Updates to Leandra's Law Makes Driving Intoxicated with a Conditional License a Felony

Today I wanted to let you know about a new and very important change in New York State Law amending the law currently known as "Leandra's Law" or the Child Passenger Protection Act.

As you should be aware, Leandra's Law imposed strict penalties on the operation of a vehicle with children in the car while intoxicated. It mandated that an ignition interlock device, or IID, be installed in the vehicle of anyone convicted of driving while intoxicated. Furthermore, if a person is convicted under the law, they will be reported to The Statewide Central Registry of Child Abuse and Mistreatment.

Recently, Governor Cuomo signed legislation to make Leandra's Law even tougher. The new law makes it a class "E" felony to drive intoxicated on a conditional license rather than just a traffic infraction, which is not a crime. Driving while intoxicated with a revoked license will remain a felony.

The law also limits the circumstances when Court can waive the installation of the IID. Now the installation can only be waived when the person swears under oath they are not the owner of any motor vehicle and will not drive during the period of the interlock restriction. If the person lies under oath, it is considered perjury, which is a felony.

Obviously, every driver should drive safely and responsibly, but contact an experienced DUI attorney in the event that you are charged with a DWI or any traffic offense.

Kevin P. McKernan is a member of the National College of DWI Attorneys. 

Divorce in the Social Media Age

Divorces are often stressful, conflict filled events. Add technology such as cellphones and social media into the mix and divorce can be downright troublesome. Many people are not aware that what they say or do online can affect life outside the virtual world, especially during legal dispute such as divorce. Here are some helpful tips on what you should avoid doing online during a divorce.

1. Remember that anything you put on Facebook or other social media sites is public and can therefore end up in anyone's hands, even if you enable a "Friends Only" privacy setting. You don't want to look bad in a courtroom when the opposing attorney brings up your not-so-amicable Facebook statuses. You should never share anything on social media that you wouldn't want brought up in a courtroom.

2. Don't forget to change your passwords. Attorneys always advise getting rid of any shared bank accounts or credit cards during your first divorce consultation, but often forget to advise their clients to change their social media passwords. In such an emotionally charged time, one spouse may log into the social media accounts of the other and not only "hack" the account by posting unflattering statuses or comments but read private messages. You should also think about how you plan on separating things like cell phone service accounts. These contracts can often be expensive to break, so try to plan for the financial hit.

3. Remember that your soon-to-be-ex may also post unflattering things online. Facebook, Twitter and/or other social media updates can and have be used as evidence that a particular person is lying to the court. There have been countless divorce cases where one partner tries to hide certain assets or income from the court in order to look financially destitute when he or she isn't. If your soon-to-be-ex is claiming unemployment while uploading pictures of brand new vehicles to Facebook, you can submit that evidence into court.

4. Texts and e-mails are also admissible as evidence. Use caution when sending your soon-to-be-ex or even mutual friends texts or emails about things pertaining to your divorce. Remember, almost anything you write can be used in court.

If you keep these tips in mind, you will be able to avoid unnecessary stress during the divorce process. Remember, if you have any questions or concerns during the divorce process, you should consult with your lawyer before you take any action.

Pre-Nuptial Agreements are Important!

In the past, a "pre-nuptial" was considered to be sensitive conversation topic with a decidedly negative association. Celebrities or those born into fortunes were the only people who signed pre-nupital agreements. Today, pre-nuptial agreements are now considered truly smart financial planning for the future. With couples now facing a 50% divorce rate and increasingly complex financial dynamics, it is incredibly important to draw up a pre-nupital that will protect the future of both you and your soon to be spouse.

Pre-nuptial Agreements are legal agreements drawn up before a couple is legally married that outlines how the couple's finances will be handled in the event of a divorce. Pre-nupital agreements are useful because they capitalize on the good will a couple has in plenty while in their honeymoon stage. This is the ideal time for the couple to work together as partners and come to a financially sound and fair agreement for both parties. If the relationship does come to an end, not only will the couple experience reduced stress since there is no need to work out the financials, but both partners will be protected.

As an attorney, I recommend pre-nuptial agreements for all my clients, but pre-nuptials are especially important for couples who are planning on bringing assets into the marriage. Some clients mistakenly believe that only those with large or significant assets need a pre-nuptial agreement, but this is a common misconception. Pre-nuptials are a great way to protect your hard-earned assets if a "worst-case" scenario arises, so why not make sure your future is safeguarded? Pre-nuptial agreements are also important for those who have children from a prior relationship, those who will be receiving an inheritance, and those who are financially supporting their partner through university or professional school. Basically - if there are factors that could financially complicate your marriage, it is better to work them out and set them onto a legal document now.

Another great thing about pre-nuptial agreements is that they are easy to draw up. Those looking into pre-nupital agreements simply need to contact a lawyer who is well-versed in the family law of your state to discuss your options and what you kind of stipulations you personally would like in your pre-nuptial. You are able to customize your pre-nupital agreement to include stipulations about your pets, living situation, and even infidelity. A lawyer should be able to write the specifications you desire into your agreement and answer any questions you and your partner may have.

 If you have any further questions or concerns, feel free to reach me at my office.

- Kevin P. McKernan

Four Important Documents for Recent Divorcees

The process of getting a divorce can be long, drawn-out and draining on both your time and emotions. As with any big life change, you must remember that this is also an important time to review and if necessary update your legal documents. Below is a list of legal documents you should review again as soon as possible after the divorce.

The Ins and Outs of Loan Modification

If you have had trouble paying your mortgage each month and/or your home is at risk for foreclosure, you may have been told to look into mortgage modification. In fact, in 2012, five of the country's biggest banks came to a settlement agreement with the government so that more homeowners could gain access to loan modifications if they were experiencing financial hardship.

How Loan Modifications Work
When you apply for a loan modification, you must send in a bevy of financial documents. Your mortgage bank is looking to calculate the percentage that your monthly mortgage and insurance payment takes in relation to your monthly gross income. This is commonly known as your "debt to income" ratio. If your lender sees that your "debt to income" ratio is too high for you to make your monthly payments without financial hardship, they will make you a modification offer, which you as the homeowner may either accept or deny. In order to make your payments more affordable, your mortgage lender may lower your interest rate for a certain amount of years, forgive certain loan amounts, and/or extend the term of your loan.

Unforeseen Consequences
However, for many people, loan modification was not the catch-all solution that they hoped for. Modifications require a lot of time and paperwork, with banks often dragging their feet during the process. Additionally, in some circumstances, certain modifications can actually negatively effect you in the long run. The negative aspects of loan modifications can be seen in this statistic given by the Comptroller of the Currency, John Dugan, who asserted that in 2008 over 53% of loan modifications in the United States resulted in another default after six months.

How to Get Help
If you are considering a loan modification, make sure you seek legal counsel before you do so! It is incredible how many people make the mistake of signing an incredibly important legal document without first consulting an attorney. A good lawyer will be experienced in loan modifications, having assisted clients with them many times before, and can correctly gauge whether or not the modification is the best for your unique financial future.

If you are a homeowner who was taken advantage of by unscrupulous mortgage lender, you still have options. There are ways to stop or delay the foreclosure sale of your home. If you find yourself in this situation, it is crucial that you consult an attorney. At the height of the housing boom, mortgage notes and other financial documents were passing through banks at a never before experienced speed. This resulted in a high amount of clerical error and sometimes illegal financial practices. An attorney can closely review your case to check for substandard practices that you could potentially change the outcome of your foreclosure.

If you are struggling with a loan modification, feel free to contact me at my office at (718) 317-5007.

- Kevin McKernan

Drug Tests at Work & Your Rights

Drug testing for employees has became standard in many industries. This has left many people wondering about the legalities of this process. Unfortunately, it is hard to find a universal answer since laws and regulations vary widely from state to state.

How to Hire a Real Estate Attorney

Buying or selling a house is decision that can seriously impact your financial future. When making important financial decisions such as this, I always recommend that you consult a legal professional. Some potential homeowners try to go through the process with only a real estate agent, but while a real estate agent is familiar with the process of selling and buying homes, they are not knowledgeable about real estate law. They will not be able to advise you on the legal implications of the contract you sign during the closing process. Only a real estate attorney can provide you with proper legal advice.

Common DWI/DUI Defenses

I recently received a NHTSA packet titled “Challenges and Defenses II: Claims and Responses to Common Challenges and Defenses in Driving While Impaired Cases”. I thought it would be useful to share this information to those who are or have a loved one who is facing driving while impaired charges.

Aggravated Assault Becomes Class "E" Felony

A law concerning aggravated assault was recently amended by Governor Cuomo. Penal Law 120.12 originally made it a Class E felony for a defendant who was 18 years or older to have committed assault in the third degree against a child if the defendant had been previously convicted of such a crime within the past three years. Governor Cuomo has signed an amendment into law that mandates that the look back period be extended to ten years instead of just three. This means more offenders who commit assault on a child can be prosecuted.

In New York, there are five types, or classes, of felonies. A Class E Felony is the lowest category, associated with the shortest jail sentences. However, being convicted of a felony is considered much more serious than being convicted of a misdemeanor or violation. Felonies are associated with longer jail time and limitation of your employment prospects. Felony sentences can be particularly harsh if you are a multiple time offender like those who will be affected by Governor Cuomo's amendment.

If you are charged with a felony, you should absolutely contact an attorney. An attorney can advise you of your options and work with the court for a lesser sentencing. If you are in need of an attorney, please contact my office at 718-317-5007.

- Kevin P. McKernan

How to Create an Effective Non-Compete Agreement

A Non-Compete Agreement is a legal document used by business owners to restrict their employees from doing things that will damage the business, such as trying to convert customers or using inside knowledge or trade secrets, after they leave the company.

In New York, Non-Compete Agreements have been historically hard to enforce. The New York Court of Appeals has set strict guidelines that Non-Compete Agreements must follow in order to be considered valid in a court of law. The most important factor in whether or not a Non-Compete is enforceable is whether it is considered reasonable. The agreement must neither place undue hardship on the employee nor place any restrictions on the employee that are greater than needed to protect the company's legitimate interest. Despite the difficulty in enforcing Non-Compete Agreements, it is wise for small business owners to look into drawing up a valid agreement in order to protect their business. Below are some tips that can make your Non-Compete agreements more likely to be enforced in court.

Why Should You Get a Cohabitation Agreement?

A recent study done by the American Academy of Matrimonial Attorneys shows that matrimonial lawyers are seeing increasing numbers of clients whom are choosing to cohabitate and combine assets without first getting married.

As a long-time family law attorney, I know that just as it can be beneficial for couples who are planning to marry to sign pre-nupital agreements beforehand, it can also be beneficial for couples who are planning to move in together to sign a cohabitation agreement.

Cohabitation agreements are legal documents that a couple draws up in order to protect both persons' assets and define expectations in case the relationship does end. For couples who are living together without the legal protections and procedures of marriage, cohabitation agreements can minimize the financial repercussions of a bad break-up.

VTL 516: How Your Driving Violations Will Affect You

It is important for all drivers to be aware of the vehicle and traffic laws in their state. If you live in New York or New Jersey, you should be informed about VTL 516, which is commonly known as the "Driver License Compact".

VTL 516 states that because "the safety of streets and highway is materially affected by a driver's degree of compliance with state driving ordinances and that violation of those laws by a driver is evidence that the driver regularly engages in unsafe behavior while operating a motor vehicle", states in agreement with the VTL 516 Compact will report driving convictions that occur in other states to the driving authority of the person's home state. For example, if a New York driver is convicted of a DUI in New Jersey, it will affect his license at home in New York just as if it had occurred in New York.

Other convictions that are mandatory to report in VTL 516 States include manslaughter or negligent homicide, DWI, any felony in the commission of which a motor vehicle is used, and failure to stop and render aid in the event of a motor vehicle accident which results in the death of personal injury of another.

The Same Sex Marriage Dilemma

The controversy about the legalization of same sex marriage has been front and center in American politics for quite a few years now. I actually have legal experience in this area, having been hired as head attorney to defend a particularly divisive case involving LBGQT rights in the early 90s. Since then I have been keeping myself informed about this new arena in law and recently I stumbled upon some information that I would like to share with you.

Shoplifting in NYC: Consequences and Outcomes

Shoplifting is often mistakenly thought of as an embarrassing offense committed by unthinking teenagers in department stores. In reality, however, shoplifting is one of the most common criminal offenses in New York City.

Click below for some of the potential consequences and outcomes of shoplifting cases.

Case of the Week: Cell Site Data

This week the Fifth Circuit of the United States District Court for the Southern District of Texas handed down an important ruling on the Fourth Amendment. The case in question was a dispute between federal law enforcement and a cell phone service provider. Law enforcement had requested the phone records and service information of a particular cell phone from the phone provider pursuant to the Stored Communications Act but the provider refused to provide the records. The federal magistrate who reviewed the case ruled that the phone provider must give law enforcement the subscriber data but did not compel them to to produce cell site data, ruling that "compelled warrant less disclosure of cell site data violates the Fourth Amendment" (IN RE: APPLICATION OF THE UNITED STATES OF AMERICA FOR HISTORICAL CELL SITE DATA. United States District Court for the Southern District of Texas. 30 July 2013.)

What You Should Know About Drugs and DUIs

When people are accused of a "DUI", most people's minds automatically go to "drinking while driving". However, just because alcohol related DUI's are more commonly seen in the media, doesn't mean drug related DUI's aren't just as common and dangerous. In fact, a study by the Substance Abuse and Mental Health Services Administration found that over ten million Americans drove while under the influence of drugs in 2010.

If an officer believes that you are impaired enough to be a danger on the roads, you can and will get charged with a DUI no matter what the substance you have consumed is. But although the charge is the same, there are some differences in drug and alcohol based DUI cases.

Appealing Tickets: Why You Should Hire an Attorney

Speeding tickets are a common occurrence among drivers, but they can also cause major trouble. In New York, each speeding ticket puts points on your driving record. If you rack up 11 points in an 18 month period, your license will be in danger of suspension for 31 days. Unfortunately, points can accumulate quickly for even the most conscientious drivers.

Living Wills vs. Health Care Proxy

In today's day and age, with people living much longer and dealing with the resulting illnesses that result, I cannot stress the importance of drawing up a Living Will or Health Care Proxy enough.

A Living Will is a legal document that lets your loved ones and medical professionals know how you wish to be treated in certain health care situations where you are not able to express your wishes. For example, the Living Wills that I draw up for clients have the language "These instructions apply if I am a) in a terminal condition; b) permanently unconscious; or c) if I am minimally conscious but have irreversible brain damage and will never regain the ability to make decisions and express my wishes."

Living Wills will often cover the topics of life prolonging medical treatments such as life support and resuscitation.

A Health Care Proxy, on the other hand, is a legal document that designates a person who is to make health care decisions for you in the event you are not able to express your wishes. A Health Care Proxy can cover anything from overall management of care to life support termination.

The Facts on Reverse Mortgages

If you or your spouse recently turned 62 or older and own your home, you may be reciving offers from lenders about obtaining a Reverse Mortgage. A Reverse Mortgage is aptly named - it is the exact opposite of a traditional mortgage.

In a traditional mortgage, a lender offers you a loan in order for you to obtain your house and you, in turn, agree to pay that loan down in manageable monthly increments. Since the lender is putting himself as risk by allowing you to borrow such a large sum of money, interest is added on to every month's payment. When you pay your mortgage for the month, you are paying down on your mortgage loan and essentially becoming a step closer to owning your home.

In a reverse mortgage, you already own your home but are older, retired, and would like extra funds each month. When you enter a reverse mortgage, your lender will send you monthly checks. These funds are being taken out of the equity of the house, so the amount of you owe will grow over time. Interest will also be charged to the total balance of your loan. Additionally, most reverse mortgages have variable rates instead of fixed, which means the rate of interest you will be charged will change depending on market conditions. As with any mortgage, a reverse mortgage is a major financial agreement that should not be entered into without careful examination of all contracts and financial documents by an attorney.

Texting Someone You Know is Driving in New Jersey Can Now be a Crime!

Every day, millions of Americans fire off text messages to friends, family and business associates.

Now, as a result of a recent decision by the New Jersey Superior Court, Appellate Division, some of those texts could be used as evidence to charge them with Reckless Driving as an Accomplice. In Kubert v. Best, the Court ruled that a sender of a text message can be held liable if they knew that the recipient was driving during the time they sent the text and he or she gets into an accident.

Tips on How to Increase Your Credit Score

Having a good credit score is very important. Those with good credit scores are able to obtain more credit at lower rates so that they can easily finance a home, car, and other major purchases. Those with low scores often have trouble obtaining credit and may find it harder to qualify for loans, rent apartments, and even get hired for certain jobs. So what steps can you take to increase your credit score?

The first thing you should do is request a free copy of your credit report. If you don't accurately know your credit score, you won't know what you're working with and what you can do to correct it. Fortunately, due to the Fair Credit Reporting Act, all three credit reporting companies (Equifax, Experian and TransUnion) are required to provide you with a free copy of your credit report once a year. You can obtain your free copy by clicking here. You will have to pay extra to obtain your actual credit score, however, the report will include valuable information such as your existing lines of credit and their standing, a list of people who have requested your credit report (such as employers), records such as bankruptcies, foreclosures, judgments and other overdue debt to collection agencies.

Strategic Default, Short Sales and Loan Modification: What Choice is Best for Your Financial Future?

1.11 million Americans reported being "underwater" on their homes in 2011. Underwater is a commonly used financial term that is used when a homeowner owes more money on a property than it is worth. During the financial crisis, property values plummeted to rock bottom and millions of Americans suddenly experienced the unsettling feeling of owing hundreds of thousands of dollars more on their property than it was actually worth. If you are experiencing you should consider all of your options.

Homeowners who wish to get rid of an underwater or distressed property have several options.

Tips for Starting a Business

Starting a business can be an overwhelming process. Here's a guide to the different kinds of businesses you can establish to make the process easier for you.

There are several types of businesses and it is important to choose which one to use carefully. The type of business you choose to establish will affect how you pay taxes and the legal status of the business. The most common types of business are the corporation, S corporation, partnership, sole proprietorship, and LLC.

After the jump, I explain the types of businesses you can form and their pros and cons.

New Jersey Law Part 2: New Regulations!

On Thursday, June 27, 2013, New Jersey Governor Chris Christie signed a piece of legislation that will increase fines for texting or calling on your cell phone while driving. The legislation, called S-69, states that any use of a cell phone without a hands-free device will earn drivers a minimum fine of $200-400 fine for the first offense. This represents a significant increase from the prior fine amount, which was only $100. Those who incur a second offense will pay a fine of $400-600 and a fine of $600-800 for a third offense.

Not only will chatterbox motorists be faced with large fines as a result of S-69, but offending drivers will experience some serious consequences. For example, the legislation allows a judge to suspend the license of a driver for ninety (90) days. These drivers will also incur a penalty of three motor vehicle points on their record.

Click the link below to learn more about the consequences of the new regulations in New Jersey.

Increased Penalties for Gun Control and Trafficking Laws in New Jersey

On Thursday, August 8, 2013, New Jersey Governor Chris Christie signed ten gun control and trafficking bills into law.

A-3687 bans those on the federal Terrorist Watch list from obtaining firearms permits.
A-3717 requires the state to send relevant records, including mental health records, to the National Instant Criminal Background Check System in order to prevent the issuance of a firearm permit to anyone with a dangerous background.
A-3788 upturns previous regulation that firearms ownership records are private documents and requires them to be available pursuant to the New Jersey's Open Public Records Act.
A-3796 gives illegal firearm owners 180 days to dispose of all guns they may have.

                                              Picture by davescornertavern.blogspot.com

S-1279 increases the penalty for the unlawful transfer of a firearm to an underage person by making it a second degree crime.
S-2430 orders a "Study Commission on Violence."
S-2468 allows law enforcement to impound the cars of anyone found with an illegal firearm
S-2719 increased the penalty for gun trafficking by making it a second degree crime.
S-2720 declares that all information about handgun permits and the total number of "firearms purchaser identification cards" are public record.
S-2804 increases the penalty for the unlawful possession of firearms by making it a first degree crime and increasing the mandatory minimum sentences.

As you can clearly see from these new regulations, being convicted of a gun related crime in New Jersey can have a severe impact on your life. If you are convicted of a gun related crime, don't wait to call an attorney! An experienced attorney can explain your options and guide you through what can be an extremely stressful and arduous process. As always, feel free to call my office at 718-317-5007 if you are in need of an attorney.

Five Reasons Why You Should Stop Talking and Driving - New DMV Regulations

Have you read about the new DMV legislation? Well here are five reasons why you should.

Governor Cuomo recently announced changes to the number of points that will be imposed on all licenses for violating regulations VTL 1225-c (Use of a Mobile Telephone While Driving) and 122-5d (Use of Portable Electronic Devices). Talking on your phone while driving, or even simply reaching down for a second to turn on the new Kanye album on your iPod, has become common practice for many drivers who do not realize they can face serious consequences for even a moment's distraction. Starting June 1, 2013, Use of a Mobile Telephone and Portable Electronic Device while operating a vehicle will incur a five point penalty instead of a three.

What does a change of two points matter? Click below to find out.

Case of the Week: People v Oliveras

The case of People v. Oliveras is a ruling that may have an effect on the definition of what constitutes "ineffective assistance of counsel". According to the present law, ineffective assistance of counsel occurs when a convicted client proves that their attorney was negligent in a way that badly impacted the case, and therefore the client's constitutional right to counsel has been violated (as per the Sixth Amendment). In People v Oliveras, the defendant's mental health was in question, and his lawyer attempted to argue that his client's confessions to the police were not completely voluntary, in part because of his questionable mental health. However, the attorney made a fundamental misstep that ultimately impacted the case: he never subpoenaed his client's psychiatric records.

Love and Warfare: Who Keeps the Engagement Ring in the Event of a Breakup?

They say love is eternal, but sometimes it just doesn't last. Each year, thousands of engaged couples across the United States decide to end their engagement. After the confusion and chaos of the breakup subsides, the question often becomes "What happens to the engagement ring?". An engagement ring is often representative of many weeks of the future groom's income and therefore a valuable and sought after item by both parties. Lucky, the courts in both New York and New Jersey have made it clear what the law dictates in this difficult situation.

Photo credit to GossipCop.com

Important Things You Should Know Before Buying a Business

Buying a pre-existing business is a hectic yet extremely exciting time for potential buyers. After all, there are so many things potential owners must do: narrow down locations, scope out the storefront, and examine the market, among others. And that's before you get to the paperwork! Luckily, there are some tips out there that can make the process much less stressful.

One important thing to remember is that buying a business is a big decision. It helps to do all your research before you actually begin talking to brokers and owners/sellers. Having all of your information prepared and organized beforehand not only ensures that you are informed, but that potential sellers will take you more seriously. One of most important documents you should prepare is an "Acquisition Criteria" sheet outlining your expectations for your new business.

Is Bankruptcy Right For You and Your Family?

In difficult financial times, it is understandable why a family would need to explore all of their financial options. If you are having trouble paying your bills or meeting your financial obligations, you may want to consider bankruptcy as an option.

It can be a difficult and trying time when your family is considering bankruptcy.

Before you decide whether or not to file, there are several things you should consider. If you do some preliminary research, the prevailing wisdom seems to be that a lawyer is necessary for all cases of Chapter 13 Bankruptcy and advised for any difficult cases of Chapter 7 Bankruptcy.

However, in 2005, bankruptcies laws changed, making it much more difficult to file for bankruptcy. You can see this in the graph below, taken from the News section of the United States Court website:

My Experience at the National College of DUI Defense - Summer Session 2013

Hello everybody!

I've been away from the office all week since I was lucky enough to be able to travel to Cambridge, Massachusetts, to attend the 2013 Summer Session of the National College of DUI Defense.

There I got to participate in several events, which I'm going to list below:


• The Cross Examination: The Lawyers Opportunity to Testify
• Cross Demo of the Arresting Officer
• Preparing for Hearings & Trials: Approaches, Organization & Tools
• Lawyer Ethics and the Code of the West: Lessons Learned Over the Last 40 Years
• Presenting Your Expert
• A Closing for Every Case
• Changing the Jury’s Presumption
• Reflections on Forty Years of Forensic Alcohol and Drug Research
• Creative Opening Statements: Getting to Not Guilty Right Out of the Gate

Events like the Summer Session at the NCDD are a great opportunity since they allow Criminal Defense lawyers to really hone their skills, refresh their knowledge, and get updated on any new laws or regulations that could affect their cases. When selecting a lawyer to represent you, I believe its important to choose one who understands that law is not a static profession but one that continually evolves and improves. I place a lot of importance on keeping up to speed on my profession and I was happy I had the time to do just that up in Massachusetts!

If you are interested in learning more about DUI/DWI, click here to learn about your rights at DUI Checkpoint or here to learn about recent DMV Regulations that can affect you.

- Kevin McKernan

The Importance of a Will: Protect your Life Savings!

Throughout my years as a lawyer, I've noticed one commonality. Here’s the scenario: A beloved parent dies after a long illness. After a few days, the smoke clears and the children are suddenly left to deal with Mom or Dad’s Estate. Unfortunately, Mom and Dad never thought about making a will because they always thought that their possessions would just pass to their children automatically, but everyone is now realizing that that isn't necessarily true.

Cue the calls to my office.

I don’t mean to make light of such a difficult situation, but simply point out the importance of having a Will drawn up. The fact is, without a Will, when you pass away you are legally known as “intestate”. This means the fate of your estate depends entirely on the Court’s decision. What will occur is that the Court will hold a hearing to decide who the rightful heirs to your estate are and then decide accordingly. Unfortunately, this sometimes results in your estate not being split the way you intended.

How can you avoid this?

NY Divorces: Protect Yourself! Learn about adultery, abandonment, and other grounds for contested and uncontested divorce

Divorce is hard on everyone in a family. If you are considering divorce, you probably have a million things running through your mind: How will the kids feel? What will happen to the house? How do I even begin this process?

Divorces fall into two major categories: contested and uncontested. An uncontested divorce usually occurs when you and your spouse agree on all the issues that come along with divorce, including the distribution of your finances, child support and visitation, and spousal maintenance. If you and your significant other cannot come to an agreement on these issues before your court date, you will have to file for a contested divorce. A contested divorce can raise the cost of your divorce exponentially, however, many people believe it is worth it when they feel strongly about certain issues such as their children’s care or remaining in their marital residence.

If you wish to petition for a contested divorce, you must choose one of the six grounds for divorce in New York State.

Click below to learn the grounds for divorce in New York.

Social Media Reminder: How Facebook, Twitter and Instagram Can Hurt Your Legal Case

Today I would like to share a letter I send to all my clients regarding SOCIAL MEDIA. While we all enjoy some time on Facebook, Twitter and Instagram, we must also be cautious in our use of it when we have on-going legal matters!

Below is my letter.


Dear [Client]:

I am writing to give you some advice regarding your use of social media as you progress through the legal matter you have placed in our hands. As I am sure you are aware, social networking in the form of Facebook, Twitter, MySpace, blogs and the like has become an almost ever-present part of our lives. Often we post a thought, feeling, or photo without a second thought. In the context of a legal issue though, these actions can come back to cause you headache and hurt your case. I must advise you to use extreme caution when making any sort of post, update, or upload to any social networking outlet.

It is becoming a common practice for attorneys to request copies of any and all posts any interested party, including you, have made online. While we can object to these requests based on their relevancy, the courts have nonetheless been agreeing with defendant’s requests and allowing them access. In fact, District Attorneys Offices and other government agencies have successfully subpoenaed these accounts.

• Do not mention anything about your case online.
• If you absolutely must post something about your case online, do not enter anything detrimental to your case.
• You can’t delete it! Once you post something to a social networking site, it is there forever. If you go into your accont and delete anything, it still exists as the social networking site’s administrator keeps archives of all the material ever on their site. The information or photos still exist and parties can ask for, and usually get it.
• Review your “privacy settings” to make sure they are set at the tighest restraint possible. You can change them back once your case is over but while your matter is pending, it is in your best interest that your “friends” not be aware of your every move.

Please keep in mind that these warnings are not to make your life more difficult, but rather they are for your own protection, as well as to help make your case as solid as possible. Being cautious and making smart choices will help your case in the long run.

Please feel free to call our office at (718) 317-5007 if you have any questions at all or need additional information. Also, I ask that you contact us immediately if you feel you have any sort of social networking post that might be detrimental to your case so we may assess how to deal with it, and what action to take.

- Kevin McKernan

What Happens to Lassie After the Divorce? Pets and Custody Agreements

Today more than ever Americans are making sure that they make arrangements for their pets during a divorce. In fact, the American Academy of Matrimonial Lawyers reports they have experienced a 23% increase in the amount of “pet custody” cases. So what happens when both you and your partner want to keep the family dog after the split?

I've handled matrimonial cases my entire career, and I've personally dealt with clients who have disagreed over who will keep the family pet. Here are some tips to keep in mind if you or a family member is going through this difficult situation:

Your Rights While Driving Through a DUI Checkpoint

DUI Checkpoints have becoming increasingly common all over the country. DUI Checkpoints are stop points set up by the police, usually on a busy highway, in order to stop drivers passing through and check for drunk drivers and traffic violations.

If you are driving and encounter a DUI Checkpoint, the first step you should take is to have a good look at your surroundings. DUI Checkpoints should have clear signs that warn drivers that a checkpoint will be ahead. The checkpoint should be, but isn't always, strategically placed so that drivers have an alternative route to choose if they do not wish to participate in the checkpoint. Remember, you are under no obligation to go through the checkpoint. As long as you do not commit any traffic violations in avoiding the checkpoint or otherwise exhibit signs of being intoxicated, the police should not stop you.

The Dangers of Prescription Drug Abuse: How Xanax, Oxycodone, and Percocet Can Change Your Life Forever

Prescription drug abuse has become an epidemic all across the country. Every week you can flip on the television or open a newspaper and find new stories of arrests and convictions related to prescription drug crime. According to NY Senator Kemp Hannon, over the last year over 22 million prescriptions for painkillers were written in New York, yet only about 19.5 million people actually live in the state. In fact, prescription drug abuse has reached such high levels that Mayor Bloomberg of New York launched a Prescription Drug Abuse Task Force in an attempt to stop the use of these dangerous drugs in NYC. New York and New Jersey law enforcement agencies take prescription drug abuse crimes extremely seriously and are vested in prosecuting these cases to the fullest extent the law allows.

New Jersey Law Part 1: Expungement

       One of the reasons why it is vital to consult a seasoned litigator when you are facing criminal charges is that experienced criminal attorneys such as myself know all the ins-and-outs of the court system and how you utilize that system to your benefit. One of the lesser known options that the New Jersey Court system offers is called expungement.

        When a person is arrested in New Jersey, regardless of whether or not they are convicted of the crime, a criminal record is created in order to document that arrest. Even criminal matters that may seem trivial, like matters that result in a summons or fine, may be recorded as arrests on your criminal record. These “arrests” can show up when a potential landlord, employer, or creditor checks your record and could have a detrimental effect on your livelihood!

New DMV Regulations That Can Affect Your Life!

          I recently had the opportunity to attend a NYS seminar concerning New York’s new DUI and DMV (Department of Motor Vehicles) legislation. Regulations concerning Alcohol and Drugged Driving Related Offenses change all the time and these cases tend to be some of the most emotionally-charged and stressful in the entire legal system. Therefore it is vital that you contact an experienced attorney as soon as possible if you have been charged with one of these offenses.      

         At the conference, I was apprised that as of September 25, 2012, the DMV has begun enforcing new and even more stringent regulations concerning impaired driving.

            The NYS DMV website lists these new regulations as follows: