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The McDermott Law Offices Blog is a place where you can find information on legal developments affecting you, your family and your business:

Woman Facing Lifetime Imprisonment Acquitted of Murder

MPMM Law - Thursday, June 29, 2017

Ed Mandery recently obtained an acquittal for a woman accused of intentional murder in Kings County. Mr. Mandery’s client had been accused of shooting the decedent in the head and leg causing his death. She had been captured on video running from the scene while discarding a bandana allegedly worn as a mask during the shooting. The police recovered the bandana containing her DNA at the scene. Upon her arrest, the detectives obtained a statement from the defendant which placed her at the crime scene.

Ed spent countless hours defending his client who faced lifetime imprisonment. The extensive preparation and litigation proved invaluable.  Ed has previously lectured at the Bar Association and New York City Police Academy concerning proper methods in conducting suppression hearings. Taking a page from his own playbook, Ed was successful in having his client’s statement suppressed. That, coupled with his zealous cross-examination of the prosecutions witnesses’ concerning their contamination of the crime scene, failure to obtain additional evidence, and the loss of other evidence, directly led to his client’s freedom.

New York State Legislature Passes New Spousal Support Law

MPMM Law - Tuesday, June 30, 2015

On June 24, 2015, the New York State Senate passed a Bill that will change the duration and amount of temporary and post-divorce spousal maintenance (alimony) in New York State. The Bill passed the State Assembly on June 15th.

The Bill awaits signature by Governor Cuomo.

The law will only apply to divorce cases filed on specific dates after the Bill is signed into law by Governor Cuomo. The new law may not be utilized as a basis to change existing orders and agreements.

The law will undoubtedly be the subject of many interpretive decisions by the Courts that will follow the signature of the law by Governor Cuomo.

In the interim, here are a couple of highlights that appear in the Bill:

1.) The income “cap” on the payor’s income used for the maintenance formula is $175,000.

Income over $ 175,000 will be a matter for a court to decide in its discretion on a case- by-case basis. This lowers the income cap now applying only to spousal maintenance granted during a pending divorce case from $543,000.The same $175,000 cap applies to post-divorce maintenance awards.

2.) The new law would also eliminate the court being able to consider as a marital asset the value of a spouse’s enhanced earning capacity arising from a professional license, educational degree, celebrity goodwill, or career enhancement. Consideration of those items has been a major source of contention in past cases.

3.) The amount of time that post-divorce maintenance can be awarded will now be subject to a formula that includes ranges of different percentages of the marriage length, depending on how long the marriage lasted:

(a) For marriages of zero to 15 years, spousal maintenance would be awarded for 15% to 30% of the length of the marriage.

(b) For marriages of more than 15 up to 20 years, spousal maintenance would be awarded for 30% to 40% of the length of the marriage.

(c) For marriages of more than 20 years, spousal maintenance would be awarded for 35% to 50% of the length of the marriage. However, a court would retain the right to award maintenance for longer periods on a case-by-case basis.

4.) In determining the duration of maintenance, the court shall consider anticipated retirement assets, benefits and retirement eligibility age.

Actual or partial retirement will be a ground for modification of post-divorce maintenance, if it results in a substantial reduction of income.

We will continue to monitor signature of the law by the Governor, its interpretation and implementation, and update on any additional matters of interest.

Please feel free to contact us to discuss how this new law may impact your personal planning.

© June 30, 2015 - Robert G. McDermott

IRS Circular 230 Disclosure Notice: The information herein is not intended or written to be used for the purpose of avoiding penalties that may be imposed under the Internal Revenue Code or any other applicable tax authority.

New Jersey Divorce Law Changed - No More Permanent Alimony

MPMM Law - Wednesday, September 10, 2014

While our practice does not include New Jersey cases, many of our clients and colleagues have friends and family in the Garden State. We want to make them aware of a major change in the New Jersey alimony rules just enacted into law.

On September 10, 2014, New Jersey Governor Chris Christie signed a new law that will no longer permit the awarding of permanent alimony in future divorces in New Jersey.

Under the new law, alimony for marriages lasting less than 20 years could not be paid for longer than the duration of the marriage. Alimony could also end when: (a) the person making the payments retires or loses a job; or (b) if the person receiving the support starts living with someone else. The new law also sets guidelines for judges evaluating changed circumstances.

Should you require more information on New Jersey divorce matters, please feel free to contact us. We maintain relationships with several excellent New Jersey law firms. We would be happy to provide you with their contact information.

© September 10, 2014 - Robert G. McDermott

IRA's And Other Retirement Accounts To Be Curtailed Under Obama's 2014 Budget?

MPMM Law - Tuesday, April 16, 2013

Are there potential big changes coming to retirement planning ? Maybe.

The Wall Street Journal reported in its April 14, 2013 online edition that within President Barack Obama's budget for fiscal year 2014, are proposed changes that would impact Individual Retirement Accounts (IRA's) and other tax deferred savings plans, including 401(k) plans.

The proposal to put a lifetime cap on savings in individual retirement accounts and other tax-deferred retirement-savings vehicles, including 401(k) plans and corporate profit-sharing plans is getting attention.

Also, the favorable IRA "Stretch Out" distributions for the beneficiaries of an IRA owner may be curtailed. Under current rules, people who inherit IRAs can "stretch" their withdrawals across their life expectancies, paying income tax only on the amounts they remove from the account and continuing the tax deferral on any earnings inside. Obama's budget proposal would force heirs (other than surviving spouses) to empty such retirement accounts within five years, accelerating payment of taxes due. The Wall Street Journal indicates that billions in additional governmental review would be generated by eliminating "Stretch Out" distributions.

We will update our blog with any future developments on this.

IRS Circular 230 Disclosure Notice: The information herein is not intended or written to be used for the purpose of avoiding penalties that may be imposed under the Internal Revenue Code or any other applicable tax authority.

Fiscal Cliff Legislation Provides Permanent Estate Tax Relief

MPMM Law - Wednesday, January 02, 2013

According to summaries being reported thus far, the Fiscal Cliff legislation that passed on January 1, 2013 will implement permanent estate tax relief.

Federal Estate Tax will not be required on inheritances of up to Five Million ($ 5,000,000) Dollars. Married couples may be permitted to add their exemptions together, to avoid paying tax on inheritances less than Ten Million ($10,000,000) Dollars.

For any additional value over the excluded amounts, a 40% estate tax is applicable.

Estate-tax policy has been in flux since 2001, when the Bush tax cuts were enacted. They called for higher levels of exemptions and lower tax rates to be phased in over ten years, with the estate tax totally eliminated in 2010, and being restored to pre-2001 levels at the end of 2012.

Without last night's deal, a 55% estate tax would have been applied to all inheritances above One Million ( $1,000,000) Dollars.

We will continue to monitor the final details of this legislation, and update accordingly.

Expanded Definitions Of "Estate" For Medicaid Recovery Repealed In New York

MPMM Law - Friday, March 30, 2012

Dear Clients, Friends and Colleagues:

Good news for all New York residents who face long term care needs, and may need to seek medicaid.

We were notified today by the New York State Bar Association that on March 27, 2012, the New York State Legislature voted to repeal the regulations utilizing an expanded definition of “estate” for Medicaid recovery purposes.

Because of this repeal, the prior definition of estate recovery, which limited estate recovery to only those assets included within the individual’s estate and passing under the terms of a valid will or by intestacy, is now back in effect.

Also, the proposed elimination of spousal refusal has been rejected.

This is a major triumph for all New Yorkers. The repeal takes away much of the uncertainty faced by those who may need to seek medicaid, and especially for those who previously transferred life estate deeds as a medicaid planning technique.

As a member of the Trusts and Estates and Elder Law Sections of the New York State Bar Association, I wish to acknowledge the diligent efforts of my fellow members, many of whom were instrumental in the strong effort that resulted in this repeal.

Domestic Abuse

MPMM Law - Thursday, October 07, 2010

Having been involved in family law disputes for two decades, I have seen the horror of domestic abuse, including a young woman who was killed by her husband, one who was raped and severely beaten, and countless others, including men, women, children and seniors, who were otherwise abused physically, emotionally or financially.

My daughter Grace McDermott made a video for a social media class at college.

It is a graphic reminder of the brutal reality of domestic abuse. I am proud of her efforts to bring continuing attention to this difficult problem.

It is a tough one to watch, but a great reminder that anyone on the receiving end of abuse should get out and get help before it goes terribly wrong.

For help with an abuse problem call:

NATIONAL DOMESTIC VIOLENCE HOTLINE 1-800-799-7233

ELDER ABUSE IN NEW YORK STATE: 1-800-342-3009 (Press Option 6)

CHILD ABUSE IN NEW YORK STATE: 1-800-342-3720

No-Fault Divorce Finally A Reality In New York

MPMM Law - Monday, August 16, 2010

It was announced today (August 16, 2010) by Governor Paterson's office that Governor Paterson signed into law a package of four bills that would bring significant reform to New York's outdated divorce laws. In particular, the Governor signed into law A.9753A/S.3890, which would make New York the last State of the fifty to adopt no-fault divorce. The bill would end the requirement that a party seeking a divorce had to claim one of a limited set of reasons as the basis for doing so, a rule that forced parties to invent false justifications, and that prolonged and aggravated the painful divorce process.

The reform package also included legislation that would revise the process for setting awards of temporary maintenance while a divorce is pending, by creating a formula and list of factors that would presumptively govern such awards (A.10984/S.8390 and A11576/S.8391). This would allow for speedy resolution of the maintenance issue, and prevent less well-off parties to divorce proceedings from falling into poverty during litigation, because they lack the resources to obtain a temporary maintenance order. Another bill (A7569-A/S4532-A) would create a presumption that a less monied spouse in a divorce case is entitled to payment of attorneys' fees.

Under current law, a party that cannot afford to secure representation in a divorce proceeding must make an application for fees at the end of the process, which can force a poor individual to proceed without a lawyer, or to surrender on important issues due to lack of means. These bills received strong support from women's groups, advocates for victims of domestic violence and legal aid organizations.

"Finally, New York has brought its divorce laws into the twenty-first century," Governor Paterson said. "These bills fix a broken process that produced extended and contentious litigation, poisoned feelings between the parties and harmed the interests of those persons – too often women – who did not have sufficient financial wherewithal to protect their legal rights. I commend the sponsors on providing a real and effective legislative solution to a problem that has for too long bedeviled ordinary New Yorkers."

We will provide you with more updates concerning the effect of these important new laws as they become available.

Upstate NY Woman Criminally Charged For Committing Adultery

MPMM Law - Saturday, June 26, 2010

If You Cheat On Your Spouse Could You Face Criminal Charges In New York?

It is a story that has been reported by ABC News, The New York Daily News, and even papers in Europe (Link).

Police in upstate Batavia, New York found 41-year-old Suzanne M. Corona and 29-year-old Justin Amend engaged in a burst of passion on a table in Farrall Park at about 5:15 p.m. on Friday afternoon June 4, 2010.

After being observed engaging in sexual intercourse on a picnic table in the public park, both Ms. Corona and Mr. Amend were charged with public lewdness.

The public lewdness charge was not much of a surprise.

The second charge levied against Mrs. Corona, a married woman, was more unusual.

Mrs. Corona was also criminally charged with adultery, becoming one of a small handful people in New York State history to face the charge.

"It's a charge that all of our officers are aware of, but we don't come across it very often," Officer Eric Hill, a Batavia police spokesman, told the Democrat and Chronicle. "It's not very often you have people engaging in sexual activity in a park in broad daylight. This particular circumstance met all the criteria for the charge."

Only about 12 other people have been charged with the crime in nearly 40 years, according to experts.

Adultery and public lewdness are both misdemeanors, punishable by up to 90 days in jail or a $500 fine.

Section 255.17 of the New York State Penal Law criminally prohibits adultery, providing, “A person is guilty of adultery when he engages in sexual intercourse with another person at a time when he has a living spouse, or the other person has a living spouse. Adultery is a class B misdemeanor.” A class B misdemeanor is punishable by up to 90 days in jail or a $500 fine.

A copy of the court papers detailing the charges are available here.

Given that prosecutors who are trying to jail murderers, rapists, robbers and drunk drivers seem to have little interest in prosecuting most married folks with girlfriends or boyfriends on the side, one doubts that such prosecutions would become a new trend; however, the law remains on the books in New York.

The choice of a picnic table in a public park on a Friday afternoon in broad daylight was undoubtedly not the most prudent location for these lovebirds to express their extreme, non-marital fondness for one another.

In addition to criminal charges, you have to wonder if they got splinters, too.

Employers Must Give Notice To New Employees Of Pay Rate In Writing As Of Oct. 26, 2009

MPMM Law - Thursday, October 29, 2009

Note For Employers

New Law Effective October 26, 2009

The Labor Law In New York [Sec. 195(1)]Requires New Employees To Get Written Notice Of Their Pay Rates

Effective October 26, 2009, New York law now requires employers to provide a special notice to new employees about their pay.

Newly hired employees must be given written notice of their pay rate, pay day and, if applicable to the employee, overtime rate of pay. Employers must also obtain a written acknowledgment from employees that the employees have received the notice. See Labor Law §195(1) at the end of this posting.

The law states indicates that the acknowledgment must meet requirements established by the Department of Labor (DOL).

The DOL has now issued notice and acknowledgment forms to complying with Labor Law §195(1), but there are some issues with the form DOL has issued.

The form does not seem to address situations in which commissions or bonuses must be included in the overtime calculation, so the overtime rate cannot be known in advance. It also does not say how to inform employees of their overtime rate if that overtime will fluctuate from week to week

The law seems to indicate that employers must use the form of acknowledgment issued by the DOL, but it does not specifically require use of the exact notification form published by the DOL. If employers must use that form, it would be potentially problematic given these open issues.

A copy of the "Notice and Acknowledgement of Wage Rate and Designated Payday, Hourly Rate Plus Overtime" form can be found at the DOL's website.

Click here to get your new DOL forms and information on the new law.

While there are open issues with the form and its sufficiency that need to be cleared up, employers would be well advised to, at minimum, use the form published by the DOL until there is further guidance or clarification from DOL about changes or updates to the form.

Please confirm with your Human Resources staff that you are complying with the above requirement for all hires brought on after October 26, 2009.

NY Labor Law § 195(1)

§ 195. Notice and record-keeping requirements. Every employer shall: 1. notify his or her employees, in writing, at the time of hiring of the rate of pay and of the regular pay day designated by the employer in accordance with section one hundred ninety-one of this article, and obtain a written acknowledgement from each employee of receipt of this notice. Such acknowledgement shall conform to any requirements established by the commissioner with regard to content and form. For all employees who are eligible for overtime compensation as established in the commissioner's minimum wage orders or otherwise provided by law or regulation, the notice must state the regular hourly rate and overtime rate of pay;