DIVORCE

Answer:

From your question it seems that you have a Conditional Green Card (the card expires in 2 years) and you may have a problem to remove the Condition and
to receive a Permanent Green Card. I would recommend you to consult with an immigration attorney to have a clear strategy how avoid negative consequences.

Anatoly Kissen

Answer:

You need to have your passport and original divorce certificate (if you were divorced).

Anatoly Kissen, Esq.

Answer:

Dear Maxim,

Each State has its own laws and divorces are under the jurisdiction of State laws. However, Immigration (under INA) is the Federal Law must be handled accordingly. The practice of withholding documents from illegal aliens is a common practice in Federal Courts and INS. With regard to a State Judge I would recommend you to consult with local attorney.

Best Regards,

Anatoly Kissen, Esq.

Anatoly Kissen, Esq.

Answer:

Dear Elena,

As I understand from your email, you have already received a so called "conditional" green card because at that time you were married for less then two years. Now you are in the process of removing this "condition" and receiving your permanent card. Unfortunately, your relationship with your husband has worsened and you are not sure if you want this marriage continued any longer. The law is relatively clear on this subject. If you divorced your husband it means that he is not supporting your application for permanent card based on your marriage and you have to self-petition INS to remove the condition. However, the law provides you an opportunity to apply in both cases, if you still married or already divorced. The requirements for such self-petitions are quite different for still married and divorced applicants and the INS is quite strict with self-petitions. Additionally, you have mentioned an element of verbal abuse present in you relationship with your husband and it may and should be used in your favor I highly recommend you to consult with a competent immigration attorney and based on your specific circumstances to devise a smart strategy of getting your permanent green card. As you correctly mentioned, so much depends on the right strategy and you cannot afford to make a mistake.

Anatoly Kissen, Esq.

Answer:

Dear Alex,

As United State Citizen you have right to bring your fiancee or wife in the United States and/or apply for her Permanent Resident Status (green card) outside or in the United States. There are K-1 (fiancee) and K-3 (wife) visas available to her if you wish her to move to US immediately and then receive her green card. You also can apply for the green card when she is in Russia and only after getting the card move to US. There are slightly different procedure for K visas. My preference is K-1. And there are different procedure if you wish her to get the green card in Russia.

But in both cases you have to consider that your fiancee/wife will have her residence in the United States for extended period of time. It does not mean that she cannot travel and be with you when you are in Russia, but you have to be quite careful not to jeopardize the card if she spend more time outside of the US.

It is very difficult to satisfy the INS requirements for the K visas and/or green card application without professional help. If you do it outside of US the "Consular" process is even more complicated. This is hopefully done just once in a life time and you need to have help of competent immigration attorney.

Anatoly Kissen, Esq.

Answer:

Dear Svetlana,
As United State Citizen your husband has right to bring his fiancee or wife in the United States and/or apply for her Permanent Resident Status (green card) outside or in the United States.

There are K-1 (fiancee) and K-3 (wife) visas available to you if you wish to move to US immediately and then receive the green card. You also can apply for the green card when you are still in Russia and only after getting the card move to US. There are slightly different procedure for K visas. My preference is K-1. And there are different procedure if you wish to get the green card in Russia. It is quite difficult to satisfy the INS requirements for the K visas and/or green card application without professional help. If you do it outside of US the "Consular" process is even more complicated. This is hopefully done just once in a life time and you need to have help of competent immigration attorney.

Feel free to contact me if and when you wish to proceed and I will provide detailed instruction for you and your husband.

Anatoly Kissen, Esq.

Answer:

Family lawyers know to engage a forensic accountant in all but the simplest cases. In addition to normal divorce related tasks like investigating finances, the accountant will sometimes be asked to perform tax services. There are occasions, however, when the client would be better served by involving a tax lawyer. Some of these are:

- When income tax returns have not been filed: The knee-jerk reaction of most CPAs to file immediately is a trap for the unwary. The failure to timely file tax returns can be a civil tax or criminal tax matter. If it is a criminal act, filing the tax return later does not erase the crime. There is no red-line separating neglect from willful conduct. Only a tax lawyer can investigate and advise someone about the consequences of filing delinquent returns. An accounting trial-expert cannot be clothed in the attorney client privilege.
- When prior filed returns contain serious errors or omissions: The considerations are similar to filing delinquent returns in that the amendment does not erase a crime committed although is can be offered to suggest that no crime was intended. Filing an amended tax return is an admission that the return filed was inaccurate and of the amount of understated tax on the original return. Only a tax lawyer can safely investigate and advise if returns can be amended without increasing the risk of criminal sanctions or excessive civil penalties.
- When tax returns under audit contain the potential for tax fraud to be charged: This is sometimes called an “eggshell audit.” In a sense you are walking on eggshells hoping that the revenue agent will not reach that conclusion. If the agent feels there is fraud, he will suspend the audit and refer the case to the IRS Criminal Investigations Division. The taxpayer wants to cooperate as long as the case is not a criminal matter and he or she is not thereby waiving Fifth Amendment rights. A CPA should not handle this kind of audit.
- An IRS audit of your client has resulted in a large proposed additional tax liability: Only a tax lawyer can properly consider the optimum procedure for appealing the disagreeable result. While a CPA can file a protest, which may or may not be appropriate, he cannot practice in the United States Tax Court and is unfamiliar with concepts of choice of venue in tax disputes.
- When property is to be received in a divorce settlement after IRS tax liens have been recorded. Even if your client has filed separate income tax returns the liens can attach to his or her interest in marital property that was jointly owned. The priority of tax liens is a legal matter that should be handled by a tax lawyer.
- When your client has received an IRS summons, Notice of Federal Tax Lien, Notice of Intent to Levy, Statutory Notice of Deficiency or similar formal notice from IRS. These are important procedural notices that require definite steps to preserve legal rights under the Internal Revenue Code. Only a tax lawyer can properly assess the implications of such notices and your client’s legal rights.
- When an IRS Special Agent contacts your client. The Special Agent is a criminal tax investigator. He doesn’t care about collecting the tax. He job is to collect evidence that will put the client, and sometimes the lawyer as well, in jail.
- When IRS contacts your client about a tax debt that he or she believes is attributable to a former spouse. Form 8857, Request for Innocent Spouse Relief, is a tricky, legal document that requires skilled legal preparation.
- When the division of marital assets anticipates a transfer of money or property out of one spouse’s controlled corporation. Corporate distributions may have unintended tax consequences unless the transfer is made part of a properly structured corporate redemption or reorganization. These are complicated transactions that should be overseen by a tax lawyer.
- When a QDRO, a legal document, is required. If a non-lawyer prepares the QDRO and gives it to the family lawyer who files it with the court, the family lawyer may be adopting the non-lawyer’s work product as his or her own. Using a tax lawyer to draft the QDRO eliminates that concern.

These are some matters that come up during divorce cases and are more aptly handled by a tax attorney than by the forensic accountant. If the tax lawyer feels accounting assistance is necessary, he or she will engage an accountant to assist in rendering legal advice to the client. In this way, the accountant comes under the attorney-client umbrella.

© 2007 by Robert S. Steinberg, Esquire

Robert S. Steinberg, Esquire

Answer:

Mr. Benjamin Newton, citizen of USA, addressed us with a request to restore his certificate of marriage, which was registered in 1965 in New York. The claimant himself has been living in California with his wife for 40 years, and he needs restoration of marriage certificate in order to effectuate retirement pension.

Our specialist in New York addressed the archive of registration of civil records in City Hall with a request to restore the marriage certificate. Complex of requests revealed that within the period from 1960 till 1970 no marriage was registered between Benjamin Newton and his wife Sara. The recommendation to apply to Albany with a similar request demonstrated the same result.

As a result of detailed investigation it was established that this marriage was a religious marriage – without further obligatory state registration. Thus, for more than 40 years the spouses have been living without registered marriage, which does not give rise to rights and obligations of spouses stipulated by the law.

Natalia Gourari

Answer:

Your entitlement to claim children as tax exemptions is dependent upon your compliance "with the IRS rules". You wife should give up unless she can show that the agreement you have was unfair when entered into or that there has been unanticipated and unreasonable change in circumstances. This is extremely difficult to accomplish.

Natalia Gourari

Answer:

The portion of the disability pension that represents compensation for personal injuries is your separate property but you bear the burden of proving the portion that reflects compensation for personal injuries. The portion of your disability that represents deferred compensation to which you would be entitled as the employee of the company but for the injuries is marital property subject to equitable distribution. So, if you can't show which portion of your PI award is for personal injuries and which portion is deferred compensation, the court will distribute the entire award.

Natalia Gourari

Answer:

You benefits are subject to equitable distribution only to the extent they accrued during the marriage. The calculation of the value of benefits for the purposes of distribution, are not limited to value as of date the action was commenced, and will be calculated based on their value at the time of your divorce trial or settlement.

Natalia Gourari

Answer:

Whether or not you will succeed in court depends upon the reasons why you do not wish to give Ariela to Borya away from your home. Is it because you are angry at Borya for not supporting you during pregnancy? Is it because Borya is maniac depressive? Is he incapable when it comes to changing diapers and providing proper nutrition for Ariela? Are members of his family raving lunatics? Chances are there are not. In that case you should work out some reasonable schedule - perhaps a schedule where Borya will see Ariela several hours a week until she is 1 or 2 years old. If Borya is a threat to the child, when you are in court - be careful to back up all of your complaints against Borya with hard evidence. You will certainly need a competent lawyer. Where mothers have filed false child neglect complaints against their boyfriends - in some extreme cases -- mothers have lost custody because they were allegedly alienating the fathers from the children. Remember, the court will look at the best interests of the child, not yours or Borya's. The presumption is that its best for the child to have meaningful relationship with both parents - you and Borya.

Natalia Gourari

Answer:

Yes, if you start an action under Article 10, Family Court Act. Father's parental rights can be terminated by Family Court upon a finding of abandonment where father failed to visit or communicate with his child during six month period prior to filing of petition.

Natalia Gourari

Answer:

You can't get it completely back. But you should start action for partition - division of the marital home. The proceeds would normally be divided 50/50 but you may be required to reimburse your former wife for your share of mortgage, taxes, improvements when the house is sold.

Natalia Gourari

Answer:

Unfortunately, whether or not you want to have anything to do with Kate, if Kate believes you are her father and you have conducted yourself that way, you would have to continue to be her father and be financially responseible for her until she is 21. You will have to pay child support for Kate. This is because the Courts look at what's best for the child, not for you. Of course, if Kate's biological father wants to take care of Kate, you might be off the hook.

Natalia Gourari

Answer:

Yes, because your income exceeds the minimum allowable amounts (a.k.a. - minimum monthly maintenance allowance [MMMA]). Medicaid program is jointly funded by federal and state governments to pay for medical care for those whose income and assets are insufficient to pay for their medical needs. See, 42 U.S.C. § 1396, et. seq.; Social Service Law Article 5 Title 11; and Golf v. New York State Dept. of Social Services, 91 N.Y.2d 656 (1998). Where one spouse requires long-term institutional care, other spouse is permitted to retain minimum level of income and certain amount of assets (a.k.a- community spouse resource allowance [CSRA]). See, Social Service Law §§ 366-c(2)(d)(g)(h); 366-c(2)(d)(h); and 18 NYCRR 360-4.10(4)(8).

Natalia Gourari

Answer:

Marital property specifically excludes compensation for personal injuries. See, DRL § 236(B)(1)(d)(2)(5)(a). However, where unallocated settlement proceeds are made payable to both spouses, court, in the context of a divorce action, must determine what portion represents compensation for injuries and what portion, if any, represents award for loss of consortium claim.

Natalia Gourari

Answer:

Your entitlement to claim children as tax exemptions is dependent upon your compliance "with the IRS rules". You wife should give up unless she can show that the agreement you have was unfair when entered into or that there has been unanticipated and unreasonable change in circumstances. This is extremely difficult to accomplish.

Natalia Gourari

Answer:

The portion of the disability pension that represents compensation for personal injuries is your separate property but you bear the burden of proving the portion that reflects compensation for personal injuries. The portion of your disability that represents deferred compensation to which you would be entitled as the employee of the company but for the injuries is marital property subject to equitable distribution. So, if you can’t show which portion of your PI award is for personal injuries and which portion is deferred compensation, the court will distribute the entire award.
This answer was prepared by Natalia Gourari: http://www.lex.su/gourari.php

Natalia Gourari

Answer:

You benefits are subject to equitable distribution only to the extent they accrued during the marriage. The calculation of the value of benefits for the purposes of distribution, are not limited to value as of date the action was commenced, and will be calculated based on their value at the time of your divorce trial or settlement.

Natalia Gourari