Skip to main content
James J. Sexton
Avvo
Pro

James Sexton’s Answers

14 total


  • Do I have any legal rights living in my co-op owned by my mother

    I have been living in my co-op for 24 years paying all maintenance to the management company with my checks - it was originally when she didn't need it for tax purposes any longer, it would be put into my name and I would pay her back in increment...

    James’s Answer

    Unfortunately it would appear that you have limited rights and remedies available to you. It is possible that you might assert a claim under the concepts of equitable estoppel or unjust enrichment, claiming that you relied on the promise that she would convey to you an interest in the property in exchange for the payments you made. It is unlikely, however, that such a claim would be successful as contracts for the conveyance of real property are required to be in writing. You might attempt to argue that your payment of the various fees/expenses should be refunded to you but as you were given the right to live in that property for an extensive period of time it would be hard to argue you didn't get anything for your investment. Of course, this is just a preliminary view of things based on the limited facts you presented. You should speak to an attorney who focuses his or her practice in real property and/or elder law to see what your rights/remedies actually are.

    See question 
  • If a person is charger with assault in the 3rd degree and the person is still contacting them. can the case be thrown out.

    someone is charged with assault in the 3rd degree. The person that has been pressing the charger has been contact the the person she is charging.

    James’s Answer

    An attempt to contact an individual against whom you have a protective order does not, in and of itself, result in the "throwing out" of the underlying charges. It also does not, in and of itself, permit a modification of any order of protection - so it is important not to think "I can't call HER but it's okay to talk to her if SHE calls ME" when there is a restraint on communication in place. It is likely, however, that attempts to contact an individual against whom you are seeking an order of protection or restraint on communication could be used as a defense in such a proceeding - as tending to demonstrate that the individual seeking the restraint did not, in fact, wish to prevent contact.

    See question 
  • Does my husband have to return his son to mom as son is scared and dosent want to go back cps was called and order of protection

    cps called police report taken for domestic issue letter from therapist and clergy confirming childs fear of mother. child is 13 years old

    James’s Answer

    You have an obligation to encourage your child to participate in visitation and an obligation not to do or say anything to, or in the presence of your child, that might discourage him from visitation. You do not, however, necessarily have an obligation to drag a child, "kicking and screaming" to a scheduled period of visitation. The best and most conservative course of action is to bring an application to the Family Court seeking to modify the visitation schedule. In many cases the Court will appoint an attorney to speak to your son and represent his interests in Court in regard to these matters. It's a difficult situation to be in, as you do not, at this point, want to violate any court order or agreement related to custody/visitation, but you also do not want to do anything that could potentially endanger your child or injure your child's opinion of you (as his parent who is, ideally, there to protect him). Additionally you should note that the older a child gets the more his observations, opinions and preferences will be given weight by the Court (absent some factor that might demonstrate he has a diminished ability to make decisions or accurately asses the facts). In any circumstance, it sounds like you will require the services of an attorney who focuses his or her practice in family law. It is better to speak to a lawyer "sooner" rather than later.

    See question 
  • I separated from husband in 2008 & moved to Charlestown, MA from NY. How can I get divorce if we have no contact?

    We did not have any children from marriage but I do have a ten year old from previous. We parted in ill terms & I have no way of contacting this man as I do not know where he moved to after I left. How hard is it to get a divorce in the State of M...

    James’s Answer

    You may want to file for divorce in New York if he continues to reside there. You can usually find, online, information regarding the general whereabouts of an individual. If at some point the two of you resided as husband and wife in the State of New York, and the grounds for divorce arose in New York or one of you still resides in New York, you may be able to file a simple uncontested divorce there. Do a little digging and find out where he is living.

    See question 
  • Legal Fee for Separation Agreement

    For simple separation agreement without children and without major marital properties, how much is the estimated legal fee if hiring an attorney?

    James’s Answer

    • Selected as best answer

    It depends on the complexity of the Agreement. If you don't have any children or property of any significance it could be under $1,000. If you have children (and thus require custody and parenting time provisions as well as child support provisions) the cost will most likely be higher as you will need additional language in the agreement to address those issues. I jokingly tell clients that the "only thing more expensive than a GOOD Separation Agreement is a BAD one". It's dangerous to write your own or look for the lowest cost attorney to prepare one for you. There are certain requirements both for the content of such an agreements and execution of same that can not be left out without rendering the document invalid. With a document that important - it's not the time to try and save a few hundred dollars. Speak to an attorney who focuses his or her practice in Family Law and tell him or her that cost is an issue. Many attorneys, if they are simply working on the drafting of a Separation Agreement, and not a "courtroom battle" will even work on a payment plan with a potential client.

    See question 
  • My ex husb & I have joint legal custody. I live in Vt. and my son and ex live in NY. If my ex were to pass away, do I get cust

    My ex husb & I have joint legal custody. I live in Vt. and my son and ex live in NY. I visit with my son every other weekend. If my ex were to pass away, do I get full custody automatically? If the ex prepares a living will and wishes our son ...

    James’s Answer

    There is generally a presumption that a biological parent has preference in a custody determination when the custodial parent dies or is unable to continue to maintain custody. This presumption can, however, be overcome with a showing of special or extraordinary circumstances. I have seen cases in Family Court where a child having strong "roots" in a school system has been considered sufficient circumstances to vest custody in a stable grandparent over a stable parent (who lived out of state). The fact that you maintain a stable and meaningful relationship with your child which includes regular contact certainly adds to the likelihood that you would be given custody in such an unfortunate event. A statement by your ex advising that she would like custody to vest in you should she predecease you would certainly not hurt the situation and may, in fact, be helpful - but would not be dispositive of the issue. The Court can still consider the "best interests" of the child under the totality of circumstances. Your involvement in your child's life and regular contact with him is really the primary way to protect your parental rights.

    See question 
  • How much child support and back pay can my ex receive?

    My ex and I have been living apart for 7 years now. We have a 9 year old daughter together. She is now threatening to sue me for child support back pay. She never filed for Child Support before. I have been very active in my daughter's life and ha...

    James’s Answer

    The date of filing of her Petition is the most important issue when it comes to a "basic" support obligation and arrears. You should also consider, however, that the Court has some discretion when it comes to requiring you to contribute to certain child support related expenses (such as unreimbursed medical expenses) that were incurred prior to the date of filing of the Petition. The parenting time schedule you described sounds like you may have a true "shared" or "split" custody schedule (with each parent having roughly equal time) but, unfortunately, even that fact may not prevent you from having to pay child support to your ex.

    See question 
  • What is difference bet. a legal separation vs divorce. Will the things agreed upon in a legal separation be uphold in a divorce

    Married 15 yrs in NYS. 1 child. 1 house. husband cheated. will a legal separation b enough to preserve my assets and future earnings or do i need 2 divorce. He provides medical benfits from his job n I wanted to maintain this if possible since my...

    James’s Answer

    Typically when people refer to a "legal separation" they are not referring to an actual "action for separation" (as is provided for under the Domestic Relations Law) but instead they are referring to living separate and apart under the terms of a written separation agreement which codifies their respective rights and obligations related to all issues arising from the marriage. Obviously the most significant distinctions between two parties who are living separate and apart under the terms of such a comprehensive agreement and two parties who are divorced are: the divorced parties can remarry, file single (unmarried) tax returns and can NOT be covered under each others' health insurance. There are, of course, other changes to one's rights and obligations when a divorce is finalized, but those are the major three that people most commonly refer to or consider of primary importance. The decision to commence a formal divorce action or simply negotiate the terms of a separation agreement involves the interplay of a variety of factors and is something you should discuss with an attorney who focuses his or her practice in family law.

    See question 
  • I have sole legal/physical custody. Does my ex have to tell me where he lives?

    I have sole legal and physical custody of my children after an ugly custody battle. My ex just moved only mos after final judgement and did not tell me. My children told me. He has visitation - 1 day/week and every other weekend. I have asked ...

    James’s Answer

    In general you have the right, as the primary custodial parent, to remain reasonably informed of the whereabouts of your child. Knowing where your child is staying is certainly something that falls within that realm. The age of your children may also play into this as the younger a child is the more information each parent will be required to provide to his or her co-parent and the more cautious courts tend to be in setting reasonable restrictions in place (as it is presumed that a young child is less able to express when he or she is exposed to something harmful).

    See question 
  • Can I apply for sole custody of my son?

    My sons father and I split up almost 10 years ago and since then he has had very minimal contact or interest in my son. Since we've separated he has gone on to have 2 more children in which he is involved in there lives completely. We have gone to...

    James’s Answer

    The issue of custody is determined by a variety of factors but the underlying standard remains the "best interests" of the subject child. In this situation it would appear that your son's father has abdicated major decision making to you and, thus, a Court may be inclined to codify that into an Order without major argument or difficulty. The fact that your son has medical issues that may ultimately require important decisions to be made in a timely manner could actually add to your claim for sole custody as there is case law to support the idea that a "primary" decision making parent is important in cases where a child is young (and thus has many "major" decisions yet-to-be-made) or dealing with educational or medical issues that require important decisions.

    See question