a divorce). I have seen a litigant up to 2 separate Orders of Protection at the same time but never 3, which is nevertheless still possible. But to have 3 open and active cases going on at the same time, at least 1 of those litigants will be missing many days of work and/or school. In NY, if this happens to take place, nobody from any of the Courts that issued the Orders of Protection will check up with the other Court(s) to find out if the victim only needs 1 Order of Protection. Unfortunately, that is not how our legal system works.

 

Unless the alleged aggressor a/k/a bad person takes the proper steps to have the

TOP or multiple TOPs rescinded, all of them will stay in place (generally speaking) and even remain in effect after the underlying case (Family Court case, Criminal case and/or divorce case) is over. I always say that Orders of Protection are very similar to mechanic’s liens and Notices of Pendency a/k/a lis pendens in this way:   very easy to file and obtain from the Court but a royal headache to get removed or rescinded.

 

                        If you have read up to this point, I thank you for taking the time to read this material. I have practiced law very intensely for the past 16 years and I know what I am doing. I have to include the standard disclaimer language, as follows:  the information contained in this Article have been prepared by The Law Office of Henry Lung, PC for general informational purposes only. None of the contents of this Article should be considered to constitute legal advice or a legal opinion. Therefore, The Law Office of Henry Lung, PC cannot make any representation or warranty regarding any of the information contained in this Article. The descriptions of the cases that I have handled in the past should not be interpreted as any form of guarantee or promise that I can produce the same results in your case. But I guarantee you that the descriptions of my prior cases, including the final results, are accurate and I say with pride that these clients were very satisfied with how I handled their cases.

                      You should not rely or act upon any information provided in this Article without first consulting with me or an experienced lawyer of your choosing. It goes without saying that I must disclaim any responsibility in connection with any actions that someone might take that are based upon what he/she has read in this Article.

I can be reached at HenryLungPC@gmail.com or call me at (516) 248-8253 / (888) 539-2015. 

I Was Featured on a Segment on 'Help Me Howard': Howard investigates private investigators accused of keeping their client’s cash

In Jan. 2016, I was interviewed by the ‘Help Me Howard’ program which is featured on Channel 11 news (at night). This interview was shown on a Fri. night in Jan. probably on 1/22. Howard interviewed me about a NY debt collection firm that I used to assist in collecting Judgments in NY. This process is sometimes called ‘Judgment enforcement’ or ‘Judgment execution.’ Once a creditor is awarded a Judgment from any Court, even outside of NY, the debtor/defendant can still refuse to pay it. Then instead of the creditor/plaintiff using the Sheriff’s Office (in the suburbs) or the NYC Marshal’s Office in New York City, the plaintiff/creditor can hire an aggressive debt collection lawyer like me to actually collect upon their Judgment, meaning convert it into $$$. A money Judgment is just a piece of paper from Court and if you have a Judgment, you’ll quickly see that it is of no use for paying any bills.

In this interview, I explain how this particular debt collection firm that I used to assist (but thankfully no more) admitted to me that after successfully collecting a Judgment for 1 of their clients, the company actually used the money for themselves instead of sending the proceeds (the amount of the Judgment) to their own client. I had nothing to do with this transaction, they did it on their own. What they did is nothing less than stealing, it is totally wrong, and when that client complained to the ‘Help Me Howard’ show, I said that I confronted this debt collection firm on my own before he contacted me and told them that they had stolen money and had committed ‘grand larceny in the 4^th degree,’ which in NY is an E felony. When the Help Me Howard program contacted me, I immediately agreed to be interviewed about this colossal mess. 

PLEASE CHECK OUT THE LINK BELOW 

http://pix11.com/2016/02/05/howard-investigates-private-investigators-accused-of-keeping-their-clients-cash/

Have a Safe Weekend

If you find yourself in this situation, I handle these type of cases in all of lower NYS. Please feel free to call my office @ (516) 248-8253 or send me an email @ HenryLungPC@gmail.com. 

About Attorney Henry Lung (NY) by Client John D.