Learn More about LoTempio P.C. Law Group

Author: LoTempio P.C. Law Group

How will divorce or separation affect your taxes?

If you will be finalizing your divorce or legal separation this year, you need to know how changing your marital status will affect your taxes. We can’t give legal advice or cover every topic in a blog post, but a few of the major issues include how alimony and child support are treated, contributions to individual retirement accounts, and name changes.

Child support is not considered taxable income and cannot be deducted by the paying party. However, if you have children, you should know that you may be able to claim them as dependents. Generally, the custodial parent gets to claim the children as dependents. The custodial parent is defined, for IRS purposes, as the parent with whom the child lived for the greater part of the year.

However, you may negotiate different arrangements for claiming dependents as part of your divorce or separation agreement. If the parent who will be claiming the dependents is not the custodial parent, the custodial parent must sign Form 8332 (or a similar statement) and the claiming parent must attach it to his or her return.

Alimony, meaning spousal support or maintenance, is different. According to the IRS, alimony is considered taxable income to the recipient and can be deducted by the payer. There are a couple of important things to keep in mind. First, payers can deduct alimony whether or not they itemize their deductions. Second, alimony is not subject to tax withholding, so recipients may end up with a surprise bill at tax time. To avoid that, you can make estimated tax payments ahead of time, or you can increase how much in taxes is being withheld from your paychecks.

Contributions to IRAs are also affected by divorce and separation. If your divorce decree or separate maintenance agreement is finalized by the end of the tax year, you will only be able to deduct contributions made to your own traditional IRA. In past years you may have deducted contributions made to your former spouse’s IRA, as well, so note the change.

Name changes are common after divorce and separation. If you decide to make such a change, the IRS says to notify the Social Security Administration. The name on your tax return must match your Social Security record, and a mismatch could cause processing problems and delay your refund.

Whatever your situation, your divorce attorney can provide specific answers to your questions or refer you to an appropriate expert.

A reverse mortgage may help some divorcing couples with housing

The Society of Actuaries says that Americans are living longer. Statistically, half of all women and a third of all men who are in their 50s today will live to 90 years of age. Among married couples, there’s a 50-percent shot that one of the spouses will live to 92.

If you’re unhappy in your marriage, that’s a long time to be miserable. And indeed, as longevity trends upwards, more people in the Baby Boom generation are getting divorces. This trend is often referred to as “gray divorce” — divorce over 50.

The issues involved in a gray divorce can be different from other couples’ experience. Most people in their 50s no longer have small children to raise, so child support and custody recede as crucial issues. According to the American Academy of Matrimonial Lawyers, the top issues of dispute in gray divorces are:

  • Alimony
  • Division of retirement accounts and pensions
  • Division of business interests
  • Division of the family home and other real estate

That’s not terribly surprising. Recent research by the National Center for Family & Marriage Research at Bowling Green State University points to the fact that divorce after 50 could put ex-spouses behind when it comes to retirement security. Even dividing the family home may yield less than each spouse needs individually for a comparable living situation.

One tool that may help older divorcing couples is the reverse mortgage. We recommend seriously considering the option, but only after a serious discussion with your divorce attorney or a financial planner. No financial tool is right for everyone, and reverse mortgages may have downsides in your situation.

What could a reverse mortgage be used for in a divorce? Often, one member of the divorcing couple wants to remain in the family home but can’t afford to buy out the other spouse’s interest. If the spouse who wants the house qualifies, they could take out a lump-sum distribution from a reverse mortgage and use it to pay most or all of that buyout.

Whether you choose that path or sell the home and divide the proceeds, a reverse mortgage-for-purchase could allow one or both spouses to buy another home at a lower initial cost.

The reality is that divorce often entails a degree of financial loss as one household is divided into two. People who divorce younger have longer to recoup that loss. Older people who divorce have to find ways to reduce their monthly bills — and ideally, they should have some investments that provide cash income. In the right circumstances, a reverse mortgage may turn a monthly bill into a cash generator.

What to do after an accident

Accidents happen every day, at work, school or even while you are just strolling down the sidewalk in Buffalo. Often, they happen because of someone else’s negligence. When you suffer an injury because another individual was careless or reckless, like a distracted driver, you should not have to bear the burden of high medical expenses, lost damages and the repairs to your own vehicle. If the other driver had decided it was more important to text while driving, you would not have a broken arm, whiplash and a strained back.

After an accident caused by a driver that was negligent or reckless, many people choose to file a personal injury so that they can recoup the damages they suffered. If you are considering pursing a personal injury claim, then read further for information about the first steps in a claim.

Collect evidence

Once you have received the appropriate medical aid for your injuries, it is time to prepare your case. Gather evidence about the accident. This includes photographs, your resulting medical records and bills, and witness statements. In addition, write down everything you can remember about the accident. Once you have sufficient evidence, it is time to send notice to the person against whom you will be filing the claim.

Providing notice

While there is not specific timeframe within which you must notify the defendant of the claim, it is typically best to take legal action as soon as possible. The longer you delay, the longer it will take to resolve your claim. Once you provide notice to the at-fault party or parties, then you can take your time with the negotiation and settlement process.

Filing a lawsuit

You will have to file your lawsuit within the time limits prescribed by New York’s statute of limitation laws. Your attorney will be able to advise you on the best time to file the suit so that you do so within legal time limits. If the settlement process seems to be dragging on and it seems like the other party is purposely delaying it, take it as a sign that it is time to file a lawsuit. However, keep in mind that if you wait too long and try to file outside the state’s statute of limitations, the court may throw out your case.

If you have suffered injuries due to a car accident with a negligent driver, you may need to file a lawsuit in order to recover all of your damages and expenses. As soon as you have sufficiently recovered from your injuries, it is time to start the process so that you can get the compensation you deserve.

Facing DWI charges in New York? Four potential penalties

Maybe you had a drink or two; maybe you didn’t. Regardless, the sight of red and blue flashing lights in your rearview mirror can send your blood pressure soaring.

Those who are stopped and accused of driving while under the influence of alcohol can benefit from a basic understanding of the types of charges and the penalties that can apply in New York.

What types of charges can a driver get in New York?

The New York Department of Motor Vehicles notes that there are a number of different charges that can apply depending on the circumstances. The most commonly known is a driving while intoxicated (DWI) charge. This charge generally applies to those who are driving with a blood alcohol content (BAC) of 0.08 or higher.

If the driver is accused of having a BAC of 0.18 or higher, an aggravated driving while intoxicated (Aggravated DWI) may apply.

What types of criminal penalties come with these charges?

A variety of criminal penalties can apply, depending on the details of the allegations. Four of the more common include:

  • Driver’s license suspension. This penalty can vary from a 90-day suspension to a six-month revocation to a permanent revocation depending on the details of the allegations.
  • Monetary penalty. A first DWI can come with a fine that ranges from $500 to $1,000, a second conviction ranges from $1,000 to $5,000 and a third within ten years results in a fine of up to $10,000. An aggravated DWI conviction comes with stiffer penalties. An initial fine for this conviction can range from $1,000 to $2,500 and a second offense can jump to $5,000.
  • Ignition interlock devices. In some cases, a drunk-driving violation can come with a mandatory ignition interlock device requirement. These devices require the driver to provide a breath sample before the vehicle will start. The cost of installation and maintenance is generally the driver’s responsibility.
  • Imprisonment. Even a first DWI offense can result in one-year imprisonment. A second offense can result in up to four years, and a third up to seven years. Aggravated DWIs have the same potential jail terms.

In addition to previous offenses, factors like the presence of a child in the vehicle or an accident that results in property damage or injury can also result in increased penalties.

What should I do if I am facing DWI charges in New York?

Those facing these charges should take the charges seriously. A charge does not automatically become a conviction. Charges can be fought. Defenses are available that can result in a dismissal of charges.

The right defense strategy depends on the details of each case. Each case is unique. As a result, it is wise for those facing these charges to seek the counsel of an experienced criminal defense lawyer. This legal professional will review the details of your case can help craft a defense to better ensure your rights are protected.

New York DWI charges demand an aggressive legal defense

Getting charged for driving while intoxicated (DWI) can have life-altering consequences. Many social events, from sports games to office parties, serve alcohol. It’s possible to get behind the wheel of a car feeling confident in your ability to safely drive only to be pulled over or caught up in a roadblock. Occasionally, people have false positives on breathalyzer tests as a result of medical conditions. Other times, there could have been an issue with the way law enforcement administered the test. Whatever your personal situation, if you’re facing DWI charges, you need to talk with an attorney.

If you simply plead guilty to avoid court and other issues, the DWI charge could cause a lot of issues. Even speaking with law enforcement in hopes of clearing up a misunderstanding could hurt your case. As soon as you’ve been arrested or charged with a DWI offense, you need to speak with an experienced New York criminal defense attorney. The consequences for a DWI offense are high. You shouldn’t risk losing your license, your freedom, even your job.

DWI penalties are serious, even for first-time offenders

You may imagine that if this is your first offense, the courts will be lenient. Many times, they are anything but. Penalties for drunk driving have less to do with the immediate impact of your one mistake and more to do with deterring you and others from driving under the influence in the future. The courts may try to prevent a future infraction by ordering the maximum sentence in your case. If you plead guilty or are convicted, your first DWI charge could result in a $500 – $1,000 fine, up to a year in jail and the loss of your license for at least six months.

The standard cutoff for blood alcohol content for a DWI is anything that is 0.08 percent or higher. If your BAC is 0.18 percent or higher, you could face aggravated DWI charges, which carry more severe penalties. Although the maximum jail sentence is still one year, the fine increases to between $1,000 and $2,500. You’ll also lose your license for at least a year. Subsequent offenses carry increasingly high fines, jail times and periods without your license. Losing your license or going to jail could mean losing your job and financial security.

Your attorney can help you create a thorough defense

If you believe medical conditions contributed to your DWI offense, an attorney can help you create a medical defense. Your attorney can help you explore all the legal options available. For first time offenders, the state may be willing to reduce or eliminate the charges if you commit to substance abuse therapy. The best way to determine what options are available to you is to speak with an experienced New York criminal defense attorney as soon as possible after your arrest.

Source: Nov. 30, -0001

DWI consequences involve more than just fines or jail

In order to reduce the risks associated with intoxicated drivers, New York has implemented severe penalties for those charged with driving while intoxicated (DWI) offenses. Repeat offenders, especially, face harsh consequences, even if no one was hurt as a result of the alleged drunk driving. The higher your blood alcohol content (BAC), the stiffer the potential penalties for driving. A third offense in a ten-year period, even with a low BAC, could result in up to seven years in prison, thousands of dollars in fines and the loss of your license for a full year after incarceration.

Even first-time offenders, who could avoid jail time, face loss of their license for between six months and year, depending on their BAC. When you’re facing a DWI charge, your first instinct may be to either talk with law enforcement to explain your situation or simply plead guilty to get over with the process. Talking to law enforcement without an attorney is almost always a mistake. You could be providing a statement that is later used to convict you. Similarly, pleading guilty could result in serious consequences. Judges aren’t always lenient at sentencing just because you plead guilty.

There are social consequences for DWI offenses, too

Even if you avoid jail time, a conviction or guilty plea to a DWI charge could cause a host of issues. Depending on your line of work, your employer may have a strict no-convictions policy. Even if your DWI charge is a misdemeanor and not a felony, your employer could terminate your employment due to a conviction or guilty plea. Finding a new job or even moving to a new apartment could become more difficult with a criminal record.

Even if your employer doesn’t have a strict policy about criminal records, a DWI could still make you lose your job. If you avoid incarceration or your employer allows you to take time off while you are in jail, you still won’t have reliable transportation to get to and from work. Depending on taxis, ride-sharing services and public transportation may result in arriving late for work frequently. Chronic absenteeism or tardiness is likely to impact your ability to keep a job and grow your career.

Other people may treat you differently after a DWI charge as well. Unless you beat the charge, your record could impact socialization. People may hesitate to invite you to events where alcohol will be served. Co-workers and friends may be less likely to ride in your vehicle. The social stigma can be frustrating and dehumanizing. Your best option is to fight back against a DWI charge by working with an experienced New York criminal defense attorney. Your lawyer can explore options for your defense and will help you push for the best possible outcome when you’re charged with a DWI.

Can you refuse to take a breath test in New York?

New York has taken steps over the years to crack down on drunk driving. Harsh penalties are a means of deterring potential offenders. Unfortunately, innocent people also get caught up in drunk driving suppression efforts. Whether it’s getting home late when you have a babysitter because of a road block or facing unfounded criminal charges, citizens can and do feel negative impact from enforcement efforts. If you get stopped, either individually or as part of a roadblock, you may feel tempted to refuse the test. Doing so, however, could prove to be a serious mistake.

If you had issues with a field sobriety test or appear to be impaired, a law enforcement officer could ask you to submit to a breath test to check for the presence of alcohol. There could be a number of reasons why you may want to refuse this test. You could have taken a medicine with alcohol in it or be in need of insulin, which could result in a false positive. You could find the practice invasive. You could just be in a rush and want to get home. Regardless of the reason, your refusal is actually a crime under New York law. You have to take a breath test if law enforcement asks you to do so.

Implied consent means you have to take the test

New York state law is very clear about breath tests. Anyone who drives on public roads gives implied consent to roadside sobriety testing and chemical breath testing. If you want to drive, you have to agree to submit to testing when requested to by law enforcement. The act of refusing a test is in itself a crime. Your license can get suspended when you are arraigned in court. If the courts determine that you did, in fact, refuse the test, the courts will then revoke your license for a full year and assess a fine of $500.

If you refuse a chemical breath test within five years of a driving while impaired (DWI) or breath test refusal, you’ll get fined $750 and lose your license for at least 18 months. Even if you aren’t convicted of a DWI or other impaired driving offense, you will still lose your license. Although you want to avoid the consequences of a DWI, refusing a roadside test isn’t the answer.

Simply refusing the test doesn’t mean that the courts can’t convict you, either. Even without a chemical test to show your blood alcohol content, video from law enforcement cameras and testimony from the arresting officer may prove sufficient evidence. Law enforcement can bring up your refusal to take the breath test during court for your DWI charge as well. Refusing a breath test won’t protect you from legal trouble, but it can certainly cause a lot of other issues.

I got arrested for DWI. What should I do now?

If you’ve been arrested for DWI in New York, don’t assume that your only option is to plead guilty and hope for the best. Even if you think you might be guilty, there may be possible defenses available, as well as ways to minimize the damage of a conviction. We recommend contacting an attorney for an assessment of your case.

If you are convicted of DWI, you could be facing a number of serious consequences. For example, for a person over 21, a typical, first-offense DWI at 0.08 percent blood alcohol content could get you up to a year in jail and a fine of between $500 and $1,000. That fine doesn’t include the mandatory crime victims’ assistance fee, conviction surcharge, or driver responsibility assessments — or the increase in your insurance rates. In addition, your driver’s license will be revoked for up to six months. The court may require you to install and maintain, at your own expense, an ignition interlock device.

Unfortunately, New York state law does not allow you to plea bargain an alcohol-related charge to a non-alcohol-related violation. That does not mean, however, that there is nothing to be done to improve your situation.

Here in Buffalo, you’re probably still going to need to drive to work or school. New York allows people convicted of DWI and other alcohol- and drug-related driving offenses to enter the Impaired Driver Program, or IDP. Successful participation in the IDP or an equivalent out-of-state program allows you to apply for a conditional license/privilege that will allow you to drive for work or school during your revocation period.

If you’re under 21 or have a commercial driver’s license, the legal blood alcohol content is much lower. Plus, New York’s Zero Tolerance Law for drivers under 21 could affect your penalty. All of the penalties could be higher — including your driver’s license suspension — if you are convicted more than once, if there were aggravating factors, or if your alcohol impairment results in a serious accident. And, there may be additional consequences, depending on your specific circumstances.

A first-time DWI may be a misdemeanor, but it can totally change your life. You have the right to defense counsel, and we recommend you exercise that right.

What you need to know about Buffalo-area sobriety checkpoints

Police in most states, including New York, use sobriety checkpoints to discourage drunk driving. Police at checkpoints randomly stop drivers and look for signs of impaired driving. The checkpoints typically are used around holidays on routes that have a higher-than-normal rate of DWI arrests or DWI-related crashes.

Many people question the constitutionality of sobriety checkpoints, but the U.S. Supreme Court decided in 1990 that sobriety checkpoints are legal.

The court said reducing the number of drunken drivers outweighs law enforcement’s intrusion into people’s lives. Chief Justice William Rehnquist wrote in the court’s 1990 decision that checkpoints are “consistent with the Fourth Amendment.”

Today 38 states allow sobriety checkpoints.

How are sobriety checkpoint locations chosen?

Law enforcement agencies are not allowed to do anything they want at checkpoints. In response to legal decisions, the National Highway Traffic Safety Administration has provided guidance to law enforcement agencies regarding the use of checkpoints. The NHTSA says the duration and location of checkpoints must be reasonable. Its advice on locations says:

  • The safety of the public should be the top consideration when selecting checkpoint locations.
  • The location should be in an area where there have been a high number of drunk-driving-related crashes.
  • The location should present the least amount of inconvenience possible to the public. Before setting up a checkpoint, law enforcement should measure what the effect will be on traffic.
  • The location should have enough room on the shoulder for detaining motorists.
  • Multiple stretches of road should be considered when selecting a location.

Plus, the NHTSA advises authorities to publicize the checkpoints in advance. If checkpoints fail to meet the legal standard for duration, location and publicity, the arrests can be challenged in court and dismissed.

Erie County sobriety checkpoint locations

Sobriety checkpoints are common in the Buffalo area, and it is not unusual for law enforcement to arrest up to a dozen people at a specific checkpoint. A 2016 checkpoint in Cheektowaga, for example, yielded five arrests — four for marijuana possession and one for DWI, according to media reports.

Below are the locations and dates for sobriety checkpoints in Erie County for the past 12 months, according to duiblock.com.

  • Buffalo, September 3, 2017: West Seneca Street and Franklin Street
  • Buffalo, August 25, 2017: South Park Avenue Area of Buffalo River Bridge
  • Buffalo, July 11, 2017: Amherst Street and Elmwood Avenue
  • Tonawanda, June 17, 2017: Bottom of the First Grand Island South Bridge
  • Buffalo, February 24, 2017: Millersport Highway
  • Buffalo, February 17, 2017: Transit Road and Interstate 90
  • Depew, December 31, 2016: Transit Road and Genesee Street
  • Buffalo, November 23, 2016: Harlem Road and Genesee Street
  • Athol Springs, November 23, 2016: Lakeshore Road, near LaSalle Avenue
  • Buffalo, November 4, 2016: Main Street and Niagara Falls Boulevard
  • Elma, October 29, 2016: Transit Road and Southwestern Boulevard
  • Buffalo, October 29, 2016: Main Street and Kensington Avenue
  • Buffalo, October 15, 2016: Transit Road and Interstate 90

If you have questions about sobriety checkpoints or DWI, contact a knowledgeable DWI attorney.

Study: Hiring a DWI lawyer pays for itself in lower insurance

A New York DWI can be costly. Besides the potential jail time and driver’s license suspension, a conviction means a substantial fine, even for a first offense. Next, tack on the mandatory surcharge and crime victims’ assistance fee. You could also be required to install and maintain an ignition interlock device — at your own cost. When you’ve completed your punishment, you have to pay to get your license reinstated.

Those are just the direct costs of a DWI conviction. That doesn’t count the increase in your insurance premiums. The average increase in your insurance rate is $4,000 over a five-year period. With all that on the line, can you afford to hire a defense lawyer?

You can’t afford not to. It turns out, as we expected, that the cost of hiring a quality defense attorney is well worth it. In fact, it may pay for itself by limiting the increase in your insurance rate.

The folks at the insurance cost comparison website QuoteWizard tested the theory. They considered data on insurance rates, examined conviction statistics and talked with defense attorneys and concluded that hiring a lawyer saves the average defendant enough in insurance increases to pay for the cost of that lawyer. Plus, a large majority of people with attorneys get better outcomes.

Here’s what QuoteWizard found:

  • People convicted of DWI pay, on average, $830 more annually for auto insurance than people with clean driving records.
  • A DWI conviction raises your insurance rates much more than a negligent or reckless driving charge. A DWI increases those rates by an average of $1,460 more over a three-year period than the lesser charges.
  • People who hire private defense lawyers are three times more likely to have their DWI charge reduced than those who do not.

If you get pulled over for drunken driving, panicking won’t help. Now you know one thing that does help — hiring a lawyer.

© All Rights Reserved.