Police Crack Down on Cell Phone Use While Driving in Staten Island!

The New York Police Department is on a three week long traffic crackdown that has netted Staten Islanders 398 summons and two suspended licenses, according to the Staten Island Advance. The traffic crackdown began in response to the flurry of deadly car accidents that Staten Island has endured in recent weeks. According to figures given by the NYPD, the most common violation has been cell phone use while operating a motor vehicle, which made up over a third of the 398 summons given! 

Cell phone use while driving is not only extremely dangerous but highly illegal. If you are pulled over for cell phone use while driving, you will not only incur a hefty fine but gain three points on your license for a first offense. Additional offenses will carry higher fines and additional points. These points can easily add up to a suspended or even revoked license. If you have been pulled over for using a cell phone while driving or a different traffic expense, you should contact an experience traffic attorney. Feel free to contact my office at (718) 317-5007.

Don't Let Divorce Damage Your Credit!

Hashing out the financial aspect of a divorce can be difficult and stressful. Marriage is a financial partnership; During a divorce, these financial bonds must be broken correctly in order to avoid detrimental effects to one or both parties' credit. Below are some tips to help you avoid detrimental effects to your credit while dealing with divorce.

1. Check your credit and ask your partner to check his or hers at the very beginning of the process.
It's a smart idea to be aware of your credit score and what you and your partner owe before you begin divorcing. You can request a free credit report once a year from the official credit report site run by Experian, Equifax, and Transunion.

2. If you have no individual credit, now is the time to establish it.
Once the divorce is final, you will be dependent on your credit report alone. You can build up your individual credit by opening a card in solely your name. Opening a credit card can be an important step on the path to financial independence.

3. Discuss how to deal with joint loans, such as the mortgage and/or car loans.
You and your partner will need to decide which party will take on responsible for any joint loans acquired during the marriage. Joint bank accounts should be switched over to one name early in the process to avoid any one party withdrawing funds without the consent of both spouses. Likewise, any credit cards in both spouses' names should be switched over to one party immediately. Don't let your credit be put in jeopardy by an vindictive spouse! Additionally, be sure to check of all your financial records to avoid overlooking smaller debts such as a store card or gaming accounts.

4. Place a fraud alert on your credit.
You can request for one of the three major credit agencies to place a "fraud alert" on your credit for at least 90 days. Placing a fraud alert on your credit means that your credit bureau will contact you any time an account is opened in your name, obtain another credit card or increase your credit limit. With a fraud alert, you will immediately know if someone other than yourself is attempting to use your credit.

If you are considering divorce, getting in touch with a divorce attorney can be both a smart and comforting move. An attorney can review these steps with you and assist you with financial entanglements you may have as a result of divorce. If you or a loved one is considering divorce, feel free to contact our office at (718) 313-7563.

President Proposes Overtime Plan Changes

President Barack Obama recently had a proposal concerning overtime pay that could result in increased costs for small business owners. The President wants the Labor Department to expand the regulations concerning overtime pay so that many more types of workers would be covered, raising the pay of several million low wage workers. Critics of the bill worry that companies, especially small businesses that may be less able to afford to dole out large overtime payments, will be forced to cut hours and freeze hiring. For small businesses, payroll is often the biggest operating expense, and increases in this area could actually slow down the growth of these businesses.

This proposal could have a major effect on small businesses and the economy as a whole. If you are a business owner with questions or concerns about new labor regulations, feel free to contact the office at (718) 317 - 5007.

Warning: Traffic Blitz in NYC!

There is a traffic blitz occurring in New York City. Any traffic ticket can lead to serious consequences. Besides the fact that there are fines and surcharges that can range in the hundreds of dollars, points may be assessed. After a number of points, a mandatory driver assessment fee will be imposed.

In addition, insurance premiums can increase as well as potential difficulties in obtaining insurance. Furthermore, many companies use driving abstracts when assessing rates.

Therefore, it is important to have representation when a ticket is received. If you receive a traffic ticket in New York, you can contact the office at (718) 317-5007.

Tax Deductions for Business Expenses

Everybody hopes to minimize their tax liabilities and maximize their tax benefits. If you are planning on deducting business expenses in order to increase your tax return, there are a few important pieces of information to keep in mind.

If you wish to deduct a business expense, the expense must have two important qualities: it must be ordinary and it also must be necessary. An "ordinary" business expense is simply one that is commonly occurred in your industry. A "necessary" business expense is one that will help to grow or maintain your business. Below you can find further description of the three main categories of deductible business expenses.

Transportation Costs:
Transportation costs are the most common type of business write-offs. If you required to travel for business, the costs you incur while doing so can deducted as a business expenses. Examples of this would be plane, train or bus tickets.

Travel Expenses
Other common deductions are for travel expenses. The guidelines for deducting travel expenses are as follows: You can deduct up to 50% of your meal costs and 100% of your other lodging and travel expenses during a business trip.

Deductible travel expenses can include things like:
- Meals
- Cost of renting a car and gas once at your destination, alternatively the cost of public transportation to and from your work
- Work necessities such as computer rentals, WIFI, or secretarial services
- Cost of fax, telephone or internet usage

Entertainment Expenses:
Meals and most other entertainment expenses can be deducted at 50%, however, these expenses can not be "lavish or extravagant" and as always must be directly related to business. You can deduct business expenses while entertaining at home. Events such as sales seminars from home are legitimate business expenses even if they take place while at home.

Warning! E-ZPass E-mail Scam in New York

Our firm recently received correspondence from New York Senator Andrew Lanza. Unfortunately, New Yorkers were recently the target of a scam involving E-ZPass billing. The scammers send emails to unsuspecting people in which they claimed to work for E-ZPass and requested money for unpaid toll bills. Senator Lanza warns anyone who receives this e-mail to avoid opening or responding to it. If you have any questions or concerns about the validity of an e-mail, you should contact the sender directly by phone. You can reach E-ZPass, for example, at (800) 333-8655. I encourage you all to remain aware when you using the Internet and never give out personal information through e-mail.


- The Law Firm of Kevin P. McKernan

The Legalities of A Home Based Business

Home based businesses can be an exciting new endeavor that bring in significant profits. Of course, before you get started, you should know that home based businesses are still required to conform to some strict rules and regulations. Before you decide to open your own home based business, here are a few points you should carefully review.

1. There are restrictions on the sale of certain goods and these vary from state-to-state.
There are a variety of items that you cannot produce or sell in your home. Potentially dangerous products such as medications and sanitary products are illegal to manufacture and/or sell from home.

2. You need to register and obtain certain licenses to be legally able to do business.
Before you open up shop, make sure you register your business's name in the state that you're conducting business in. Additionally, you will also need to register for a sales tax number, since every business is required to collect sales tax.

3. You may need a Home Occupation Permit and Check Your Zoning Laws!
In some states, you will need to have a Home Occupation Permit in order to legally do business. You will need to check whether or not your home is zoned for the type of commercial activity you plan to do in your home.

4. There are additional health and safety measures you may have to take.
Certain industries require extra health and safety precautions to ensure that both the working environment and final product are safe for consumption. You should check with your State Environmental Protection Agency to ensure that your home based business is up to date with all safety standards.

5. You may want to look into sign permits.
If you have a business such as a home based daycare, you may want to place a sign in front of your home in order to advertise. If this is the case, you may want to look into whether or not you need a sign permit, since certain towns will restrict the size, type and/or location of signs.

Its important to be informed before you start any kind of business. If you have any questions or concerns about the legalities of starting your own business, its best to consult an attorney. This will ensure that your business is up to code in all areas and help you understand your legal responsibilities so that your business will get off to a great and productive start. Good luck with your new business!

Can Your Traffic Tickets Actually Affect Your Credit? Yes!

As we discussed yesterday, traffic tickets can be costly and time consuming. But can your traffic tickets actually have an impact on your credit score? Surprisingly, according to the CEO of one credit restoration corporation, the answer to that question is yes.

When it comes to credit scores, most people believe a lowered score is most commonly caused by late payments and/or a default on loans. What people may not know is that the government can and will turn your unpaid traffic tickets over to a collection agency. Once your unpaid bill is in the hands of collections, these agencies can now report your delinquent account to the credit bureaus in an effort to get you to pay up, thus negatively impacting your credit score and possibly your financial future.

Don't let unpaid traffic tickets affect your financial wellbeing! The first and most important step is to respond to your tickets within the allotted timeframe. Whether you decide to fight the ticket or simply plead guilty and take the fine, it is very important that you respond to the ticket so you can avoid several negative consequences, such as paying late fees and/or a forfeiture of your chance for a plea bargain. The second step you can take to ensure that the process goes as smoothly as possible is to hire a traffic attorney. An attorney will ensure that the process of dealing with your ticket is done correctly, thereby eliminating the pesky possibly of your unpaid ticket getting sent to collections!

If you or a loved one have tickets and would like to speak with an attorney, feel free to contact this office at (718) 317-5007.

Traffic Tickets in New York

We all know that traffic tickets can be pain, especially for busy New Yorkers. Getting a traffic ticket can be both costly and time consuming. If you wish to fight your ticket, the process can be arudous and paper work intensive.

The first and most important thing you can when you get a ticket in New York is to know your options. The first option is you can plead "Guilty" or "No Contest" to the ticket, which means you will have to pay the fine and/or the Driver's Responsibility Program. The consequences of this option include receiving a certain numbers of "points" on your license (which could led to the suspension/revocation of your license) and a possible increase in your insurance premiums. The second option is to fight the ticket and plead not guilty. If you choose this option, you will have to contest the ticket during a hearing. The potential consequences of pleading "Not Guilty" is that if you lose, you might not be offered a plea bargain for a lesser penalty.

An important thing to remember is you should absolutely respond to your ticket within the allotted time. If you do not turn your response in by the scheduled date, you will forfeit your chance to plead Not Guilty.

If you have multiple tickets, or tickets that could rack you up enough points to suspend or revoke your license, it's wise to hire an experienced traffic lawyer. There are several advantages to hiring a traffic lawyer. The primary advantage is that these attorneys handle these types of cases on a daily basis, so they have most likely dealt with a situation similar to yours, no matter how unusual or difficult your particular case seems. They should be familiar with the types of defenses work best with individual judges and any paperwork or "red tape" that you will need to get through. Another major benefit associated with hiring an attorney is that you may not have to appear in Court.

If you or a loved one is in need of a traffic attorney, feel free to contact the office at 718-317-5007.

What You Need to Know About Obamacare and Your Tax Returns

The Affordable Care Act (ACA), commonly known as "Obamacare", requires all U.S. citizens and legal residents to enroll in health insurance. The effects of the Obamacare program on American society is plain to see, but what about the potential effects on your taxes? Below are three of the most common ways the Affordable Care Act can affect your tax returns.

1. If you are penalized for failure to enroll in a health insurance plan, the penalty will be subtracted from your tax return. Generally speaking, the penalty is calculated by taking the higher of two calculations - either the penalty is $95 per adult in the household and $47.50 per child in the household or it is 1% of the family's overall household income. The IRS will use whichever formula produces a higher number to calculate your penalty.

2. Families are able to qualify for financial aid in order to purchase their health insurance, though their household incomes first must meet federal poverty level. If your family qualifies for financial aid, you will receive the funds through a tax credit. This refundable tax credit is called a "premium assistance credit" and is variable based on family income.

3. You can receive an advance subsidy in order to reduce your health insurance premiums. However, the subsidy is based on your estimated income, so be careful when you calculate your estimate. If your estimated income results in a larger subsidy than your actual credit, the difference will be collected through your tax return.

Charitable Deductions

Charitable giving can be a great way to help the less fortunate as well as save on your taxes. The first rule of charitable tax deductions is that your donation must go to a legitimate and government qualified organization. Charitable organizations must file an application with the IRS in order to be qualified. The IRS website
has an useful online search tool for finding qualified charities.

If you have already donated your time, money, or services to a charitable organization and are interested in filing for a charitable deduction, the first step is to turn your attention to the tax form 1040. You should itemize your deductions on Schedule A of that form.

If your charitable donation is a purchase, such as a ticket to an event or memorabilia item, you should deduct the market value of your ticket from the total amount of your donation. For example, if you purchase a ticket to a charitable dinner for $100, of which the market value of the dinner is only $60, you are permitted to claim only $40 of that donation. "Fair market value" can be defined as the price at which the item would exchanged at by a willing and fully aware buyer and seller. You cannot claim a deduction on any item you derive financial benefit from.

In addition, if you wish to claim a deduction in excess of $250, you must have bank statements, a written acknowledgment of your donation from a qualified organization, or other financial documentation. You will not be allowed to claim a deduction without the proper documentation.

Below are some other circumstances in which you can claim charitable deductions.

- You may be able to deduct your expenses if you have a foreign student living with you through a qualified organization.
- You may be able to deduct your expenses for uniforms if the charity or volunteer organization you donate your time to requires them.
- You may be able to deduct the cost of your gas and oil if you directly use your car while in commission for a charitable organization.

Enjoy your charitable giving!

Tips for Small Business Owners: the FMLA

The FMLA is also known as the Family and Medical Leave Act. The act mandates that certain eligible employees are entitled to take job-protected (though unpaid) extended leave for family and medical reasons. It is important for small business owners to be aware of the nuances of the FMLA so that your business does not get held in violation.

Those considered covered employers under the FMLA are the following:

-private employers with 40 or more employees, including a joint employer or successor in interest to a covered employer
-public agenciest
-public or private schools

Those considered eligible employees under the FMLA must fulfill the following requirements:

-those that work for covered employers
-has worked for a covered employer for at least a year
-has worked at least 1,250 hours of service for the employer during those 12 months before leave
-works at a location where the employer has at least 50 employees within 75 miles

Eligible employees are entitled to take up to 12 weeks of job protected leave each year if they or an immediate family member falls ill. Employees can also use the FMLA to take leave in cases of pregnancy or adoption. The leave can also be taken in whichever manner best accommodates the employee, whether that be a continuous 12 week absence, a reduced work schedule, or simply a few hours a week off for medical appointmemts.

As a business owner, it is important to be aware whether or not you are a covered employer and to fully follow FMLA guidelines if you are. If your business is not in compliance with the FMLA, the business will be at a significant risk for lawsuits. Covered employers must (1) post a notice explaining employees' rights and responsibilities under the FMLA, (2) include information about the FMLA in their employee handbook and inform employees of it upon getting hired, (3) if an employee requests leave, provide him or her with a notice concerning his or her eligibility for FMLA leave, and (4) notify employees whether leave is designated as FMLA leave and the amount of leave that will be deducted from the employee's FMLA entitlement. Additionally, when an employee returns from FMLA leave, he or she must be restored to his or her previous job or an equivilant one. Not adhering to these guidelines could result in serious consequences for your business, including monetary fines.

If you need assistance with a FMLA related legal matter, feel free to call my office at 718-317-5007.

Immigration Visas & Marriage Fraud

"Green card" marriage, also known as marriage fraud, is often the subject of jokes in popular movies and television shows. Unfortunately marriage fraud really does occur and it can have serious legal consequences for both the individuals involved and their families. Marriage fraud can be defined as the violation of law that occurs when a United States citizen weds a non-citizen for the purpose of obtaining permanent resident status in the U.S.

When a couple files an immigration application, they are granted an interview with an immigration officer. The purpose of this interview is to confirm that all of the information on the couple's application. During this interview, the couple will be asked questions about their relationship and its development, such as "When and where did you meet?" and "How long was it before you decided to get married?" Additionally, the officer will ask questions of each member of the couple individually, such as "What hours does your spouse work?" and "What gifts did you purchase for your spouse this holiday season?" It is recommended that the couple discuss and review some of the major events in their lives such as their first meeting, engagement, wedding and various birthdays/anniversaries before the interview. This information doesn't need to be memorized, however, some couples find it helpful to get on the same page before the interview starts in order to prevent unfortunate slip-ups.

If an immigration application is proven to be false, legally known as fraudulent, the filing couple can face serious consequences. The most immediate consequence is that the individual seeking U.S. citizenship cannot be a beneficiary of any other immigration (family or employment) petition. They may also be deported. The American citizen can face up to five (5) years imprisonment and/or fined up to $250,000 on a charge of criminal conspiracy.

Immigration is a long and complex legal process. If you are or a loved one is considering filing for an immigration visa, you may find that hiring a lawyer with previous immigration experience is helpful. Your lawyer will guide you through the necessary paperwork and help you get answers if you get caught up in red tape.

Tax Scams You Should Avoid

We are all familiar with the old adage, "There are only two things in life that are guaranteed: death and taxes." While every citizen files taxes each year, some of us are more familiar with the process than others. Accurately and correctly filing taxes is important and mistakes, even innocent ones, can lead to anxiety-inducing audits and monetary fees. Below I have complied some of the more common "Tax Scams" that you should be avoid while filing your taxes.

1. Frivolous arguments: It is a common misconception that you can get gain hundreds of dollars on your tax refund by filing for loopholes and tax liabilities. The IRS has an entire page on their website dedicated to "frivolous tax arguments" that should be avoided completely when filing. You can get the maximum amount of money back on your taxes without making exaggerated claims. Furthermore,  filing frivolous claims can result in a $5,000 penalty from the IRS. 

2. Income Tax Schemes: Abusive tax structures are essentially plans to avoid paying the taxes you legally owe by concealing your true financial situation. This is primarily achieved by trying to disguise your ownership of expensive assets by using shell companies or foreign financial accounts. If you become involved in an income tax scheme and are caught by the IRS, you can face severe penalties. 

NB: It is important to remember that ignorance of the law is never a valid legal defense. If you are ever convicted of a tax-related crime, it will not work to plead ignorance that your actions were illegal as your defense. That is why it is important to work with reputable professions who can ensure that

3. Misusing trusts: Trusts have useful and valid legal benefits, but they can also be abused. Consult with a lawyer and/or tax professional before you commit any assets into a trust. 

Keep Your Valuables Safe: Protecting Yourself From Natural Disaster

This is an reminder of the importance of keeping all of your important financial documents safe in case of a natural disaster or other such emergency.

1. Scan your records so that they're electronic
It is simple to scan all important documents (tax records, bank statements, insurance policies, etc) onto your computer and then save them in the manner on your choice. Some good options would be an external hard drive or send to a specific gmail account.

2. Buy a safe and store important documents in it
If you're simply not the computer savvy type and don't want to scan your financial documents, consider storing them in a safe.

2. Get out that camera and document your valuables
You should take photos of your most valuable items. This will allow you to have physical proof of your items, their condition and their worth when you claim the loss with your insurance. These photos may also be useful if you wish to claim the loss of your items as a deduction on your tax return.

3. Have an emergency plan
In the event of an emergency, the best thing you can do is have a plan (and a back up plan) for you and your family. In situations like these, preparation truly does save lives. Make sure you and your family have a separate plan for a variety of different emergency situations, such as earthquakes, floods, and tornadoes. It can also be helpful to rehearse this plan together as a family so that you can identify problems areas and familiarize each family member with the routine. If you are having a trouble forming a comprehensive plan on your own, this PSA guide can help.

The Importance of Financial Literacy

Financial literacy is an essential part of running a healthy and stable household. Financial literacy is defined as a set of skills and understanding of how money works and how to manage and invest it in a way that ensures financial well-being. According to a 2013 poll taken by the National Foundation for Credit Counseling in 2013, over 40% of adults graded themselves as a C or below in financial literacy. Unfortunately, American women consistently score lower than men in tests of financial literacy. Since financial literacy gives people the power to make educated decisions on the household finances, it can be hugely beneficial for a household's long-term finances if women acquire this knowledge. Women who are financially literate are more likely to prepare themselves for important life events such as retirement and/or the birth of a child. They may also have an easier financial adjustment period in the event of divorce.

There are many resources available to those who wish to increase their financial literacy. Our government runs a useful program called "My Money" to help educate citizens about the five keys to financial literacy: Earn, Spend, Protect, Borrow, and Invest. More information can be found at the My Money.Gov website. Further information about making wise investments can be found at the Financial Industry Regulatory Authority (FINRA) website. Additionally, online programs such as the Mint.com program can help you track your spending and investments and are a great tool for financial beginners. The Internet can be a great source of knowledge about finances, but not all online sites are accurate and/or reliable, so be sure to stick with reputable sources such as the websites of government or major financial institutions. Enjoy your research!

Mortgage Loan Information

My firm handles real estate transactions regularly and clients often have questions concerning different kinds of mortgages. There are a few different types of mortgage loans currently being offered and each has it's unique benefits and drawbacks. Only you can decide what is right for your new home.

One of the most common types of mortgage is typically called a fixed rate mortgage. If you choose this type of mortgage, you will be charged a constant rate of interest for the entirety of the mortgage. Although the idea of a constant mortgage payment can be a comforting one, you should keep in mind these types of mortgage are usually associated with higher interest rates as a penalty for such security.

Another type of mortgage is typically known as a variable or adjustable rate mortgage. With an adjustable rate mortgage, your interest rate and payment will be the same for a specified period of time, perhaps five or six years, before fluctuating depending on the market rates. While this type of mortgage is considered more risky a fixed rate, it is important to keep in mind that there is a ceiling on your payment and that these types of loans often start with lower interest rates. Adjusted or variable rate mortgages can be ideal for people who are just starting out but anticipate steady increases in their salaries. 


It is important to do your research before you decide to take on a loan the size of a mortgage. Before you do so, remember that an attorney can often times be useful in providing unbiased and accurate legal guidance. If you have any questions or concerns, you should consult a legal professional first.

IRS Releases Two New Publications About The Affordable Care Act

The IRS announced the release of more information concerning the Affordable Care Act (ACA) for families. The two new electronic publications, which can be found on the IRS website at www.irs.gov, are helpful for educational use by individuals and tax professionals who have questions or concerns about the new Marketplace.


The first is Publication 5152, which discusses the importance of keeping the IRS updated to changes in circumstances. Changes in family size or income can affect your Premium Tax Credit and should be reported as soon as possible. The Premium Tax Credit is a refundable credit designed to assist families with moderate household incomes in affording the health insurance they need. If the Marketplace is not updated within a reasonable timeframe, families may receive too much or too little in advance payments. The publication also discusses the necessity of filing your federal tax return if you intend to claim your Premium Tax Credit.

The second is Publication 5156, which outlines what you need to know about the Individual Shared Responsibility Provision. This provision requires you and every member of your family to have a minimum amount of health coverage. The publication contains information about whether or not your family can qualify for an exemption or how much your payment will be if you or your family members do not have the minimum coverage.

Our health care system has undergone major changes in the last few years, so it is important for both individuals and families to have current and accurate information about their rights and responsibilities. Educating yourself on these provisions and the intricacies of the Affordable Care Act can help you make the right decisions for your family.

What Employers Should Know about DOMA

The June 26, 2013 Supreme Court decision to end the Defense of Marriage Act (commonly known as DOMA) means many employers have a new set of responsibilities.

Under the FMLA: 
The U.S. Department of Labor has traditionally held that same-sex couples were not entitled to FMLA benefits because the partners in these couples did not fit the legal definition of a "spouse". As of August 2013, same-sex couples who reside in states where same-sex marriage is legal are now entitled to full FMLA benefits.

Under your company Benefit Plan:
Before the end of DOMA, employer-provided health benefits were calculated as income for same-sex couples because the partners of these couples did not fit the the legal definition of a "spouse" for the federal exemption from income tax for health benefits provided to a spouse. Now, same-sex couples will not longer be federally taxed on the value of their employer-provided health coverage, regardless of what state they reside in.

The end of the Defense of Marriage Act signifies a major change in our society and therefore in law. It is important for employers to stay up to date on what their obligations and responsibilities under the new law. It is wise to contact an attorney who is well versed in employment law if you have any questions or concerns.

Increasing Your Credit Score When Applying for a Loan

When you are applying for a mortgage or car loan, you want your credit score to be as high as possible. Below are some simple tips that can increase your credit score when you need it most.

1. You shouldn't spend above 50% of your maximum credit amount.
You can expect a decrease in your credit score if you charge above this percentage, even if you pay all of your bills on time. Ideally, you should use around 10-20% of your available credit at a time.

2. Always pay your mortgage on time.
Being timely with your mortgage payment can have a BIG effect on your credit score. Alternatively, missing even one payment can cause a 40-50 point drop in your score.

3. Don't co-sign other people's loans.
Co-signing a loan involves significant risk. If the borrower defaults on the loan, not only are you responsible for the remaining payments, but your credit score will take a hit if you are unable or unwilling to take responsibility for the remaining balance. Don't let the financial decisions of family members or close friends affect your credit.

4. Don't run your credit too many times.
A pull on your credit can cause your score to drop up to 5 points. While this is not a significant decrease all by itself, credit pulls (and points) can quickly add up. Make sure that your credit is pulled only when absolutely necessary.

What is a Property Condition Report?

A Property Condition Report is a necessary document to have when purchasing a property, whether commercial or residential. Property Condition Reports must be done by qualified property surveyor who will carefully examine the entirety of the property in order to find any potential issues or damage with the property.

The surveyor should include:
- the grounds such as the pavement, railings, irrigation and outside lighting
- the roof and roof subfloor
- structural items such as the foundation and walls
- the drainage facility and ventilation systems
- soundness of fire and other safety alarms
- an inspection of the property's "soft goods", such as furnishings

It is important to note that a Property Condition Report does not cover any damage that may be hidden in concealed areas of the property, such as the foundation, plumbing, and gas pipes. A clean bill of health from a PCR cannot guarantee that the property will not develop problems in the future.

The PCR will also include the expert's recommendation about the property. These recommendations are vital information for potential property owners to gauge the property's true worth and the time and money they may need to invest in it. PCRs can be requested by either the buyer or the original property owner. In fact, many property owners request a PCR before they even begin showing the property and make this information readily available to potential purchasers.

If you have any questions or concerns about buying a property, or Property Condition Reports, feel free to contact my office at (718) 317-5007.

Divorce and Alimony

Divorce is difficult and the process costly. Often a judge will order for one party to pay the other alimony. Alimony is used to limit the negative economic effects divorce can cause by compensating a non-working or low-income spouse.

Of course, there are regulations guiding alimony. The New York Courts' version of alimony is called maintenance or spousal support. In New York, alimony is calculated by a formula. For your own purposes, alimony can be roughly estimated by subtracting 20% of the supported spouse's income from 30% of the paying spouse's income. There are also websites where you can plug in both parties income and it will calculate the alimony amount.

Another important term to know is "Pendente Lite". Pendente Lite is money paid as temporary maintenance while the divorce is in process. A judge will order "Pendente Lite" to be paid when one spouse needs immediate financial assistance. Pendente Lite orders end once the judge has made a final decision about alimony.

Either party can request the judge to review the maintenance agreement at a later date if their financial situations change.

Additionally, you should know that alimony should be reported as income by the receiving spouse.

Information About Federal Tax Returns

Did you know that if you owe money on past-due debts, you federal tax refund can be affected? Well it's true. Many of us look forward to receiving our tax refunds after the stressful tax season, but some may find their refund isn't everything they hoped for. Below is some information that you may find helpful if your tax refund has been affected.

1. Past-due child support can and will negatively affect your refund amount. Other popular causes for seized refunds are past tax debt, recent Chapter 13 bankruptcy, or student loans you have defaulted on.

2. If the Bureau of Fiscal Service (the organization in charge of tax refunds) takes some or all of the funds in your tax refund, you will receive a notice by mail shortly thereafter detailing your original refund amount, the offset amount, and the contact information of the agency that received your payment.

3. If you filed a joint tax return and your refund was affected, you should submit Form 8379, called the Injured Spouse Allocation Form, to request your portion of the refund. You may be entitled to some of the taken money.

The IRS can also hold your federal tax return. Holding the return is a different situation from seizing it altogether. The IRS can hold your tax return for several reasons, such as not filing taxes in previous years or mistakes on your tax return. You should contact the IRS for more information if your refund is held.

The HUD-1 Settlement Statement and How it Affects Your Future Home Purchase

There has been an important change made to the HUD-1 Settlement Statement, a form used during home closings to itemize all ingoing and outgoing funds. The Real Estate Settlement Procedures Act, also known as RESPA, requires that the HUD-1 Settlement Statement be properly filled out in each and every closing transaction involving a federally regulated mortgage loan.


Instead of the HUD-1 Settlement Statement, a new form called the Closing Disclosure Form should be used. The Consumer Financial Protection Bureau designed the new form so that home buyers can clearly identify their amount of their loan and the interest rate that will be due on it, as well as a projection of their monthly payments.



Additionally, buyers must be given the Closing Disclosure Form an additional three (3) days before the closing in order to give them ample time to consider the commitment of the mortgage loan.

It is important for all home buyers to review and carefully consider the paperwork involved at closing. A real estate attorney can help guide you through the process and answer any questions or concerns you may have.

Real Estate Terms You Should Know Before Buying A Home

For those out there that are first-time homebuyers, or simply want to brush up on your real-estate lingo, below is a list of important terms you will want to know when purchasing a home.

Adjustable rate mortgage: This is a mortgage whose rate (interest) is linked to a "market indicator". There are several market indicators that are used, such as LIBOR, which is the rate that international markets are trading at. Entering into an adjustable rate mortgage means that you will not have a fixed monthly payment for the duration of your mortgage term. Instead, your payment will change, depending on market indicators of the time, at some point during your mortgage term. Adjustable rate mortgages often start with a lower rate which then increases after several years, so be sure to calculate this disparity into your budget.

Closing Costs: Closing costs are the money that need to be paid at the end of the closing. For buyers, these costs include: lender's fees, property taxes, real estate commission, and insurance premiums. There are several online calculators you can use to that will help estimate your closing costs.

Escrow: escrow is a money held by a neutral third party, most often an attorney, until the sale of the home is completed. This assures all parties that the funds held in escrow will be released after the transaction is successfully completed.

Affidavit of title: An affidavit of title is a certified document that proves ownership of a property. This document is needed to show that the seller is the true owner of the home, there are no liens or other obligations levied on the property, and that the property is not sold to anyone else.

Assessed value: This is the value of a property certified by the county and determined by an assessor.

Competitive Market Analysis: A listing of homes on the market that are similar to yours, based on location, style, and size, and the price that they were sold for. These are often referred to as "comps" and can help you determine what price you should put your property on the market for.

What You Need to Know (Legally) About Co-Parenting

The goal of Family Court judges is always to advocate for the best interest of the child or children in question. Traditionally, this meant that mothers had primarily physical custody, often with the fathers sharing joint legal custody. This meant that children physically lived at their mother's residence most of the time, both parents had an equal say in the child's upbringing, medical decisions, and schooling. Today, especially in New York, many judges have moved away from this system.

Family Courts are now finding new ways to split parenting. Instead of "all-or-nothing" decisions about custody, Judges may now chose to delegate several different areas of parenting to either the mother or father of the child(ren). For example, a recent case in Kings County resulted in a judge awarding the mother care of the medical and educational decision-making while the father was awarded joint decision authority on all other custodial matters. Judges may favor this system because it encourages cooperation and mutual agreement while co-parenting.

Remember, the Court's goal will always be to rule for what it is the best interest of the child(ren), therefore showing a willingness to amicably co-parent with your ex-spouse can go a long way. Judges who observe one of both parents openly showing hostility or antagonism towards the other may find it is better to delegate decision-making authority to one parent in certain areas instead of taking on the difficult task of co-parenting.

Judge Rules Fiancee Dumped via Text Keeps Her Ring!

Last week a New York Supreme Court judge made a controversial ruling in a matrimonial case in which an upstate man decided to call off his wedding with his fiancée by text message. The judge ruled that the woman would get to keep her 2.97 carat diamond engagement ring, valued at over $50,000, despite New York's established legal precedent that grooms have a right to the ring back if the wedding does not place, regardless of which party got cold feet (you can find more information about that in my Love and Warfare blogpost found here.

In this particular case, the groom texted the bride to call off the wedding. When the bride protested about the method of the breakup, the groom replied by saying "Plus you get a $50,000 parting ring. Enough for a down payment on a house." This statement came back to haunt the groom when the Judge ruled that his statement counted as a formal acknowledgement that the ring was a parting gift intended for the bride to keep.

Stories like this drive home the potential dangers of technology when dealing with legal matters. You should keep in mind that things that you say in text messages, Facebook updates, tweets and an array of other forms of instant communication can and potentially will be used against you in Court. You can read the letter I give to clients about smart social media usage here and find more information on how social media can affect your divorce here.

Get the Right Lease When Leasing Commercial Real Estate

The process of purchasing commercial real estate, especially for the first time, can be overwhelming. The first step is finding the ideal property, one that suits both your business needs and your financial resources. The next step is drawing up the right lease. When purchasing commercial real estate, as with any other major financial transaction, I strongly recommend you retain the assistance of an experienced attorney.

The details of your lease agreement will be very important for your financial future. These details can save or cost your business thousands of dollars annually, so it is vital for you to look over every section of your lease agreement with care. Below, I am listing some items you and your attorney should consider before you sign your new lease. 

- What space are you renting?

The lease should clearly define the parameters of the space you will be leasing, including a site plan. A lease that is not clear in delineating what your property can lead to future costly Landlord/Tenant disputes. A common issue of contention is common areas and their maintenance. Most leases will hold Tenants responsible for at least some of the cost of maintenance of common areas, make sure 

- What is your rental rate and how is it calculated each year?

Your lease should state not only your rental rate, but how much it will increase each year, whether that is determined by a formula or simply a flat rate. 

- Do you have an "Exclusive Use" clause?

In commercial real estate, renters are commonly given an "Exclusive" if their property is located in a shopping mall or other commercial area. An "Exclusive Use" clause gives you the right to be the only business of your particular type in the commercial area owned by your landlord. An "Exclusive" can ensure your new business wont deal with direct competition and save you money in the process, so make sure you consult your attorney if these rights are not mentioned in the initial draft of your lease. 

- Does the lease include a "Personal Guarantee"?

A "Personal Guarantee" is a clause in your lease that holds you, as the renter, personally liable for the rent if the business is not able to pay it. Personal Guarantee clauses have become increasingly common in the past few years, but this does not mean you have to outright accept them. If signing a Personal Guarantee makes you uncomfortable, you can ask your attorney to revise it to cover only a set amount of time, for example the first two years of the lease.

- Does the lease permit subleasing?

A lease that permits the renter to sublease the space can be a big advantage to renters, especially if you signed a Personal Guarantee. Subleasing rights allow the renter to lease out the property and cover rent costs if difficulties arise. 

You and your attorney should consult on each of the above topics before you sign your new lease agreement. Good luck! 

What Business Owners Need to Know About Hiring Employees and Background Checks

One of the most difficult facets of running a business as a small business owner is finding and keeping the ideal employees. One aspect of this is the background check. Background checks are often necessary to ensure that potential employees are honest, stable and/or have the necessary prerequisites for the job. Although employers have the right to freely require a background check for employees in New York and New Jersey, there are some regulations that small business owners should be aware of.

According to the new federal guidelines, employers are no longer legally permitted to issue a blanket "no" if the applicant in question has a criminal record. Instead, employers must determine if the record will have any effect on the applicant's suitability to the job.

The other important set of regulations to keep in mind when hiring is the Fair Credit Reporting Act. The FCRA delineates the rights consumers have to protect their credit and other personal information. The FCRA clearly states that businesses must have a "permissible purpose" in order to pull credit information while hiring. This information is important because there has been a recent uptick in lawsuits pertaining to potential FCRA violations. If you are a small business owner and are unsure whether or not you have legal permission to request a credit report, you should consult an attorney with experience in labor issues. Again, you should have a clear reason for requesting a credit report before you do so. This reason must be pertinent to the job in question.

Remember, any violations of the federal guidelines will result in monetary penalties for your growing business. The avoidance of fines and lawsuits could make the difference in the success or failure of your business.

If you have any questions or concerns about the hiring process, feel free to contact my office at (718) 313 - 7563.


- Kevin P. McKernan

Purchasing a Home? Here's a Few Tips

Purchasing a home, especially for the first time, is an important financial decision. Choosing a fix-up property can oblige you to extensive renovations and/or costly repairs while

1. Evaluate your finances.
It's standard to review your finances so you have some idea of the budget you'll be working with as you search for a house. However, it's also important to communicate with your lender and get a letter of pre-approval before you begin your search. Don't make the mistake of falling in love with a home without being able to make a serious offer on it. Get your paperwork in order first, so you'll have clear expectations about what you need and what can you offer.

2. Don't make an offer on a "fixer-upper" without thinking of the financial implications.
Renovating a home can be a fun and worthwhile project, but don't forget to calculate the cost of repairs, renovations, and time spent first. You can get a great deal on a home and end up using up those savings in repairs you didn't anticipate. Pay close attention to the home inspection and get estimates on any repairs you plan on doing.

3. When you calculate your budget for a home, make sure to consider the additional expenses homeowners have.
If you fall in love with a home priced at the top of the budget, make sure you consider the additional expenses of homeownership such as property taxes, fees from a homeowner's associations, and normal upkeep and maintenance of a home. If these calculated expenses put you over budget, consider other options. New homeowners will sleep easier at night knowing they have a solid financial buffer.

4. Use a real estate agent and an attorney you trust.
It's important that you have experienced people to help guide you through this process. A good real estate agent is invaluable when investing in a home. Your agent should be experienced with selling homes in the area you're looking to purchase in and easily available over phone.

Protect Yourself Financially Before You File for Divorce

Divorce often puts people on a shaky financial ground. The prospect of splitting of assets can be scary and fraught with complications. So what can you do to make sure you'll be protected financially when you decide to divorce? Below are some tips to help you prepare.

1) Review your financial documents.

Now is the time to get all of your financial documents together. Firstly, you will need most of these documents when you go to Court anyway. Secondly, it is important to have an up-to-date picture of your financial situation. You should carefully review and duplicate these papers. You should also request a credit check and review the report carefully. You are entitled to a receive a free credit report once a year. If you will be moving to a new home or apartment, this may be the first time you will have to apply for housing using only your credit score. Remember, knowledge is power!

2) Change accounts into your name.
You may have opened joint bank accounts, credit cards, and/or other loans during the course of your marriage. It is wise to open a bank account with you as the sole account holder so that you have a secure way to store and access money. Additionally, you should close out all joint credit cards at soon as possible, as to avoid your significant other making unapproved charges.

3.) Be mindful of taxes
A divorce will change the way you file for taxes. Make sure you are aware of how the date your divorce is finalized might affect the way you file taxes for this year and the next. You might want to consult a tax attorney if you are unsure about any part of the process.

4) Avoid taking on additional debt
If you are considering filing for divorce, do not take on or cosign any new debt and encourage your spouse to do the same. Remember that any debt either of you takes on during the marriage will be considered joint debt. In this time period you want to be detangling yourself from any joined financial ventures, not taking on new ones. This will only further complicate the divorce process and could result in financial loss on your part.

5.) Update your will and insurance.
You never know when emergency situations will arise, so don't let yourself be caught be surprise. Make sure you update your will, insurance, and any other financial documents to reflect that your spouse is no longer your beneficiary. 

The Affordable Care Act Helps Your Small Business!

Recently, the Obama administration was able to pass the Affordable Care Act. The ACA is an extensive bill that will have a lot of positive effects on small business.
Here are some ways that the ACA will help you improve your small business:

1. Everyone knows that insurance can be incredibly expensive. Part of the aim of the ACA was the make healthcare more accessible to all types of people. Starting in 2013, a new program called SHOP (the Small Business Health Insurance Options Profram) will open Marketplaces where businesses can "shop" around for affordable health care programs. According to the U.S. Small Business Adminstration, small business pay on average 18% more than large businesses for health care. This gap should decrease by allowing businesses a place where they can compare and negotiate insurance prices.

2. The ACA also increases the available tax credit designed to help businesses with their health care expenses to up to 50% for those who participate in the Marketplace. Before the ACA, these businesses could only receive 35% in tax credits.

3. The ACA also created programs to improve the quality of care in the workplace. Under the act, workplaces receive increased rewards for instituting programs to help employees quit smoking or use a health-contingent plan.

4. With the ACA greatly increasing the number of people who have health insurance, small business on a whole will benefit by having healthier employees. Research shows that healthier employees are on average more productive employees. They take less time off from work and accomplish more when they are actually at work. Therefore, the ACA could provide a boost to the productivity of small businesses.

If you are a business owner and you have questions about how the ACA will impact your business, feel free to call my office at 718-313-7563.

Is It Impossible to Discharge Student Loans?

It has been widely reported that student loans cannot by discharged, even by bankruptcy. People believe that the only way to get rid of their student loans is through full repayment or death. However, this "common knowledge" is not entirely true. Although it is very difficult to get student loans discharged through bankruptcy and your particular situation must meet the right criteria, there are people who successfully discharge their student loans through choosing bankruptcy every year.

The first condition a person must meet if they wish to have their student loans discharged after filing for either Chapter 7 or 13 bankruptcy is that they must be able to prove that their student loans cause them "undue hardship." Judges use a three-pronged test commonly known as the Brunner test to establish undue hardship. In order to prove hardship, the applicant must meet all three prongs of the test. They are as follows:

1) the debtor[s] cannot maintain, based on current income and expenses, a 'minimal' standard of living for [themselves and dependents] if forced to repay the loans

2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and

3) that the debtor[s have] made good faith efforts to repay the loans

As you may have guessed by the three prongs of the Brunner test, "undue hardship" clauses are mainly used for people who people who have become permanently disabled and therefore unable to work. However there are other circumstances in which a judge may move to discharge your student loans. For example, a person who will be unable to provide necessities for his or her dependent children would be a good candidate to apply for undue hardship.

However, the difficulty of the undue hardship clause should not necessarily discourage you from trying to discharge your student loans. A recent study published by the American Bankruptcy Law Journal found that 39% of people who went through the process correctly were able to discharge their student loans. This directly contradicts the popular idea that it is impossible to get rid of your student loans.

If you find that your loans are causing you extreme financial hardship, you should consult an attorney experienced with bankruptcy. A bankruptcy attorney will be able to tell you whether or not your case has the potential to meet the three conditions for undue hardship and guide you through the process if it is. 

Criminal Background Checks During College Applications: How a Juvenile Offense Can Bar You from University

Juvenile Offenders are much more common in the United States than many people might guess. In fact, a 2012 study found that almost a third of American adults have been arrested for illegal or delinquent offenses by the age of 23. Although many of these juvenile offenders are able to get their records sealed or otherwise labeled confidential, there are still a plethora of "collateral consequences" that these young people must face as a result of their convictions. Traditionally, the collateral consequences of committing a crime might involve the danger of loosing jobs, public housing, public benefits such as welfare, and voting rights. Now, it has come to the legal community's attention that an increasing number of teenager offenders may be at risk for damaging their chances at college admission and/or federal financial aid. A recent study by the Center for Community Alternatives found that 66.4% of colleges currently collect information on their applicants' criminal records and this information is used in order to determine admissions.

The Common Application, the standard application used by colleges, specifically asks applicants "Have you ever been adjudicated guilty or convicted of a misdemeanor, felony, or other crime?" Other applications ask even more detailed questions, such as "Have you ever been pardoned or had your record expunged in any court? If so, please provide details as to the crime and conviction." Questions such as these pressure applicants, who have legally expunged, sealed, annulled, or confidential records, to disclose information that can be used against them in the admission process.

Another obstacle applicants may face is their eligibility for federal student loans. The Federal Application for Federal Student Aid, commonly known as the FAFSA, specifically excludes any student who was convicted of a drug related crime while receiving federal grants, loans, or work study from receiving federal student aid. A conviction for possession of a controlled substance results in a suspension from federal aid for one year, while a conviction for the sale of a controlled substance will earn students a two year suspension. Hundreds of thousands of students across the country rely on federal aid to attend college so a suspension can have a major impact on whether or not an applicant is achieve a higher education.

If you a young adult with a criminal record, there are several important things you should ask your attorney. The effects a conviction will have on you will be different depending on whether you are already enrolled in college or if you simply want to apply in the future and the status of your record.

You should also be aware of Penal Law § 1.05(6). The penal code states that one of the general purposes of the law is the "rehabilitation of those convicted, the promotion of their successful and productive reentry and reintegration into society." Penal Law § 1.05(6) may be helpful to your attorney in arguing your case, since it is obvious that hindering a teenager from receiving higher education would have an negative and unfair impact on his or her life.

If you are a juvenile accused of a crime, be sure to hire an experienced attorney. This is not a situation where you want to "go it alone." Juvenile offenses can have serious impacts on your future. You can reach my office at 718-317-5007.

An Update on New Jersey DUI Laws

New Jersey continues to tighten DUI laws in the past few months. On Friday, November 1, 2013, new laws took effect that increase the penalties for repeat drunk driving offenders. Drivers convicted of a DUI related offense will now have Ignition Interlock Devices on their vehicles for a minimum of one year, up from the former minimum of six months. An ignition interlock device is a new mechanism containing a portable breathalyzer that is fitting onto a car's dashboard. Drivers whose vehicles have been outfitted with the device are not able to start their car without first giving a breath sample. At random times the driver is tested while driving to ensure that the driver is not intoxicated.

Starting a Business? Here's Some Tips That Will Help

If you are contemplating starting a small business in New York, you are not alone. According to NYS, 98% of all businesses in New York are small businesses, and together these businesses employ more than half than the private sector workforce. Starting your very own business is very different than buying a business, which we discussed here. Unlike buying a business, when you start your own business you are in total control from the very beginning. You get to select everything, from the business name, to the location, to its employees. One of the advantages of starting your own business is that, according to NYS Department of Taxation and Finance, it is one of the least expensive ways of starting a business. One of the major disadvantages, on the other hand, is that by starting from scratch you must build your clientele and reputation from the ground up. Before you make any major decisions, you should carefully consider all your options and evaluate your financial situation. If possible, you may want to consult with other small business owners in your area so you have a first hand account of what a similar business should expect.

If you have decided on beginning your own business, congratulations! Here are few steps you should take before you open the doors:

• Decide what legal organization your business will be. The most common forms are the sole proprietorship, the partnership, the corporation and the LLC. You can find a “Pros and Cons” list of these organizations here.

• Sketch out a business plan outlining your product ideas and market strategy. Your business plan should include a description of your products and/or services, a list of your business goals and a timeframe in which you expect to achieve them, such as “Sell X amount of product in Y amount of time”, your plans for targeting your customer base and current trends in the market, and your financial situation, such as cash flow and profit and cost projections.

• Begin the employment process. First, you will need to obtain two vital types of insurance: unemployment and worker’s compensation insurance. These can be found either on your own through a private company or through NYS. You will also need to set up your payroll. It is recommended have payroll set up at least a week before you hire your first employee.

• Get an employee handbook. While not necessary, most new business owners find having a professional and comprehensive employee handbook makes managing people a lot easier. The handbook should explain company policy and include things such as vacation time, holidays, cellphone and/or computer usage, and behavioral guidelines.

I hope these tips help you out as you start your new and exciting foray into small business. If you have any questions or need assistance with beginning your business, don't hesitate to call the office at 718-317-5007. Remember, when in doubt, it's always better to contact a legal professional!

There Are Three New DUI Bills Pending In New York State Legislature

The New York State legislature is currently considering three new bills concerning driving while impaired. If passed, the three new bills will once again increase the penalties associated with DUIs. These bills are part of what has become a trend of harsher penalties and longer sentences for those convicted of DUI.

The first bill concerns offenders with multiple DUI convictions. The main purpose of the bill is to increase the severity of the charges that multiple DUI offenders will face. In this case, offenders with three previous DUI convictions who are involved a fatal crash can now be charged with vehicular homicide, a step up from the standard charge of vehicle manslaughter. Offenders charged with vehicular homicide can face up to 25 years in prison.

The second bill involves leaving the scene of an accident which is currently a felony whenever human injury or death is involved. A common defense for impaired drivers who left the scene of the accident is that they were too intoxicated to realize that they left. The New York legislature is now attempting to remove an offender's ability to use that defense.

The third bill aims to legally redefine "intoxication." Legally, when the word intoxication is used, it applies to being impaired by alcohol. The New York State legislature now wants to broaden that definition so that any substance that causes an impairment on someone's ability to drive. If passed, this bill would widely expand the criteria of what a DUI is. For example, drivers who are impaired by prescription pain medication could be charged with a DUI.

These new bills do not simply increase the penalties associated with DUI, but increase the need for offenders to have an attorney. A good attorney is essential to the outcome of your DUI case. Don't let a DUI conviction change your life forever.

For assistance with a DUI, you can contact my office at 718-313-7563.

- Kevin P. McKernan

What to Do When You Get a DUI

In my experience, the typical DUI client is an average person who made a mistake and now is facing enormous consequences which will affect their ability to get jobs, pay their bills, and even keep their freedom. Defending a DUI client, especially in New York and New Jersey, involves a very particular type of law since in these cases the prosecutors usually already have substantial physical evidence such as blood and urine results. For most clients, the majority of our defense will come down to pinpointing discrepancies and/or outright mistakes law enforcement made during your arrest. This involves meticulous review of your case - every detail counts in a DUI case.

Many peoples' first instinct is to consult their family or local attorney when they get a DUI. These attorneys do not often deal with DUI cases and all too often will look at the surface of the case and then advise their client to take a plea. Unfortunately, many clients do not realize that taking a plea in a DUI case has long term and serious consequences. When you plea to a DUI, you are admitting guilt and you will now have a (possibly felony) criminal record for the rest of your life. This means you will now be required to check "yes" when asked if you have ever been convicted of a crime on both job and college applications, may get your driving privileges suspended or even revoked, and your car insurance will undoubtedly be higher.

The best thing you can do if you are arrested for a DUI is hire a Criminal Defense lawyer. The more experienced your attorney is in DUI cases, the better off you will be. When looking for an attorney, remember that a DUI case is one where close and meticulous attention to detail is needed, so this is an attribute you should be looking for in your attorney. Another important thing to remember is that a skilled attorney often can make a real difference in the outcome of your case, so don't panic! Remember, in a DUI case, the surface facts of the case like your breathalyzer results are just the beginning. A good attorney will be able to build a solid defense from these facts.

If you or a loved one has been arrested on a DUI, feel free to contact my office at (718) 317 - 5007.

- Kevin McKernan

Mortgage Modification Can Affect Your Credit

Mortgage modification has recently become a popular option for homeowners who are having difficulty meeting their financial responsibilities. Mortgage modification can help financially strapped families avoid foreclosure and remain in their homes. However, it is important to know that mortgage modifications can also have an effect on your credit.

When you apply for and subsequently accept a mortgage modification from your lender, that modification is reported to the three credit bureaus. The report should indicate that you, the mortgage holder, are participating in a program that qualifies you to send in partial payments on your mortgage. This is translated negatively on the your credit report, leading to a decreased score. 

The good news is, the hit on your score will most likely be small. The U.S. Treasury Department recently reported that it can range from 30-100 points. For a family facing foreclosure, which is guaranteed to create an even larger hit to the credit score, it is probably worth it to take the smaller decrease and move forward with mortgage modification. Fortunately, credit bureaus are now developing a new way to report some mortgage modifications in a way that will not negatively affect your credit. Still, it is important to be aware of all the financial implications of any mortgage modification. Possible unforeseen effects, such as decreased credit, are why it is so crucial to consult an attorney before making major financial decisions. Your attorney will guide you through the process and help you make the right decision for your family.

- Kevin McKernan

The Hidden Cost of Speeding Tickets

Some people get speeding tickets, pay the fines, and shrug it off. However, speeding tickets can cost you way more than just the face value of the fine. In New York, speeding tickets are associated with points, whose accumulation on your license can lead to suspension. Many people simply don't realize how much money simply accepting a speeding ticket will actually cost them.

First, you must pay the ticket itself, which depending on the speed you were pulled over at, could be anywhere from $45-$600. Then you must pay the associated surcharges. In New York, many speeding tickets come with surcharges of up to $100.

After you have paid all the fines and surcharges surrounding your ticket, you must accept the points that will be added to your license. If you have been ticketed with other driving violations in the past and have accumulated 11 points in the past 18 months, your driver's license may be suspended. Furthermore, if you have had three speeding incidents in the past 18 months, even without them adding up to 11 points, your driver's license may be suspended.

Finally, your insurance may increase as a result of a bad driving record. This results in you paying more each year for the same insurance!

The best way to avoid the consequences surrounding a ticket is to get an attorney. Experienced attorneys have handled hundreds of these matters and know how to make you walk out with the least possible amount of points and/or fees. A traffic attorney will help you navigate the situation to the best possible outcome.

If you received a traffic ticket in New York or New Jersey and need assistance, feel free to call the office at (718) 317-5007.

- Kevin McKernan

How to Handle Post-Divorce Legal Issues

Even after the divorce decree is finalized, some families have disputes over its execution that need to be settled in Court. As an attorney who has spent many years practicing Family Law, I must stress the importance of consulting an attorney, even post-divorce, if legal conflicts within the family arise.

Another important thing to do when legal conflicts arise is to take your divorce decree outside of its safe place and carefully read it over. Any legal argument you will use in Court will start from there. The New York Supreme Court recently ruled in a case that exemplies this. In this particular case, a father was financially supporting his child by providing for her apartment. The father fell behind on his child support payments. When he was taken to Court for his delinquency, he argued that the financial support he provided outside of his set amount of child support should satisfy his obligations. The Court ruled that his financial support of the apartment was a voluntary payment that the Father had chosen to make and therefore could not be used to satisfy the child support obligation that both parties had agreed to in their divorce decree. The primary reason the Court ruled this way can be found inside the parties divorce stipulation. The stipulation included a "Voluntary Payments" clause that stated that any outside payments made to either party could not be used to satisfy the amount of child support they had agreed on.

Cases like these often generate unnecessary legal fees and hostility for all parties. Furthermore, they can be easily avoided by consulting a Family Law attorney any time you have a question about the specifics of your divorce decree. In this particular case, the "Voluntary Payments" clause prevented the father from applying any outside financial support to his child support payments, but he might not have been aware of the legal implications of such a clause. You should expect your attorney to provided a detailed review and explaination of your entire divorce stipulation. Additionally, I strongly advise all of my clients to keep records and hard copy receipts of each and every payment made to the other party. It is always helpful to have an organized and detailed paper trail in case a legal dispute arises.

Get the Benefits you Deserve in your Divorce!

As an experienced attorney, I know how important it can be to have a lawyer to handle your legal matters, especially in cases that can turn contentious such as divorce. Unfortunately, some people will still "go it alone" by trying to use "quick and easy" divorce paper sites or divorce "consultants". While these cases may work out happily if the divorce is an amicable matter with little to no assets and no children, most divorces are not so clear-cut. In an emotionally charged matter such as divorce, it is important to have an objective outsider who can guide you rationally.

Remember, the things you agree to in your divorce will affect your future!

For example, if you decide to go to Family Court without an attorney to represent you and you agree to only weekend visitation with your children and then later change your mind, you will have a long, difficult, and needlessly expensive legal battle ahead of you. However, if you hire an experienced attorney from the start, your visitation rights can be secured from the very beginning and then used at your discretion.

Another benefit of being represented by a Family attorney is that they will be knowledgable about what exactly you are entitled to in your divorce. It is common for clients to not even realize that they could ask and be rewarded certain funds until their attorney informed them. For example, you may not know you may be entitled to your former spouses' Social Security benefits. If you were married to your spouse for 10+ years, are older than 62, are not re-married and don't qualify for Social Security benefits in your own right, there is a significant chance you will be entitled to a share of your former spouses' benefits! Additionally, you can be entitled to your former spouses' Social Security Benefits even if they have passed away.

Take care of your future and consult a Family Law attorney today.

- Kevin McKernan

Felony Convictions

There are few things as stressful as getting charged with a felony. In New York and New Jersey, felonies are highly serious crimes that come with a multitude of consequences. For example, if you are convicted of a felony, you may no longer vote, sit on a jury, obtain a firearm, or use welfare. Additionally, many companies are in the practice of performing extensive background checks before they take on new employees and a felony conviction may hamper your changes of obtaining jobs in certain fields.

In New York there are five classes of felonies, ranging from A-E. There are hundreds of crimes that fit into each class, but I've put together a quick guide to what crimes correlate to each class of felonies.

Class A is the most seriously class of felonies.
Class A Felonies include: murder, treason, arson, kidnapping (all in the first degrees)
Violent Felony Sentence: Life, 20-25 years

Class B Felonies include: Aggravated Assault of a Police Officer, Burglary 1, Criminal Possession of a Weapon 1, Rape 1, Bribery 1, Grand Larceny 1, Insurance Fraud 1
Violent Felony Sentence: 5-25 years
Non Violent Felony Sentence: 1-3, max 25 years

Class C Felonies include: Aggravated Sexual Abuse 2, Burglary 2, Robbery 2, Bribery 2, Manslaughter 2, Vehicle Manslaughter 2
Violent Felony Sentence: 3.5-15 years
Non Violent Felony Sentence: probation, 1-15 years


Class D Felonies include: Assault 2, Criminal Sale of a Firearm 3, Sexual Abuse 1, Bail jumping 1, Criminal Sale of Marijuana 2, Stalking 1
Violent Felony Sentence: 2-7 years
Non Violent Felony Sentence: probation, 1-7 years

Class E Felonies include: Abandonment of a Child, Arson 4, Defrauding the government, Stalking 2, Computer Tampering 2, Criminally Negligent Homicide
Violent Felony: Probation, 1.5-4 years
Non Violent Felony: Probation, 1-4 years

Please remember that this information is taken from New York Penal Law Article 70, Sentences of Imprisonment. It does not mean that you can calculate your prison or probation time from this guide. You can receive jail time for Class C, D, and E felonies, however, jail time isn't mandatory like it is with Class A and B felonies. Prior Convictions often have a big impact on sentencing.

If you have been convicted of a felony, you should hire an attorney as soon as possible. An experienced attorney will be able to give you a more accurate estimate of what your sentencing will be. They can also advise and guide you through the process. If you are in need of a Criminal Defense attorney, you can call my office at 718-317-5007 or contact me at www.kmckernanlaw.com

Infidelity, Stay at Home Parent, or Financially Vulnerable? Consider a Post-Nupital Agreement!

We've written about pre-nuptial and cohabitation agreements, but do you know that many couples are now opting to draw up post-nuptial agreements? A post-nuptial agreement is a legal agreement between a couple that is made after the marriage has already taken place. Couples chose to sign a post-nup for a wide variety of reasons. One common reason that couples choose post-nuptial agreements because one partner has chosen to be a stay at home parent. If the couple decides that one partner will put his or her career on hold in order to stay at home with the couple's children, they may also decide to place the economic protection of a post-nuptial agreement in place. Parents who chose to stay home with their children often not only miss out on their peak earning years but lose time ordinarily spent climbing the career ladder.

If you or your partner has decided to become a stay at home parent, it's easy to protect yourself financially! Your first step should be to consult an attorney who specializes in Family Law. You should explain the specifics of your family's situation. Your attorney can then draft your family's custom agreement. Families can choose whatever financial arrangement is right for them (within the parameters of Family Law) and map out how their assets and the future of your finances in the event of divorce.

Post-nupital agreements have also become popular options for couples who have experienced infidelity. Depending on personal circumstances, couples can draw up anything from a "infidelity clause" in their post-nupital agreement to a shift of assets into the betrayed spouse's name for his or her financial security.

Post-nupital agreements can protect the entire family's financial future and ease the divorce process if it ever occurred. If you are married and in financially vulnerable position as a result, I strongly recommend you look into drafting a post-nupital agreement.

-Kevin P. McKernan

Amendment to the NYS Ignition Interlock Device Law

Recently, some new amendments to New York State Ignition Interlock Device Law were signed into law. The amendments change several key points of the procedure:

1. It is now a class E felony to drive while intoxicated on a conditional license. You will be charged with first degree aggravated unlicensed operation of a motor vehicle.
2. Youthful (under 18) DUI offenders will now be treated just like their adult counterparts. Before the amendment, it was not mandated that youth offenders get an ignition interlock device installed like it was for adult offenders.
3. The minimum period that an interlock ignition device will be installed was increased to one year. Before the amendment, the minimum was only 6 months.
4. The period of time that the interlock is on now begins from the date of sentencing, or the date that the device was installed if it was done in advance. Prior to the amendment, no “time served” was credited if the interlock was put on before sentencing.
5. In order to avoid the installation of the interlock device, an offender must swear under oath that they do not own a vehicle.

New Jersey DWI Legislation Mandates More Ignition Locks!

New Jersey has recently seen a few pieces of legislation that push for the installation of more Ignition Interlock Devices in the vehicles of DWI offenders. An Ignition Interlock Device is an increasingly popular piece of technology that, once installed, forces potential drivers to take a Breath Alcohol Analysis test before their vehicle's engine is able to start. 

Previously, New Jersey law mandated a three to seven month license suspension for first time offenders. Now, the NJ Legislature is considering a bill that would allow DWI offenders to avoid the license suspension penalty by mandating that all drivers convicted of DWI allow their vehicles to be fitted with the Ignition Lock device. 

If the legislation is passed, it will have a big impact in the way DWI cases are handled in New Jersey. One of the most far-reaching consequences of a DUI conviction is license suspension, which often prevents offenders from getting to work or school and thousands of dollars in fines, insurance premiums and commuting costs. Advocates of the bill assert that it will shift the focus of New Jersey DWI policy to prevention instead of simply punishing first time offenders. 

If you or a loved one is facing a DWI in New Jersey, it is important you contact an experienced attorney as soon as possible. An attorney who is familiar with these recent shifts in legislature is invaluable in cases such as these.

What You Can Do When Divorcing a Hostile Spouse

Divorce is an emotional process that can cause even the most amicable of spouses to bicker. In fact, it is not uncommon for one or both spouses to "go hostile" and make financial or child related threats during the divorce process. One spouse may make statements such as "I'm going to get the children in court" or "I'll make sure this divorce will bankrupt you." Threats like these don't at all mean that the court will allow them to occur, but they can easily become intimidating and frustrating for the spouse on the reviving end. If you are in the midst of a divorce with a "hostile spouse", there are steps you can take to protect yourself.