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Questions Answered by Marco Caviglia
1 Answer | Asked in Child Support and Family Law for New York on
Q: Does my husband have to pay back child support?

We set up a separation agreement in Oct saying he would pay 2,600 a month . In Dec he stopped paying . We’re not divorced yet so the separation agreement is only notarized so far . I’m filing for child support through the court , not waiting for the divorce to be seen by a judge . When we go to... View More

Marco Caviglia
Marco Caviglia
answered on Jan 10, 2024

A properly executed separation agreement which includes child support is enforceable without any Supreme Court divorce action, and may be used to have a support magistrate in Family Court proceed, and yes, should result in arrears being paid.

1 Answer | Asked in Estate Planning, Family Law and Elder Law for New York on
Q: Is there a time limit that a will should be settled by an appointed executor?
Marco Caviglia
Marco Caviglia
answered on Jan 10, 2024

An executor is a fiduciary, which means that s/he has personal responsibility and liability for all assets and liabilities of the estate. However, the executor has no powers until obtaining letters testamentary or preliminary letters testamentary from the Surrogate's Court as a result of... View More

1 Answer | Asked in Divorce and Family Law for New York on
Q: I’ve been divorced for 5 years. My ex wife still calls me to tell me my daughter is rude to her and I need to handle it

This has become harassment because it is constant. Is there anything that I can do?

Marco Caviglia
Marco Caviglia
answered on Jan 10, 2024

To constitute harassment, there has to be some criminal intent, especially for the crime of aggravated harassment (using the phone to do so). However, in the general sense it is used, that she is being a bother, the question is what is your relationship with the daughter? Are you exercising... View More

1 Answer | Asked in Divorce and Family Law for New York on
Q: Are all higher earning spouse always has to pay spousal support? Even in relationship abandonments situation?
Marco Caviglia
Marco Caviglia
answered on Jan 10, 2024

The spouse with more earnings is not necessarily always obligated to pay spousal support, although that is essentially the presumption. In fact, you can find out how much the recipient spouse would be given, at least temporarily while litigation proceeds, by a calculator available from the Office... View More

2 Answers | Asked in Criminal Law for New York on
Q: If I spoke to a lawyer for a consultation and let him know I haven’t been charged can he tell the cops what i did

I spoke to a lawyer for a free consultation let him know I might have been in contact with an undercover for such and such isssue he asked me where how it happened my name my address all that stuff then sent me a contract to retain him but my question is can he go tell the cops so he gets my... View More

Marco Caviglia
Marco Caviglia
answered on Jan 10, 2024

If you spoke to him in the context of an attorney/potential client context, he is ethically bound to keep your information confidential even if you do not retain him. If he tells someone and that information reaches the police and you are arrested, the court, if it finds the incriminating... View More

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1 Answer | Asked in Consumer Law for New York on
Q: Seeking legal advice with a car loan the dealer make many mistakes on

Car purchased in 9/2023 for months I have called the credit union listed on all my paper work but they don’t know who I am. Dealer says banks are delayed and to be patient. Today my co signer received a bill from a completely different credit union saying he has to make the payment. It is my... View More

Marco Caviglia
Marco Caviglia
answered on Jan 10, 2024

If I understand your facts correctly, you got agreement from someone to cosign for a loan on your vehicle purchase. This makes him liable for payment of the outstanding balance as well as you. You state that somehow there are two creditors demanding payment, not just one. If you had two... View More

1 Answer | Asked in Consumer Law, Lemon Law and Arbitration / Mediation Law for New York on
Q: Can I file both a Lemon Law complaint and a Vehicle Safety Complaint in the state of NY?

I purchased a used vehicle from a dealer in early 2023. Immediately it started to present numerous mechanical issues, and in fact was not in my possession for five months as it was shuffled between three separate repair shops. I filed a Lemon Law Complaint through the NYS Attorney General in July... View More

Marco Caviglia
Marco Caviglia
answered on Jan 10, 2024

The key words I notice are "settled out of court" which means there was some sort of payment to you (as you did not have your vehicle replaced by the manufacturer as you may have been entitled) in exchange for some sort of release. The terms of that release are the crux of you civil... View More

3 Answers | Asked in Estate Planning for New York on
Q: What would be the best way to pass a house to adult child, via will or gifting before death .please explain ramification
Marco Caviglia
Marco Caviglia
answered on Jan 10, 2024

Parents can deed property to their child(ren) yet retain a life estate for the two of them. Upon death of the survivor, the children take the house. That is a pretty clean way of doing it. As part of the deed or in an executed agreement, it should be state who will be responsible for upkeep and... View More

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2 Answers | Asked in Family Law and Child Support for New York on
Q: My husband and I have been caring for his son for 6 years. He left his mothers care due to an abusive situation.

My husband and I have been caring for his son for 6 years. He left his mothers care due to an abusive situation. He is now 19. She has paid 129.00 per week for child support. We purchased a home so he could have stability and graduate in the town that we had been living in. His mom is bribing him... View More

Marco Caviglia
Marco Caviglia
answered on Jan 10, 2024

An adult child, though under 21 years of age, who is working can emancipate himself and if he is self supporting, there should be no consequences from Social Services as he would not be applying for assistance, which would come back to haunt both your husband and his ex. While it would eliminate... View More

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2 Answers | Asked in Divorce and Family Law for New York on
Q: Please, what is the statute of Limitations for filing an action to set aside a divorce agreement in NY? Can you cite it?
Marco Caviglia
Marco Caviglia
answered on Jan 10, 2024

Six years, but you are not merely seeking to void a "divorce agreement." You are attempting to undo a very detailed proceeding by the Supreme Court to ensure that everything was done properly and consensually. Even if timely, you may be blocked anyway if you benefitted from the divorce... View More

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2 Answers | Asked in Divorce and Family Law for New York on
Q: My ex husband filed divorce in New York where he lives I live in Tennessee. How can he send me the final divorce decree?

He claims the court says he cant send this paperwork through the mail. He has my certified copy of the divorce papers.

Marco Caviglia
Marco Caviglia
answered on Jan 10, 2024

I assume that by "divorce papers" you mean those papers to start an action in New York for divorce, not an actual divorce decree, which would be a done deal. To sue you for divorce as a resident of a "foreign" state, the Supreme Court in a matrimonial action may exercise... View More

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1 Answer | Asked in Divorce and Family Law for New York on
Q: How will substance abuse impact divorce?Also, my wife makes $180,000/year and I make $56,000/yearMightI get alimony?

We have been married 5 years and both got our current jobs after marriage.

She wants me to leave the house but I've heard that it's a bad idea to do that so I have stayed. Is that true?

Marco Caviglia
Marco Caviglia
answered on Oct 6, 2023

You have a short term marriage so spousal maintenance, if any, will be short and/or less than a longer term marriage. Substance abuse may be a factor, but if helps or hurts you depends on who has it and consequences. Leaving a marital residence voluntarily may be considered abandonment of it... View More

1 Answer | Asked in Civil Rights for New York on
Q: What is the 90 day New York City Supreme Court Civil Rule for Judge to Answer Motion

What action can be taken if judge does not answer motion timely

Marco Caviglia
Marco Caviglia
answered on Oct 6, 2023

CPLR 2219(a) requires that a motion be made within 60 days of its being joined (shorter for a provisional remedy). If a judge fails to render a decision in that period, one may pursue and Article 78 proceeding against that judge.

2 Answers | Asked in Real Estate Law for New York on
Q: Is there a way to tell if a real estate selling agent is legitimately raising the asking price of a house?

I was interested in a house that came on the market for $230K. After viewing, I made an offer. A few days went by and my agent said the seller had a better offer, so I offered more than the alleged other buyer offered. Again, I was contacted and told the other buyer had topped my offer. I again had... View More

Marco Caviglia
Marco Caviglia
answered on Oct 6, 2023

Off hand, I am unaware of a specific prohibition of such unethical conduct. If one obtains proof or a pattern of this conduct unique to that agent, then complaint may be filed with the NYS Dept. of State which licenses real estate brokers and agents and they may investigate. However, a hunch is... View More

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2 Answers | Asked in Child Support and Family Law for New York on
Q: Can I get the money I paid back since he was not there and was in military. Doesn't the custodial parent have to notify
Marco Caviglia
Marco Caviglia
answered on Oct 6, 2023

If the supported child no longer has a right to support, an argument of fraud may be made, for its return in an action against the other parent. The amount of money you would get back will determine if it is economical. However, you should seek modification of the support order as well. Consult... View More

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1 Answer | Asked in Family Law, Estate Planning and Probate for New York on
Q: My sister left mutual fund money to my mother but my mother’s death preceded the death of my sister. My sister’s husband

also died and before that his brother was appointed his guardian as he had dementia. Am I entitled to this money or should it go to my sister’s husband’s family? This happened in New York City.

Marco Caviglia
Marco Caviglia
answered on Sep 19, 2023

The term "left" is ambiguous. If the mutual fund had someone as the beneficiary and that beneficiary predeceased, the fund reverts to the decedent's estate. If the mutual fund was bequeathed in a will, then the will must be reviewed to determine if someone else specifically gets... View More

2 Answers | Asked in Estate Planning and Probate for New York on
Q: My father past away. We don't know if he left a will or a trust. How do I find out.

There's 2 other siblings

Marco Caviglia
Marco Caviglia
answered on Sep 19, 2023

Check the Surrogate's Court of the county he might have filed his will, typically that of his residency, for a will. If nothing is there, contact the attorneys you are aware he most recently used for legal matters. If that's a dead end, run an advertisement in the local bar association... View More

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2 Answers | Asked in Real Estate Law for New York on
Q: Is a real estate deed still valid if it was never recorded?

Hi,

My father recently passed away. About 5 years ago my father told me that he recorded a new deed for his house. The new deed transferred ownership from him, to him and me, with joint tenancy with the right of survivorship. We found the original deed in his house, it was completed and... View More

Marco Caviglia
Marco Caviglia
answered on Sep 19, 2023

An unrecorded deed is still valid and should be recorded asap, as NYS is a "race" state meaning of two valid deeds, the first filed has priority even if the other was more recent. Upon the death of one joint tenant, the survivor automatically obtains full ownership. Also, although there... View More

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2 Answers | Asked in Contracts and Civil Litigation for New York on
Q: Counter claims left open despite motion to dismiss because they are evidence to the case

A case was filed by plaintiff and in answer to Summons defendant listed 4 counter claims without specific remedies. This is because the value has not been determined. The work is incomplete by plaintiff. Plaintiff has filed a motion to dismiss defendants counter claims. This was a window install... View More

Marco Caviglia
Marco Caviglia
answered on Sep 19, 2023

Understanding your intended question is challenging, but I'll take a stab. There is a breach of contract claim and the defendant filed several counterclaims. Plaintiff seeks dismissal of the counterclaims before trial which will be unlikely unless there are no material facts to be determined... View More

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3 Answers | Asked in Consumer Law, Personal Injury and Products Liability for New York on
Q: If a case is reassigned in federal court to a different judge, do previously submitted motions need to be resubmitted?

If, in a federal civil action, a case is reassigned from a magistrate judge to a district judge and all hearing dates are vacated with the order that "motions must be renoticed for hearing before the judge to whom the case has been reassigned," does that mean the previously submitted... View More

Marco Caviglia
Marco Caviglia
answered on Sep 9, 2023

Generally, reassignment of a case does not mean it starts all over again. That goes for motions which were filed and presumably decided already. The rulings are considered the law of the case. Essentially, the new judge picks up where the former judge left off.

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