Home   |   Philosophy   |   Practice Areas   |   Attorney Profile   |   En Espanol   |   FAQs   |   Contact Us

You are entitled to be treated with courtesy and consideration at all times by your lawyer and the other lawyers and personnel in your lawyers office

Tell us about your case

Name*
Phone Number
City & State
Type Of Case
E-Mail*
Facts & Summary Of Case *


  • *All Information Provided  Shall Be Kept Confidential
  • *Required Information      

En Espanol   
     New Users: Register
User Name Password
      Forgot Password?
FAQ
Family Law FAQ's:
Other FAQ's:
WHAT IS A PLAINTIFF?

The party who starts a lawsuit by filing a summons & complaint is called the Plaintiff

WHAT IS A DEFENDANT?

The party who is sued in a civil lawsuit or in a criminal prosecution, the party who is charged with a crime. In a divorce, a defendant may also be called a respondent.

WHAT IS A SUMMONS?

The summons is generally drafted by the plaintiff t at the commencement of the lawsuit. This document generally states the name of both plaintiff and defendant, the index number of the case, the court and its address, the contact information of the plaintiff's attorney, and instructions in filing a response to the complaint within a certain time frame (such as 20 days after service).

WHAT IS A COMPLAINT?

The complaint is filed by the plaintiff. This document specifies why the person brought the lawsuit in the first place. The party filing the complaint is usually called the plaintiff and the party against whom the complaint is filed is called the defendant.


Queens Divorce Lawyer
WHAT IS AN UNCONTESTED DIVORCE?

A divorce proceeding in which all legal issues are not disputed or litigated. There are a few reasons for the lack of objections. The parties probably have worked out an agreement or understanding, one of the spouses is missing, or the last is that the other spouse refuses to participate in the proceeding.

WHAT IS A CONTESTED DIVORCE?

A contested divorce occurs anytime that the parties can't agree on an issue in their divorce. It could be that the parties are not on the same page as to how much child support is proper for the kids, or who will have custody of the children after the divorce is finalized. Sometimes the different in opinion could be money. Maybe one spouse thinks that they should be entitled to a bigger percentage of the other spouse business, pension, and license. Whatever the difference may be, this divorce will be contested.

WHEN DOES MY CASE STARTS? 

A divorce is officially started by the filing of a Summons with Notice. The party that commences the action by filing a Summons is the Plaintiff.

HOW LONG WILL IT TAKE TO GET DIVORCED? 

An uncontested divorce can take from one (1) to six (6) months for a final judgment, it all depends how cooperative is your spouse. A divorce that is contested, involving custody and financial issues however can take from one (1) to three (3) years.

WILL MY FRIENDS SEE MY DIVORCE PAPERS IF THEY GO TO COURT? 

No. In New York all matrimonial matters are confidential. Unless it is your attorney or counsel, or by Court order, you would have to give a person written permission to view, examine or copy any papers filed in your case.

WHAT IS THE AGE REQUIREMENT FOR ME TO GET DIVORCE?

A person reaches the age of consent to marry on their eighteenth birthday, parental or judicial consent must be obtained prior to reaching this age. A marriage where either of the parties are under the age of 18 years old, then they may seek an annullment at the discretion of the Court.

WHAT ARE THE GROUNDS FOR A DIVORCE?

New York has six grounds for divorce: Cruel and inhuman treatment, adultery, abandonment for a full year or more, imprisonment for three years or more, living separately for one year under a separation judgment granted by a Court, or living apart for one year under a separation agreement, that allows the parties to convert the judgment or agreement into a final judgment of divorce. New York recently added another ground for divorce which is known as the No-Fault provision. This provision allows for a divorce whithout having to allege the other above mentioned grounds.

IF I HAVE GROUNDS, DO I NEED ANYTHING ELSE?

You must also satisfy the residency requirement. As a condition of bringing an action to terminate a marriage in New York, you must show that you are not just coming to New York to obtain a divorce and then you are going back to your home state. New York does not wish to become the McDonalds© of Divorces, and that is why you must satisfy one of the following requirements:

1. Your marriage must have occurred in New York and either you or your spouse has been a      resident of New York for one year.
2. The marriage ended In New York and either you or your spouse has been a resident of New      York for one year
3. The marriage ended In New York and you or your spouse live and plan to stay in New York.
4. The marriage ended In New York and either you or your spouse has been a resident of New      York for one year.
5. You or your spouse has lived in New York for more than two (2) years before filing for      divorce.

CAN MY SPOUSE PAY FOR MY ATTORNEY IN THIS DIVORCE?

The Courts has the discretion to Order your spouse to pay for your attorney fees in a divorce, or an annulment. However this generally occurs when there is an economic disparity between the spouses and it is necessary to enable the weaker financial party to proceed with the divorce. This normally occurs during a "Contested Divorce". However, under the new "No-Fault Divorce," there is a presumption that the "less monied spouse" is entitled to payment of legal fees.

I'M I ENTITLED TO ANYTHING AFTER DIVORCE?

New York addresses martial property under the doctrine of equitable distribution. Under this doctrine property is not "equally" distributed, instead it is equitably distributed. So in essence, a party who did not work outside of the home is still entitled to share in the marital property. Examples of marital property are: A professional license earned during the marriage, a master degree earned during the marriage, a business, lottery winnings, pension plan. However, not all property qualify for equitable distribution, some example of these are: All property acquired before the marriage, inheritances, gifts not given by either spouses parents, or personal injury awards.

CAN THE COURTS MAKE ME PAY ALIMONY OR MAINTENANCE?

Yes. The Courts takes into consideration many factors, including, the income of you and your spouse, the health, age and time span of the marriage, the earning potentials of both you and your spouse, any bad faith transfer of property made in contemplation of the divorce action, the standard of living established during the time of the marriage, among many other things

CAN I REPRESENT MYSELF?

You may represent yourself, however it is strongly not advisable. Divorce proceedings often involve high financial stakes, complex issues and difficult legal procedures. Furthermore, it is very likely that if your case is a contested divorce, where there are financial issues or custodial issues, then your spouse has already hired a lawyer, and you will be at an enormous disadvantage walking into the court room by yourself. The procedures in divorce court are not easy for the average lay person to follow or adhere to, and you stand to lose a lot if you make a mistake or do not understand what you are doing.

HOW MUCH WILL A DIVORCE COST ME?

An uncontested divorce may cost anywhere from $1,000 to $2,500, in addition to court fees. Again, it all depends upon whether there are children involved, financial issues, real estate property, whether or not your case involves a settlement agreement, etc. All contested matters are charged at an hourly based fee. They also require an advance fee referred to as a retainer.

WHAT IS THE REQUIREMENTS FOR AN ANNULMENT?

A person who married before their eighteenth birthday should look into obtaining an annulment, instead of a divorce. The most common ground for an annulment is fraud. An annulment is unlike a divorce in two major aspects. First, there is not right to an annulment, the Courts have full discretion whether or not it grants an annulment. An annulment requires much more work than an uncontested divorce; therefore the price is a bit higher. However, the time to get an annulment is basically the same as a divorce. There are five (5) grounds for an annulment:

   1. Age: Must have been below 18 Year Old
   2. Mental Incapacity: Incapable of Consenting
   3. Physical Incapacity: Incapable of Engaging in Sexual Relations
   4. Fraud: Intentional Misrepresentation
   5. Five Years Incurable Mental Illness

HOW WOULD I KNOW WHAT PROPERTY MY SPOUSE OWNS?

In a contested action, the Court order all parties to disclosure their financial situation in a process called "Discovery". During this procedure, you both give and get proof of each other's financial situations and identify all marital property. Also all parties have at their disposal, a tool called "Interrogatories"; this allows a party to demand written answers under oath about the property owned.

I'M I ENTITLED TO CHILD SUPPORT?

In New York, pursuant to the Child Support Standards Act, a non-custodial parent (the spouse who does not live with the child) has an obligation to support the child. Under this law, enacted by the New York State Legislature in 1989, the non-custodial parent must contribute a percentage of their salary to child support, whether or not they are married or divorce, and whether or not they are gainfully employed. The percentages are as follows: 17% for one child; 25% for two children; 29% for three children; 31% for four children, and 35% for five or more children. The formula is meant to be simple, but its application is much more complicated than it looks. For example, the law allows a judge the discretion to adjust the award up or down based upon certain statutory requirements including the gross disparity in income between the custodial and noncustodial parent. An attorney familiar with the provisions of Domestic Relation Law is strongly advised when dealing with child support or any other family law issues.

WHAT FORMS OF PAYMENT DO YOU ACCEPT?

We accept all types of payments including Visa, Master Card, American Express, Discover, and personal checks. If you choose to send a personal check, please notify us beforehand by phone or email.


New York Criminal Lawyer
WHAT IS A CRIME?

A crime in its simplest form is an act which has been categorized by the legislature body, via the public, as contrary to the public good, and so it can be prosecuted by the government.

WHAT IS THE DIFFERENCE BETWEEN A FELONY AND A MISDEMEANOR?

In New York almost all criminal offenses are statutory. These two terms are used to differentiate and distinguish between a high crime known as a felony, and a minor offense known as a misdemeanor. New York defines a felony as an offense for which a sentence to a term of imprisonment in excess of one year may be imposed. A misdemeanor is defined as an offense, other than a "traffic infraction, " for which a sentence to a term of imprisonment in excess of fifteen days may be imposed, but for which a sentence to a term of imprisonment in excess of one year cannot be imposed.

WHO ARE THE PARTIES IN A CRIMINAL CASE?

The police investigate a crime and the District Attorney's office prosecutes the individual suspected of committing the crime. The district attorney has the authority to investigate and prosecute all criminal acts committed within its jurisdiction in violation of state laws and county ordinances. New York City has an elected District Attorney in every borough. They represent the People of the City Of New York by bringing criminal charges arising out of state law and county ordinances against suspects in Criminal Court.

WHAT SHOULD I DO IF IM BEING INVESTIGATED FOR A CRIME?

The first thing you should do is retain a competent criminal attorney. If you do speak to the police without the assistance of a lawyer, you should remember that anything you say besides your name and address can be used against you. Also keep in mind that a law enforcement agent is trained to deceive you into talking by making untrue claims. If you feel uncomfortable and you are not under arrest, you should ask the officer if you may leave or ask if you are free to go. Most people who are investigated by the police are often innocent; however it is very easy to implicate yourself or others in something which you did not do. The police have the discretion to arrest you based on information that you give them.

DOES THE POLICE NEED A SEARCH WARRANT TO SEARCH MY HOUSE?

Yes! The U.S. Constitution, specifically the Fourth Amendment protects you personally against all unreasonable searches and seizures. The U.S. Constitution and the New York Constitution protect you against unlawful searches, and they both have virtually the same language, except that New York's Constitution protects you a bit more than the Federal Constitution. Without a warrant, under normal circumstances, no law enforcement officer can search you, your home or office without your consent, probable cause or a warrant supported under oath or affirmation, describing in particular the place to be search and the person or thing to be seized. A person?s home is very delicate and considered sacred. Your home cannot be searched by police or other law enforcement agents unless you consent, or unless they have a search warrant. Any evidence obtained in violation of your rights is not allowed to be used against you in a criminal prosecution.
 

DOES THE POLICE NEED A SEARCH WARRANT TO SEARCH MY CAR?

If we were to rank your car in order of sacredness and privacy, it would rank at the very bottom. Cops do not need a warrant to search you car. The most common manner, in which an officer can stop you to search your car, is if the officer observes you breaking the Vehicle & Traffic Laws of New York. Your car can also be stopped if an officer has reasonable suspicion to believe that you are breaking the law. Once the officer has stopped your car, he/she will normally ask for a driver's license, registration, proof of insurance and possibly your destination. During this brief encounter, the officer may attempt to search your car if the officer observes something that is immediately apparent illegal. Generally the officer can not ask for consent to search your car unless they have founded suspicion that you are engaging in criminal activity. The best thing to do is not to ever give consent for a search of your car. If you must give consent, then limit the scope of the consent to a certain area of the vehicle. As you can see, a law enforcement officer does not need much to stop a vehicle that is driving on a public street or highway
 

SHOULD I CONSENT TO A SEARCH OF MY HOUSE OR CAR?

No! If you consent to a search, the police do not need a warrant or probable cause to search your car, house, or office. The police will usually ask you before they begin the search, but they do not need to advise you that you have the right to refuse to a consent to the search. In New York, the burden is on the prosecutor to prove that you consented to the search.

CAN MY ROOMATE CONSENT TO A SEARCH?

YES! If you live with someone, including a spouse, roommate, parents or relatives, it is extremely important to tell these people that in your absence they are not to give consent to anybody to search your personal space. A law enforcement officer must reasonably believe that a person inside your house possess common authority over the house in order for that person to consent to a search.

THE NEIGBORS CALLED THE COPS BECAUSE OF MY PARTY, CAN THEY NOW CAME IN AND             LOOK AROUND?

NO! Unless they have a warrant, there is an emergency inside, or you consent, then they can not search your house.

CAN THEY JUST TAKE MY GARBAGE WITHOUT A WARRANT?

Yes! Once you dispose of you garbage, anybody may walk by and pick it up, including the police, the 4th amendment no longer applies. Your garbage is no longer yours, it is considered abandoned property, and no expectation of privacy is left in the property.

WHAT IF IM ARRESTED, SHOULD I TALK TO THE POLICE?

Under no circumstance should you talk to the police. The only thing that can happen is that you help the police implicate you in the crime. You must state that you wish to remain silent and further would like to consult with a lawyer. You must remain silent and not speak to anyone but your lawyer before and after the arrest, even other prisoners, friends and family. Anything you say to either a relative or a fellow prisoner can be used to prosecute you. Once you have invoked your right to a lawyer, the officer must stop questioning you. 

HOW LONG CAN THE POLICE HOLD ME BEFORE MY ARRAIGNMENT?

In general, after the police have arrested you, you must be brought in front of a judge within twenty-four (24) hours for your arraignment. If you are not presented in front of a judge by that time, then you are entitled to be released, unless there is a reasonable explanation for the delay.

CAN I BE RELEASE ON MY OWN RECOGNIZANCE?

Generally when someone is arrested for a minor offense, they may either be released on their own recognizance or bail must be set. However, when it comes to felonies, while it is possible to be released on your own recognizance, bail is discretionary.

WHAT IS BAIL?

Bail is a monetary form of security set up to insure that a person once arrested will appear at every stage of the criminal proceeding. Once posted, bail procures the release of the defendant and assures his future attendance of the proceeding. 

WHAT IF I DON'T HAVE THE ENTIRE BAIL THEY ARE ASKING FOR?

Most, if not all defendant do not have the required bail amount in cash (equity) to post bail. Typically a defendant may post bail either in cash or through a licensed bail bondsman. New York law allows a bail bond company to charge you a premium on lending you the money for your bail. The premium can't be over ten percent (10%) of the total bond amount when the bond is less than three thousand dollars, and in cases where the bond is above three thousand dollars, then the bail bond company can't charge more than eight percent (8%) of the excess amount over three thousand dollars up to ten thousand dollars and six percent (6%) of the excess amount over ten thousand dollars. If you are charged with a minor offense requiring less than two hundred dollars a minimum premium of ten dollars may be charged by the bail bond company.
CAN THE CASE BE DISMISSED IF THE POLICE DID NOT ADVISED ME OF MY RIGHTS WHEN THEY             ARRESTED ME?

Possibly! The police need only read your Miranda rights when they are questioning you. If the police question you while they have you in custody, and they do not tell you your rights and as a result you incriminate yourself, then there is a good chance that you may have those statements excluded from use at the trial. If no questioning occurs then your rights have not been violated. The police must tell you before questioning you that: (1) You have the right to remain silent (2) If you give up that right, then anything you say can be used against you in a court of law (3) You have the right to the presence of an attorney during the time that the police question you (4) If you can't afford an attorney, then one will be provided for you prior to the police questioning you.

CAN I TAKE MY GUILTY PLEA BACK ONCE THE CASE HAS CONCLUDED?

Under normal circumstance, a court will not allow you to withdraw your plea. A guilty plea made in open court is the equivalent of having a long trial and the jury finding you guilty. The courts of New York take this matter very seriously and before accepting a guilty plea, the court must be convinced that you understand the charges presented by the district attorney and that you knowingly and voluntarily waive you right to a trial. Generally you must waive your right to an appeal in order to enter into a guilty plea.


New York Real Estate Lawyer
I HAVE A SELLER OR BUYER FOR THE HOUSE, NOW WHAT?

If you are selling or buying a home, it is vital that you have an attorney representing your interest. If you use a third party to sell your house, they may require you to sign a Binder Agreement to present to the Seller. The Binder is basically an offer that you make at a given price for the property. Normally the Binder will be accompanied by a nominal earnest money deposit. While you may have a broker representing you in the actual buying or selling part of the process, your attorney is the only person in the transaction that will be working solely for your benefit during the Closing process. The standard practice is for the seller's attorney to draft and prepare the contract of sale so as to protect your interest in the transaction. In addition to drafting the contract, the seller's attorney serves as the escrow agent with respect to the Down payment, reviews the title report for problems, attends the closing, and prepares the Closing Statement. The Buyer's attorney will normally review the contract so as to make sure the buyer is well protected. In addition to preparing or reviewing the contract the buyer's attorney will review the title report for any problems, and coordinate the closing date.

WHAT IS THE NEXT STEP AFTER THE CONTRACT IS SIGNED?

Normally the buyer conducts a home inspection in accordance with the terms of the contract. They are typically conducted within five days of the signing of the contract. If any issues arise from the home inspection, they should be resolved promptly. It is in the buyer's best interest also to obtain an inspection for termites, or other wood destroying insects before or during the home inspection. The contract can be subject to a satisfactory inspection for termites. The cost of the inspection is paid by the Purchaser. It is usually the responsibility of the Seller to correct any termite infestation problems. During this time, a title report is then ordered by the buyer's attorney with a copy provided to the seller's attorney. At this juncture the buyer should also secure financing for the transaction. Most real estate contracts are subject to the buyer being able to obtain a mortgage commitment from a lender. If the buyer in good faith can't obtain a mortgage commitment, usually the contract is canceled and the buyer is given back the down payment.

WHEN DOES THE CLOSING OCCUR?

The closing is the climax of the transaction, and is where the actual consummation of the transaction occurs. The closing date will usually be stated in the contract, and it is normally scheduled within thirty (30) days of the signing of the contract. It is not unusual for the closing date to be rescheduled due to unexpected issues that may arise. The buyer's attorney will normally coordinate with the buyer's lender, the seller's attorney, and title company to set a mutually convenient date for the closing. Once at the closing location, the buyer gives the seller the payment of the purchase price, and the seller delivers the buyer a deed. Additionally, documents to be exchanged at closing may include the mortgage, mortgage note, and survey of the property, leases, insurance policies, assignments, and receipts for taxes, special assessments, and utilities. Generally a closing can be as brief as two hours, or can last as long as six hours, depending on the complexity of the transaction. The closing usually occurs at the office of the bank attorney.  

ATTORNEY FEES

The average legal fees for representation of a seller or buyer in connection with the sale of a home can range from $1,500.00 to $5,000.00 depending upon the complexity of the transaction and the work involved. Please be advised that you will be required to make a $ 500 down payment deposit upon the signing of a retainer and the balance is payable at closing. Please be also advised that not all transactions result in a successful closing. Our fees are not contingent on whether or not the transaction actually closes. Disbursements for items like faxes, long distance phone calls, copies, overnight carrier, and postage are billed separately.

WHO WILL ATTEND THE CLOSING?

Your attorney will be with you at your closing, also the other party and his/her attorney will be present. Generally the real estate professionals are also present along with a representative of the lender. The actual closing last about two hours, unless there are issues that need to be resolved at the closing table.

I HAVE OTHER REAL ESTATE RELATED QUESTIONS, CAN YOU HELP?

Please read our Real Estate Ownership Guide where the whole real estate buying and selling process is more fully discussed.

  |   Home   |   Philosophy   |   Practice Areas   |   Attorney Profile   |   Newsletters
  |   En Espanol   |   Disclaimer   |   Privacy Policy   |   Client Testimonials   |   FAQs   |   Contact Us   |  
We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.
© Copyrights reserved by The Law Offices of Odalis M. Encarnacion