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Sharon Stern Gerstman

Sharon Gerstman’s Answers

10 total

  • I wrote my will with software several years ago, Is it valid

    I wrote my will with software several years ago and notarized it. The state-palning lawyer didn't sign it. Is it valid? During that time I was single, but now I am married and I have kid. I would like to know is my will still valid? Is writing a...

    Sharon’s Answer

    You are asking several questions: First, is your will valid--- different jurisdictions have different rules regarding the number of witnesses required. For example, in New York there must be two witnesses. If you did not comply with the signing requirements in your state, then your will might be invalid. Second, does your will dispose of your estate in the manner you would wish? Here, the answer is probably not. Your life circumstances have changed, and your will needs to be updated. Third, if you don't change your will, can your spouse inherit anything when you die. This depends on your state's law, but most states allow a spouse to assert rights against the will.
    Fourth, should you right a will with software? You cannot do an adequate job for yourself using software alone. Most lawyers charge fairly nominal fees for the preparation of a will, and you should consult a lawyer. Don't be afraid to ask what the costs will be. Many lawyers have flat fees or discounted fees for fairly simple wills. You will then have the assurance it is to be done right. Good luck.

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  • I am sure it is not common but am I allowed for part of the mediation to ask my attorney to leave the room?

    In other words say there have been several rounds back and forth and the case has not settled. Am I allowed to say to the mediator I would like a word with with you without my attorney present. This is my third round of mediation. I know the me...

    Sharon’s Answer

    You are permitted to request this of the mediator, but it is possible that the mediator will want to confer with your attorney before deciding whether to talk to you. You do not state the reason you wish your attorney to not be present. If you are unhappy with your lawyer, there is a larger problem you should deal with before starting the mediation.

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  • Is there any recourse against what I feel it Mediator abuse?

    When I filed for and received a temporary change in our custody order because my partner threatened my life we were forced to go back to mediation. This time the mediator, which was the same mediator we had the first time, was noticeably irritated...

    Sharon’s Answer

    A mediator's role is to get the parties to agree. You note that "they stipped custody from me." Who is "they"? Was it your lawyer and the lawyer for your ex partner? A stipulation has to be on the consent of all parties, so either you consented, or your attorney consented on your behalf, or there is no stipulation. Something is missing from your story.

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  • What do I need to do to be emancipated?

    I'm sixteen years old and I live in Davenport Iowa. I want to be emancipated but am finding it difficult due to lack of information and a loss of what to do exactly. I do not live with my parents, and have not for almost two months. I am staying w...

    Sharon’s Answer

    Requirements for emancipation vary from state to state. Usually, it requires that you be totally self-supporting (it sounds as if you are not self-supporting, but are dependent on your aunt and uncle) or married or in the military service. I would not recommend that you marry solely to emancipate from your parents, as you would be trading a lot of problems for the ones you have now.

    If you are happy staying with your aunt and uncle, try to establish a more permanent arrangement with them. This arrangement need not be a formal guardianship, which may be costly and difficult because your parents would necessarily be parties to such a proceeding. In the event your parents try to regain your custody, you may be entitled to a court appointed attorney who would safeguard your interests.

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  • Can someone clarify this clause in a marital agreement- taxes and alimony

    "non taxable to wife and non deductible to husband with regards to alimony" - attrny said this is really a property settlement-then why did the maritial agreement say alimony

    Sharon’s Answer

    • Selected as best answer

    IRC Section 71 allows for private ordering. That is, even if it is alimony, the parties may designate that it is non-taxable to the recipient and non-deductible to the payor. I think your attorney was saying it is treated the same as a property settlement, even though the agreement calls it alimony. As to whether the phrase you quoted complies with Section 71's private ordering requirements, it would be necessary to see the whole agreement, but it sounds like that is what the parties are attempting to do.

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  • Am I liable if my wife had unreported income even though I did not know about it and we filed married, filing jointly?

    My wife and I are currently getting divorced. As part of the discovery process, it was found out that she had substantial unreported income during the time we were together. We filed our taxes as married, filing joint while we were together. I did...

    Sharon’s Answer

    There is a particular kind of "innocent spouse" relief for spouses who are divorced. Under this section, IRC 6015(c) and (d), you are permitted to "separate" your income, which would allocate any unreported income she earned to her. In the event that the IRS comes after you, you should immediately file your petition for this type of relief, which you will get, unless the IRS (they have the burden of proof, here) can show that you had actual knowledge of the income she earned and failed to report. The nice thing about this type of innocent spouse relief, especially for divorced taxpayers, is that you do not have to make the types of showing of equity and lack of knowledge that the more traditional type of innocent spouse relief requires.

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  • Divorcing and selling home. Who is responsible for taxes?

    I am letting him have all proceeds from the sell of the house. I'm financially independent and never wanted the house in the first place. He still lives there while it's on the market. Both of our names are on the mortgage. Can I request that he...

    Sharon’s Answer

    I answered your question, but I just noticed that you live in a community property state. That does complicate the case a little, as even if you are not titled on the property, you may still be considered an owner if the property is part of your community property. So, the answer is not quite as simple as I originally answered.

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  • Divorcing and selling home. Who is responsible for taxes?

    I am letting him have all proceeds from the sell of the house. I'm financially independent and never wanted the house in the first place. He still lives there while it's on the market. Both of our names are on the mortgage. Can I request that he...

    Sharon’s Answer

    I assume that you share title on the house. The easiest way to accomplish what you want to do is for you to transfer all of your title to the house as part of your divorce. You can do this by way of a "quit claim" deed. Once he is solely in title, he would be responsible for any capital gains taxes. Your transfer to him as part of the divorce is tax free. If you do not transfer the property to him, and you are still a co-owner when the house is sold, you are liable for your half of any capital gains tax; your divorce decree or agreement can provide that he reimburse you for that expense, but your divorce agreement that he pay the tax cannot bind the IRS.

    One caveat is that if there is a mortgage on the house, and if you are liable on the note and mortgage, your transfer of the property to him does not relieve you of any obligation on the mortgage. So you may need to do some things to protect yourself with respect to the mortgage.

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  • Will my opponent finally answer my complaint or file an appeal?

    This is a continuation of my last question. As noted by a lawyer responding to my last question the judge correctly declared a "fatal error" in the defense motion to dismiss my complaint & for summary judgement as they did not include a copy of my...

    Sharon’s Answer

    If you presented an order, which was signed by the judge, filed and served with notice of entry on the defendant, the time of the service begins two time periods. The first is the time in which to comply with the order. If the judge did not specify a time period for the answer, the CPLR requires an answer within 10 days; if the judge did specify a time period, then that time period would control. The defendant could seek an extension of whatever time period controls, but would have to supply notice to you of such an application. The other time period is the time in which to appeal. The defendant is entitled to appeal (or seek a reargument of) the judge's decision, and has 30 days from notice of entry to do so. A stay of the judge's order, pending an appeal, is not automatic, but in this type of motion would likely be granted. You should know if there is an appeal, because the notice of appeal is to be served upon you. If an appeal is taken, you must be diligent in responding to requests for settling the record on appeal, any briefs submitted by your opponent, or any motions made by your opponent to the appeals court. Failure to do so, may result in a default on the appeal.

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  • How long does a judge have to make a ruling?

    My civil trial involving a meretricious relationship concluded on May 17th and I have not yet received a ruling. Originally I was told to come back in an hr. for ruling on the 17th and then told they would call me back at a later date. I was then ...

    Sharon’s Answer

    Most states have rules as to how long a judge may take to issue a decision. For example, in New York, a judge has 60 days from the last submission. While there may be rules which are generally followed, if a judge takes longer than the allotted time, there really is no recourse which will force the judge to issue a ruling. All you may be doing in pursuing it is angering the judge, which will not be helpful to the ultimate relief you are seeking.

    My advice is to be patient. Summers are slow times for courts. In addition to judges' vacations, staff will likely have vacations, too, meaning that a written decision may take longer to be sent out. If you don't have a response by the 1st of September, try a gentle phone call to the judge's chambers, and ask when you might expect the decision.

    Good luck. Remember, patience is a virtue.

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