MRS. LO'S TAKE ON "LOVING DAY"

From June 12, 2013, "Loving Day" - TIME FOR A MRS. LO STORY, FOR LOVING DAY - June 12 is "Loving Day," a tribute to Mildred and Richard Loving. This married couple was arrested in Viringia in 1958 for violating anti-miscegenation laws, which prohibited inter-racial marriage, specifically between non-whites and whites. Their case went up to the U.S. Supreme Court and on June 12, 1967, the Warren Court handed down its decision in "Loving v. Virginia," striking down anti-miscegenation laws as violative of the equal-protection clause, which is to say, unconstitutional. The couple then returned to Virginia, where they raised a family of three children and remained together until Richard died in a car accident in 1975. Mildred died in 2008. Each year, Loving Day is celebrated for the Lovings and other mixed race couples. Growing up in an inter-racial family in the 1970's was often no picnic for little Mrs. Lo and her brother. But it made me a stronger person, and planted in me an intolerance for intolerance. And so, from Mrs. Lo to everyone who teased or gave me a hard time, due to being "mixed race"  -- I truly thank you -- because I could never have stood up to authority all my life, could never have taken on the challenges I have, could never have been as good a lawyer as I am, and could never have done half the things I've done had it not been for you. I say this without a trace of bitterness, at my age I am at peace with all the storms I have battled through and am thankful for the soft place to land my husband and kids and I have created. And, watching Lolo and Lola (my parents) stick together over 49 years has taught me an indelible lesson in the meaning of true love. Race, gender, same-sex, opposite-sex, socioeconomic status, let it go people, just be at peace with people loving whom they will, and enjoy LOVING day  Mrs. Lo

WHO'S THE PARENT ANYWAY

WHO'S THE PARENT ANYWAY?  Christian has really been insisting that I delete my Instagram account.  "Why would I do that," I asked, "I love Instagram."  It's true, I love taking pictures, I love the hashtags, I love that 90% of the photos for the Hashtag "#Crewmom" are mine.  I put up pictures of my shoes, nailart, rowing, family pics, things I think are interesting.  But my 12 yo son stated his cause so succinctly and on the money, that I had to relent.  Because, Christian answered, "Instagram is for teenagers and you're not a teenager."  True enough and definitely true.  The lesson:  it's really important that we listen to our kids and teach them that they can talk to us about what bothers them, and that the reward is, we will listen and, if necessary, take action.  Here was my 12 yo coming to me with something important to him.   He didn't go to his peers, his coaches, his teachers, he went straight to Mom, with the expectation that Mom would listen. And while I love Instagram, I don't love it as much as I love my son, as much as I want him to grow up to be a good person, not a frustrated kid that gets ignored.  Ever the lawyer, we cut a deal.  If Christian creates a walk in pantry for me out of my junk room by his birthday (June 21), Mrs. Lo will delete Instagram and Vine.  I can, however, keep my 3 Facebook accounts and 2 Twitters, and he will not get Facebook or Twitter (believe me, he's not interested).  So far, the junk room is looking pretty good.  My gosh, these negotiations were like the Versailles Peace Treaty.  But more fun, and I get a walk in pantry out of it.  Who's Henry Kissinger now?  Have a great day, everyone!  <3  #MrsLo

Wouldn't it be great is US v. Windsor were decided on the anniversary of US v. Loving?

We are all on "Windsor Watch," awaiting the decision of the U.S. Supreme Court in U.S. v. Windsor, as well as the Proposition 8 case.  Regardless of whether the Windsor case

is decided on the grounds of States' rights, federalism, or whatever else is in the Court's toolbox, the Defense of Marriage Act needs to be overturned.  While Mrs. Lo is staunchly pro-same sex marriage, the reason the Windsor case needs to be affirmed is because the federal government simply has no jurisdiction over Family Law and the DOMA act should never have been enacted.

Today, June 12, is the 46th year anniversary of the U.S. Supreme Court's decision in Loving v. Virginia, 388 U.S. 1 (1967).  Mildred and Richard Loving, then a young married couple, were arrested in 1958 for violating the anti-miscegenation laws, which existed in 16 states at the time, including Virgina, and prohibited marriage between whites and non-whites.  The Lovings, were convicted (they had a child by this time), and their motion to vacate was denied.  The Circuit Court affirmed in part, reversed and remanded and the conviction went up on appeal to the Warren Court.

In one of Mrs. Lo's favorite written decisions ever, the U.S. Supreme Court declared Virginia's anti-miscegenation statute, known as the "Racial Integrity Act of 1924" as violative of the equal-protection clause and therefore unconstitutional.  This rendered the remaining 15 state anti-miscegenation statutes unconstitutional and gave all couples the freedom to marry -- unless those couples were of the same sex.

This brings us to present day, and I have written extensively on the US v. Windsor case, as Edith Windsor is a New Yorker and a personal hero of mine.  Due to the DOMA, although validly married in Canada, and although her marriage to her deceased spouse is recognized now under New York State Law, she still had to pay over $360,000.00 in estate taxes because her marriage was not recognized under Federal Law.

Today is celebrated as "Loving Day" throughout the country, and couples who are of different races are celebrated.  Wouldn't it be great if same sex couples were given the same freedom on Loving Day, by having the US Supreme Court decide US v. Windsor and strike down the DOMA once and for all?  We should call it Loving-Windsor Day if that happens.

NYS Judges are Suing NYS for $51 Million in Salary Increases

The case of "Pines v. State of New York" is now being argued before the Appellate Division, Second Department.  State Judges, from New York State's Supreme Court, argue that the $51,000,000.00 appropriation by the NYS Legislature is lawful.

At issue are retroactive raises of 27% between April 1, 2005 and April 1, 2009.  The raises were to increase in 4 steps from the then amount of $136,770.00 per year for Supreme Court Justices to $174,000.00 per year between April 2005 and April 2009.

The following is quoted from today's New York Law Journal:  "In her 2011 ruling in Pines, Nassau County Supreme Court Justice Karen Murphy accepted the plaintiffs' argument that the Legislature's appropriation of $51 million was sufficient to make the raises legal.

Murphy said the appropriation met the requirement that has been in the state Constitution since the 1920s that judicial pay raises be "established by law" (NYLJ, Feb. 14, 2011).

"The State Constitution does not mandate a specific format for judicial salaries, and consequently, Chapter 51 is enforceable as it stands," Murphy wrote in Pines v. State of New York, 13518/10.

The lead plaintiff is Suffolk County Supreme Court Justice Emily Pines. Other plaintiffs are Supreme Court Justice David Demarest in St. Lawrence County, Acting Queens Supreme Court Justice Jeffrey Lebowitz, Supreme Court Justice Stephen Ferradino in Saratoga County, Supreme Court Justice Ralph Boniello in Niagara County and Nassau County Court Judge Joseph Calabrese." 

CAN MY SPOUSE AND I FILE UNCONTESTED DIVORCE PAPERS OURSELVES?

Yes.  You can.  It is difficult, but certainly not impossible.  

NYS puts the Uncontested Divorce Package online, along with a booklet explaining how to do it.  You will need to read the booklet very carefully and pay very close attention to it.  I would read the booklet once to understand it, then read it again, highlighting with a yellow highlighter what you need to do.  This packet works best for people who have already been separated for a while and have already separated their finances.  It is also easier to use these forms where there are no children of the marriage, your children are grown, or you have already worked these matters out in Family Court with an order of custody and visitation as well as a child support order.  Here is the link to the Uncontested Divorce Forms and Instruction Booklet.  Remember, that unless you qualify for and make application for "in pauperis" status, you will need to write checks out to your local County Clerk's office for various filing fees, starting with the Index number application.  Here is the link:  http://www.nycourts.gov/divorce/forms.shtml

WHAT IS A LEGAL SEPARATION?

One of the most common questions I get asked is:  "What is a legal separation" along with, "what is the difference between a separation and a divorce?  Let's start with what a "legal separation" means in New York State.  This refers to a document, executed in the form that would entitled a deed to be recorded, which settles all issues which would be addressed during a trial, except for grounds for divorce.  Thus, it would cover custody, child support, maintenance, equitable distribution and legal fees.  A separation agreement is the document which is executed by both parties, typically drawn by a lawyer advocating for one party.  There must be a total agreement on all issues.  This comes under the category you can lead a horse to water but you can't make a horse drink.  Thus, you may have the best of intentions, wanting an amicable agreement, but if the other person is not on board, that person will not execute the agreement.  However, once an agreement is executed, you have a CONTRACT.  Thus, if there are important issues which may need to be enforced some day, such as support or installment payments, you may want to take it further and convert the CONTRACT into a judgment of divorce.  Otherwise, if the other party does not comply, your only remedy is to sue on a breach of contract.  Whereas if a party does not comply with a judgment of divorce, there are legal remedies, such as contempt of court.

FAMILY COURT PROTECTION FOR PERSONS IN "INTIMATE RELATIONSHIPS"

People may not be aware, but should be, that the Family Offense Statute, which is implemented in both Family Court and the criminal courts, now includes protection for people in "intimate relationships."  The original statute limited Family Offense protection to victims that were narrowly defined.  To bring a family offense petition, the original statute required the Petitioner to establish a "family" relationship, defined as spouse, parent, sibling, etc., or have a child in common.  This necessarily left out persons involved in "intimate relationships" such as same sex couples, domestic partners, boyfriend-girlfriend situations, and even senior citizens who often choose not to re-marry because they wish to preserve inheritance rights for their grown children and grandchildren.  The definition of a Family Offense now includes persons involved in "intimate relationships."  A court will look at the nature and type of relationship (need not be sexual), the frequency of interaction and the duration of the relationship.  Casual acquaintances and ordinary relationships are specifically excluded from the statute.  

From the Office of Prevention of Domestic Violence:  "In domestic violence cases, an order of protection can be issued in criminal and/or civil court. The civil venue for these proceedings in New York State is 

Family Court; domestic violence victims must fall within the Family Court‘s personal jurisdiction, and then the allegations must fit within the ―family offense‖definition, described below, in order for the victim to request a civil order of protection.

Domestic Violence is Legally Defined by a Combination of Relationship and 

Behavior.  New York State does not define ―domestic violence‖ for criminal court and Family 

Court proceedings. Instead, New York State uses the term ―family offense‖ to 

capture certain crimes3 when they are committed between ―family or household 

members.‖ Before the 2008 Expanded Access amendment, ―family or household 

members‖ included persons: related by consanguinity (blood relatives) or affinity (through marriage); 

married or formerly married; or with a child in common. Individuals who were married to, formerly married to, or had a child in common with the person who had abused them, were eligible to petition for an order of 

protection in both criminal court and Family Court. Those who fell outside of that 

definition could proceed in criminal court, but were not eligible for Family Court. 

Limitations of New York’s “Family Offense” Structure

Over the years, New York State‘s laws have provided increasing protections for

those domestic violence victims who fell within the ―family or household member‖ 

definition. However, those same protections did not extend to many other victims.  A victim seeking a divorce, separation, or annulment, can also request an order of protection in another civil court, Supreme Court.  Family offenses/crimes: disorderly conduct, harassment in the first degree, harassment in the second 

degree, aggravated harassment in the second degree, sexual misconduct, forcible touching, sexual abuse 

in the third degree, sexual abuse in the second degree as set forth in subdivision one of section 130.60 of 

the penal law, stalking in the first degree, stalking in the second degree, stalking in the third degree, 

stalking in the fourth degree, criminal mischief, menacing in the second degree, menacing in the third 

degree, reckless endangerment, strangulation in the first degree, strangulation in the second degree, 

criminal obstruction of breathing or blood circulation, assault in the second degree, assault in the third 

degree or an attempted assault.   Many people felt that the definition inappropriately excluded 

a large number of similarly situated victims from access to a critical civil remedy, including dating or unmarried couples, same sex couples, and adolescent and many elder couples, and that the definition no longer reflected the nature of families and households 

today. 

The 2008 Expanded Access Law

In 2008, New York State expanded its legal definition of ―family or household 

member‖ to include, ―…persons who are or have been in an intimate relationship 

regardless of whether such persons have lived together at any time.‖4 For the 

purposes of this report, we will refer to these newly qualified individuals as 

―intimate partners.‖5 This change in definition means that intimate partners now 

have the same legal rights and protections as victims who were already covered 

by the law. These benefits include the following:

an intimate partner victim can seek an order of protection from Family 

Court in addition to, or instead of, pursuing criminal court options;

the court must enter the order into the statewide Order of Protection and 

Warrants Registry, which police consult when called to enforce an order of 

protection; police officers must, when responding to a domestic violence complaint, 

complete a Domestic Incident Report (DIR), regardless of whether a crime 

is alleged or an arrest is made, and must provide the victim with a copy;

police officers must make an arrest according to the mandatory arrest

provisions for family offenses in the Criminal Procedure Law § 140.10(4); 

and police officers must determine which party is the primary physical 

aggressor when two parties both allege domestic violence misdemeanors. 

The law enumerated factors the court may consider in determining whether a relationship is an 

"intimate relationship," including, but not limited to: the nature or type of relationship, regardless of 

whether the relationship is sexual in nature; the frequency of interaction between the persons; and the 

duration of the relationship. The law also clarified that “Neither a casual acquaintance nor ordinary 

fraternization between two individuals in business or social contexts shall be deemed to constitute an 

’intimate relationship.’"

This is a definition of convenience for this report: ‘intimate partner’ is commonly used to refer to a 

broader category of individuals that includes married and formerly married and those with a child in 

common.NYS Expanded Access Report October 12, 2011

This change impacted other legal areas that reference the family or household

definition as well, such as: 

enhanced criminal contempt charges that apply only to violations of family 

offense orders of protection;

alternative voting options that maintain the confidentiality of the victim‘s 

address; and

protections against workplace discrimination based on an individual‘s 

status as a domestic violence victim.

Since most enhanced provisions in domestic violence-related laws reference the 

family or household definition, future laws will likely utilize this more inclusive 

definition of victim of domestic violence. For example, during the 2011 legislative 

session, the Social Services definition of ‗victim of domestic violence‘ was 

amended to include the new category of ‗intimate partner.‘6 Social Services laws 

and regulations had already included unrelated individuals living in the same 

household or having regular access to one another‘s household, but adding the 

intimate partner category created a more comprehensive definition, so that all 

individuals who are eligible for a civil order of protection have corresponding 

eligibility for residential and non-residential domestic violence services."