Living
Legal Issues
The law in the United States is based on the Common Law, which was borrowed from the English system. Even after gaining its independence during the Revolutionary War, the United States continued to use the Common Law as a foundation for its own legal system.
The US Constitution is the ultimate authority on every matter pertaining to law and government in the United States. Every statute, court decision or government action is held up to the Constitution – if it contradicts it, it will be struck down as contrary to the principles of the country.
The Constitution created three branches of the government: legislative, judicial and executive. The legislative branch creates law (or statutes), and the judicial branch interprets those laws. The executive branch is headed by the President of the United States, who is the Commander in Chief of the armed forces and oversees certain government agencies.
The Common Law system relies heavily on precedent: that is, decisions from courts that interpret statutes enacted by the legislative branch. Common Law also fills in any gaps not covered by statutes. The US also follows a federal system, which is a balance between state and federal law.
Legal Issues for Expats
Non-citizens living in the US enjoy the same legal rights as citizens. They are subject to the same laws and are entitled to the same protection from those laws. However, anyone who is not a citizen must be aware that many legal problems can have serious consequences regarding their ability to stay in the US. For example, a non-citizen accused of a crime may not only be sent to jail, but also deported. In addition, if your residency is based on marriage, your divorce many have serious consequences on that residency. Therefore, it is always best to consult an attorney experienced in immigration matters before proceeding with any legal issue.
Divorce
In the United States, divorce is governed by state law. There are six grounds for divorce in New York: cruel treatment, abandonment for one year or longer, imprisonment (of your spouse) for three years or longer, adultery, a court-granted legal separation for a year, or legal separation for a year through a signed agreement of the parties.
An uncontested divorce, in which the terms are agreed to by both parties and involves a simple division of property, can be completed in 30 days and will cost you anywhere between $250 and $2,500. In a contested divorce, however, your attorney will charge, which can cost between $175 and $450 an hour. In addition, your lawyer will probably ask for a down payment for his or her fees, also known as a retainer. You should also note that a complicated divorce, with lots of property or child custody issues to be settled, can take one to three years.
In order to obtain a divorce in New York, the state must have jurisdiction. You and your spouse must have married in New York and either of you must be a resident when the divorce proceeding starts, with one of you resident for one year immediately before. Alternatively, you and your spouse must have lived in New York as husband and wife, and live in New York when the divorce proceeding starts, as well as the year before. Lastly, you can also get a divorce in New York if either one of you has been a continuous New York resident for at least two years immediately before filing for divorce.
Legal Settlements
Child Support in New York is determined by its Domestic Relations law. Every parent is responsible for the support of their child until the child reaches 21 years of age. In determining custody and child support, the governing principal for the court is the best interest of the child. The court will calculate the basic child support and obligation, considering many factors, including the non-custodial parent’s proportionate share. In terms of child custody, again the court will balance a number of factors, with the foremost priority being the best interest of the child.
For both custody and child support, parents are free to come up with their own reasonable agreement and waive the law. For example, if the parents agree that the child would be better off living with one parent most of the time and spending holidays with the other, that would be ok with the court, as long as it is in the child’s best interests. Also, one parent may agree to pay more for the child’s support based on the fact that that parent earns significantly more money than the other.
New York alimony laws are gender-neutral. The court will look at several factors when determining whether either party gets alimony and how much, including the standard of living during the marriage, the circumstances of the divorce, the duration of the marriage, and the age and health of the parties. They will also consider whether the potential recipient of the alimony was out of work while married, and what, if any, professional opportunities that person passed up in order to raise children, and so on.
In terms of division of marital property, New York is an equitable distribution state. That means that the court, looking at the particular facts of the case, will divide the assets and debts acquired during the marriage according to the contributions of each spouse. The court will look to the length of the marriage here as well, usually when the marriage has been 20 years or longer, the court will divide the property 50/50, but again, this depends upon the specific facts.
Making a Will
While it is perfectly legal in New York to make your own will, as with all other areas of law, you should consult a lawyer – in this case you will need a probate lawyer.
A will in New York must be signed at the end by the testator (the person making the will). It must also be signed by two witnesses that have nothing to gain from the estate (there are exceptions to this rule, which your lawyer will explain to you). The testator must sign in the presence of the witnesses, and the will must be notarised. Please note that New York does not recognise handwritten wills. If you would like to change, add to or remove something from your will, you can draw up a codicil, which, like the original will, must be signed in the presence of witnesses.
Depending on the size of your estate, the beneficiaries may have to pay an estate tax. In New York, taxes must be paid if the estate is one million dollars or more. Again, you should consult an attorney when dealing with these tax issues.
Adoption
Adoption is quite common in the United States: thousands of children are adopted each year and brought to live in the US by citizens and immigrants. It involves a rather complex process and can be affected by your residency status in the US.
Drinking & Driving
• Driving While Ability Impaired: (BAC of .05-.07). Carries a mandatory fine of $300 to $500, a maximum jail sentence of 15 days, and mandatory loss of licence for 90 days.
• Driving While Intoxicated (DWI): (BAC of .08 or higher). Carries a mandatory fine of $500 to $1,000, maximum sentence of one year in jail, and mandatory loss of licence for at least six months.
• Aggravated DWI: (BAC of .18 or higher). Carries a mandatory fine of $1,000 to $1,500, maximum sentence of one year in jail, and mandatory loss of driver’s licence for at least one year (If you get a second aggravated DWI within 10 years, the penalty increases to a mandatory fine of $1,000 to $5,000, a maximum of four years in jail and mandatory loss of licence for at least 18 months).
New York’s DWI law also criminalises driving under the influence of drugs or a combination of drugs and alcohol. This includes otherwise legal medication prescribed by a doctor. You must pay attention to the warning labels on your medication regarding whether it is safe to drive and mix with alcohol while you are taking it. For the full list of offenses and penalties you can check out the website for the New York Department of Motor Vehicles website, www.nydmv.com.
The US Constitution is the ultimate authority on every matter pertaining to law and government in the United States. Every statute, court decision or government action is held up to the Constitution – if it contradicts it, it will be struck down as contrary to the principles of the country.
The Constitution created three branches of the government: legislative, judicial and executive. The legislative branch creates law (or statutes), and the judicial branch interprets those laws. The executive branch is headed by the President of the United States, who is the Commander in Chief of the armed forces and oversees certain government agencies.
The Common Law system relies heavily on precedent: that is, decisions from courts that interpret statutes enacted by the legislative branch. Common Law also fills in any gaps not covered by statutes. The US also follows a federal system, which is a balance between state and federal law.
Legal Issues for Expats
Non-citizens living in the US enjoy the same legal rights as citizens. They are subject to the same laws and are entitled to the same protection from those laws. However, anyone who is not a citizen must be aware that many legal problems can have serious consequences regarding their ability to stay in the US. For example, a non-citizen accused of a crime may not only be sent to jail, but also deported. In addition, if your residency is based on marriage, your divorce many have serious consequences on that residency. Therefore, it is always best to consult an attorney experienced in immigration matters before proceeding with any legal issue.
Divorce
In the United States, divorce is governed by state law. There are six grounds for divorce in New York: cruel treatment, abandonment for one year or longer, imprisonment (of your spouse) for three years or longer, adultery, a court-granted legal separation for a year, or legal separation for a year through a signed agreement of the parties.
An uncontested divorce, in which the terms are agreed to by both parties and involves a simple division of property, can be completed in 30 days and will cost you anywhere between $250 and $2,500. In a contested divorce, however, your attorney will charge, which can cost between $175 and $450 an hour. In addition, your lawyer will probably ask for a down payment for his or her fees, also known as a retainer. You should also note that a complicated divorce, with lots of property or child custody issues to be settled, can take one to three years.
In order to obtain a divorce in New York, the state must have jurisdiction. You and your spouse must have married in New York and either of you must be a resident when the divorce proceeding starts, with one of you resident for one year immediately before. Alternatively, you and your spouse must have lived in New York as husband and wife, and live in New York when the divorce proceeding starts, as well as the year before. Lastly, you can also get a divorce in New York if either one of you has been a continuous New York resident for at least two years immediately before filing for divorce.
Legal Settlements
Child Support in New York is determined by its Domestic Relations law. Every parent is responsible for the support of their child until the child reaches 21 years of age. In determining custody and child support, the governing principal for the court is the best interest of the child. The court will calculate the basic child support and obligation, considering many factors, including the non-custodial parent’s proportionate share. In terms of child custody, again the court will balance a number of factors, with the foremost priority being the best interest of the child.
For both custody and child support, parents are free to come up with their own reasonable agreement and waive the law. For example, if the parents agree that the child would be better off living with one parent most of the time and spending holidays with the other, that would be ok with the court, as long as it is in the child’s best interests. Also, one parent may agree to pay more for the child’s support based on the fact that that parent earns significantly more money than the other.
New York alimony laws are gender-neutral. The court will look at several factors when determining whether either party gets alimony and how much, including the standard of living during the marriage, the circumstances of the divorce, the duration of the marriage, and the age and health of the parties. They will also consider whether the potential recipient of the alimony was out of work while married, and what, if any, professional opportunities that person passed up in order to raise children, and so on.
In terms of division of marital property, New York is an equitable distribution state. That means that the court, looking at the particular facts of the case, will divide the assets and debts acquired during the marriage according to the contributions of each spouse. The court will look to the length of the marriage here as well, usually when the marriage has been 20 years or longer, the court will divide the property 50/50, but again, this depends upon the specific facts.
Making a Will
While it is perfectly legal in New York to make your own will, as with all other areas of law, you should consult a lawyer – in this case you will need a probate lawyer.
A will in New York must be signed at the end by the testator (the person making the will). It must also be signed by two witnesses that have nothing to gain from the estate (there are exceptions to this rule, which your lawyer will explain to you). The testator must sign in the presence of the witnesses, and the will must be notarised. Please note that New York does not recognise handwritten wills. If you would like to change, add to or remove something from your will, you can draw up a codicil, which, like the original will, must be signed in the presence of witnesses.
Depending on the size of your estate, the beneficiaries may have to pay an estate tax. In New York, taxes must be paid if the estate is one million dollars or more. Again, you should consult an attorney when dealing with these tax issues.
Adoption
Adoption is quite common in the United States: thousands of children are adopted each year and brought to live in the US by citizens and immigrants. It involves a rather complex process and can be affected by your residency status in the US.
Drinking & Driving
• Driving While Ability Impaired: (BAC of .05-.07). Carries a mandatory fine of $300 to $500, a maximum jail sentence of 15 days, and mandatory loss of licence for 90 days.
• Driving While Intoxicated (DWI): (BAC of .08 or higher). Carries a mandatory fine of $500 to $1,000, maximum sentence of one year in jail, and mandatory loss of licence for at least six months.
• Aggravated DWI: (BAC of .18 or higher). Carries a mandatory fine of $1,000 to $1,500, maximum sentence of one year in jail, and mandatory loss of driver’s licence for at least one year (If you get a second aggravated DWI within 10 years, the penalty increases to a mandatory fine of $1,000 to $5,000, a maximum of four years in jail and mandatory loss of licence for at least 18 months).
New York’s DWI law also criminalises driving under the influence of drugs or a combination of drugs and alcohol. This includes otherwise legal medication prescribed by a doctor. You must pay attention to the warning labels on your medication regarding whether it is safe to drive and mix with alcohol while you are taking it. For the full list of offenses and penalties you can check out the website for the New York Department of Motor Vehicles website, www.nydmv.com.
