Direct responses to your most commonly asked questions
At the Law Offices of Randy H. Gugino, we believe that an informed client is important to establishing a powerful legal strategy. That is why we’ve taken the time to create a list of some of the more frequently asked questions. We encourage you to contact our firm directly if you have any additional questions.
Contact us to learn more about bankruptcy, matrimonial law, estate planning and real estate
If you have questions, we have answers. Contact our firm online or call us at 716-833-8455 to discuss the particulars of your case with a reputable and trustworthy attorney. Experienced Buffalo attorney Randy Gugino is always ready to offer thorough legal guidance.
Should I file bankruptcy?
I consider all of the facts and/or circumstances of each individual client before determining whether or not the filing of a bankruptcy is advisable. That is why I provide a free, no obligation first consultation to each of my clients. I review with your debts and assets to advise you on what debts are dischargeable, and what assets are protected under the bankruptcy code.
Will I lose my home?
In New York State a debtor can protect up to $75,000.00 each in equity that they have in their homestead. This means that joint debtors can protect up to $150,000.00 of equity in their home, providing the property is owned jointly.
What is the difference between a Chapter 7 and a Chapter 13 bankruptcy?
A Chapter 7 bankruptcy provides for the complete discharge of indebtedness, except where the debtor wishes to reaffirm on an obligation, such as a mortgage or a car loan. Under a Chapter 13 bankruptcy a percentage of your indebtedness is paid back over a three to five year period of time, the repayment plan depends upon the value of your assets as well as your budget. I personally meet with you to discuss your options, including credit counseling and debt consolidation, so we will be able to best resolve your financial difficulties.
Should I use my 40lk or IRA account to pay creditors before filing a bankruptcy?
Never do so without first consulting an attorney. Retirement benefits of this nature are generally exempt under the bankruptcy code, which means that you get to keep them should you file a bankruptcy. Therefore, depleting these assets prior to bankruptcy would be a big mistake.
What is a bankruptcy discharge and how does it operate?
One of the reasons people file for bankruptcy is to get a “discharge”. A discharge is a Court order that states that you do not have to pay most of your debts. The discharge only applies to debts that arose before the date that you filed for bankruptcy. It is important to list debts in your bankruptcy schedules. For example, it is possible that if you do not list a debt, the debt will not be discharged.
I filed a Chapter 7 bankruptcy in the past can I file again?
You can only receive a Chapter 7 discharge once every eight years. You may not file a Chapter 13 bankruptcy if you have filed a Chapter 7 bankruptcy within the last four years.
My house is in foreclosure, will a bankruptcy stop the foreclosure sale?
If you are qualified to file a Chapter 7 or a Chapter 13 bankruptcy, and have not had two or more cases dismissed within one year of filing a bankruptcy petition, an automatic stay will be granted upon the filing of your bankruptcy. An automatic stay stops the lender or creditor from continuing with the foreclosure without first making application to the Court to lift the automatic stay. Therefore, under a Chapter 7 bankruptcy, this may provide you with additional time in which you can attempt to modify your loan. In contrast, under a Chapter 13 bankruptcy, the arrearages owed to the lender are paid back over a period of three to five years, saving your residence.
Why should I choose you as my matrimonial attorney?
In short: my experience, my compassion and my willingness to meet with you personally as often as is necessary to make certain that you understand the Law as it applies to your situation. At least 90% of matrimonial cases do not go to trial, which is why you need to hire an effective negotiator who understands your goals and desires. Just because you may not be entitled to something under the Law, does not mean that we will not be able to negotiate a favorable settlement. For instance, we may be able to help you keep your marital residence or protect your retirement benefits.
Do we have no-fault divorce in New York State?
Domestic Relation Law §170 was amended to add “irretrievable breakdown” as a “no fault ground” for divorce. It provides that when a relationship between a husband and a wife has broken down irretrievably for a period of at least six months, a party under oath may assert the aforesaid as the grounds for divorce. However, no judgment of divorce may be granted upon such a finding unless and until the economic issues of equitable distribution, support, custody/visitation, have been resolved by the parties or determined by the Court.
Am I entitled to Child Support?
The custodial or residential parent of a child or children is entitled to child support from the non-residential parent under the New York State Domestic Relation Law §240 and Family Court Act §413. The statutory percentages for parties with a combined income of less than $136,000.00 are as follows:
•One child; 17%
•Two children: 25%
•Three children: 29%
•Four children: 31%
•Five children: no less than 35%
There are many factors involved in determining the mandatory income of the parties, the gross total income as report for Federal Income Tax purposes, investment income, and additional income such as workman’s compensation, disability, unemployment, social security, veteran, pensions and retirement plans, fellowship and stipends, annuity payments, are included in determining a spouses income. In addition, a Court may consider as additional income, non-income producing assets, fringe benefits such as meals, lodging, automobiles, etc., and money, goods or services provided by relatives and friends.
Deductions from income often include federal insurance contributions (FICA) unreimbursed employee business expenses, maintenance for a spouse or child support for a child not a party to the action, by prior Court order or written agreement, public assistance, supplemental social security, etc.
It is important to ascertain all sources of income and/or credits to which a spouse may be entitled when determining spousal maintenance and child support.
Am I entitled to share in my spouse’s retirement benefits?
A spouse is entitled to a distributive share of retirement benefits acquired by their spouse during the course of the marriage, such as profit sharing plans, pension plans, 401k plans, IRA accounts, and other retirement benefits provided privately or by the government.
What is a Property Settlement or a Separation Agreement?
A Property Settlement Agreement or Separation Agreement is intended to settle the parties respective property rights and other matters arising from the matrimonial relationship, including but not limited to custody/access, child support, child care and maintenance, equitable distribution of personal property, real estate, retirement benefits, assets and debts acquired during the course of the marriage. It is a contract that, once entered into, becomes binding between the parties, enforceable in a Court of Law, and typically incorporated into a judgment of divorce once an action for divorce is initiated.
Estate Planning and Probate
What is a Power of Attorney?
A Power of Attorney is an instrument authorizing another to act as one’s agent of Power of Attorney. Under the Power of Attorney, the grantor is appointing an agent as Attorney in Fact to conduct the grantors business affairs. A full Power of Attorney allows the Power of Attorney to conduct all of the grantors business affairs, without limitation. A durable Power of Attorney remains in effect even if the grantor is physically disabled or mentally incapacitated.
What is a Health Care Proxy?
The New York State Health Care Proxy allows an individual to appoint a trusted person to make health-related decisions with respect to medical treatment in the event that the party is not physically or mentally able to make such decisions. Hospitals, doctors and other health care providers must follow your agent’s decision if you are not able to decide for yourself.
Why do I need to have a Power of Attorney or a Health Care Proxy?
In the event that you are incapacitated and are unable to make financial or health-related decisions, a court of Law will designate someone to make these decisions — someone you may not have wanted to get involved with your affairs.
Why do I need a Will?
A Will is an essential document utilized in estate planning. A Will allows you to select to whom your assets will go when you die, and the manner or timing in which they will be received. Guardianship provisions can be established for minors and/or persons under disability, and trusts created to provide for their well-being. Simple issues such as funeral and burial arrangements can be specified, and sentimental items specifically bequeathed to family or friends. A trusted person can be selected by you as an Executor, to make certain that your final wishes are fulfilled. Without a Will in place at the time of your demise, these issues are resolved by Law in the Surrogate Court.
Should I transfer or gift assets to my children before my death?
Whenever possible, it is generally a good idea to gift or transfer assets to children before your passing. However, there are many variables and issues that need to be discussed prior to gifting assets, including but not limited to both your and the children’s’ financial stability, health care needs and anticipated assistance.
What is title insurance?
Title insurance is a form of insurance that indemnifies a homeowner against loss suffered by reason of title being vested otherwise than as state, or because of defects in title, such as liens and encumbrances not set forth in the title policy, as well as undisclosed or unknown title defects existing at the time of settlement.
Suppose you purchase your dream house, and when you arrive with your moving van prepared to enjoy your new purchase, you find someone else in the house claiming to own it. What will you do? Or, suppose you are awakened early one morning by a construction crew preparing to bulldoze your entire font yard for a sewer line to be built on an easement claim to pass through your yard. What happens now? What If your enjoyment of the property is suddenly interrupted by receipt of a notice of past due property taxes, which must be paid immediately or the property will be sold for property taxes.
Title insurance is designed to prevent these problems from occurring and give you a source of protection if they do.
What services does an attorney provide in a real estate transaction?
The role of a seller’s attorney is to initially review and approve of the Contract of Sale, including terms and provisions set forth therein, upon consultation with the seller. The seller’s attorney facilitates the updating of a title search and survey, procurement of tax receipts and water bills, septic and/or well approvals, certificates of occupancy, satisfaction of mortgage, architectural certificate of compliance, boundary line agreements, or easements, as might be required during the course of a transaction.
The purchaser’s attorney also examines and reviews the Contract of Sale on behalf of the purchaser, and represents the purchaser in respect to acquiring good and marketable title to the property from the seller, and in facilitating the settlement process with the purchaser’s lender.
Do I get my deposit back if I cannot qualify for a mortgage?
Typically the purchaser is entitled to have the initial deposit returned, in the event that the purchaser does not qualify for a mortgage, providing the purchaser has in good faith and in accordance with the terms of the Contract of Sale made prudent application.