Disabled/Separation/Divorced/Adultery/Maintenance in NY > Legal ???

[pdb]

Both CP and NCP reside in NY

Will make this as brief as possible, however, don’t want to leave anything out...

My 42 year old brother - NCP (once the bread winner) for his 3 children and wife - CP, is now severely brain injured from an MVA in 2002 (3 wks coma & 2 mths intensive care hospitalized)

Was released into the care of his cheating wife, of 14 yrs, for 24/7 complete supervision and care. A wife who had been cheating w/ a married man well before the accident and continued to cheat while he was in the hospital and in her care. (have email exchanges as proof)

After caring for him for a little over 1 mth and learning that he would require another 3+ mths of 24 care, she went to an attny and had separation & bankruptcy papers drawn up entirely in her favor awarding everything to her and releasing her of all marital debt, along w/ $366 mthly CS & $300 mthly maintenance. CP also stated that she was unemployed, when actually, she was using vacation and other time up to care for NCP, but still on her employer’s books (earning min wage) and employed from 9/1999 – 6/2006.

The next day she took NCP to her attny to sign the papers telling him that this was the only way she could collect Medicaid, they would eventually get back together and she got him to agree that they couldn't afford 2 attnys and this was the best thing for the kids. (Coercion!) She immediately dropped NCP off at his parents following the signing.

NCP was admitted into a lock down brain injury rehab center from 4/2003 - 8/2005 and was finally released into his own apt with full time aides to visit his apt 24/7 and for transportation. He was on $850 mthly SSD (now $997) and his CP was successful in having it garnished for $366 mthly child support (now $406), in addition to receiving $500 total mthly for the 3 children in separate SSD Dependent benefits beginning 1/2003.

On 3/07, NCP’s mother, who is power of attny of him since 4/2003, petitioned CP into court to have the child support reduced and was successful bringing it down to $150 mthly ($50 per child based on poverty SSD income). At this time, the oldest daughter (15) was living w/ her father from 12/06 - 9/07, d/t terrible abuse issues b/t her and CP. Meanwhile, the CP continued to collect the $167 SSD Dep benefits along w/ child support for the daughter since she had custody. None of this money ever went to the daughter's care while living with NCP.

D/t the reduction of CS and the daughter being forced to go back and live w/ the CP on 9/07, the CP petitioned the NCP back to court (on 10/07) to obtain the back owed $300 mthly spousal maintenance payments backdated to 2/2003 in the separation papers.

First of all, is this legal?

NCP was permanently disabled (traumatic brain injured) and didn’t know what he was signing and still wouldn’t to this very day and was coerced by CP caretaker.

Isn’t this abuse on the CP caretaker’s part? Can we do anything about that?

Would those separation documents be overturned or void since he was mentally incapable and required 24/7 supervision and care at time of signing and not represented by an attny?

Also, CP lied about being unemployed during signing and since we have the email exchanges b/t the CP and her married boyfriend with proof that she was cheating, is she even eligible to have ever been awarded maintenance?

Lastly, CP is again withholding employment info by neglecting to complete this section of the petition she just filed in taking NCP back to court for spousal maintenance…can we prosecute for this? (we know CP was working full time at min wage right up until she took NCP back to court this last time)

Could use ANY and ALL help since the re-scheduled date for spousal maintenance is sch’d for 12/2/2007.

Much appreciated!

 

[LdiJ]

I hope that you are helping your brother with an attorney. This is a situation that has a reasonable shot at being fixed, but I don't think its something that should be attempted without an attorney.

 

[Gracie3787]

I agree, an attorney is a must have to fix the situation.

 

[pdb]

Thank you LdiJ and Gracie for taking the time to read this and comment!

We do have an attny, but d/t my retired parents and my limited financial resources, we have a pro-bono attny who specializes in SS and not family law...I fear that we don't have all the info we need.

CP is living with a wealthy man now since 6/2006 who's been divorced 3 times and has a good family law attny.

What do you feel it will take to overturn the original separation agreement that brain injured
NCP signed way back on 1/2003?

Also, can CP really go after this over 4.5 yrs later? Is there a statute of limitations?

Again, Many Thanks!

 

[LdiJ]

Thank you LdiJ and Gracie for taking the time to read this and comment!

We do have an attny, but d/t my retired parents and my limited financial resources, we have a pro-bono attny who specializes in SS and not family law...I fear that we don't have all the info we need.

CP is living with a wealthy man now since 6/2006 who's been divorced 3 times and has a good family law attny.

What do you feel it will take to overturn the original separation agreement that brain injured
NCP signed way back on 1/2003?

Also, can CP really go after this over 4.5 yrs later? Is there a statute of limitations?

Again, Many Thanks!

Yes, she really can go after it 4.5 years later. The arrearages have been building up this whole time.

Proving that he was incompetent at the time that the agreement was signed is what it will take.

 

[nextwife]

Yes, she really can go after it 4.5 years later. The arrearages have been building up this whole time.

Proving that he was incompetent at the time that the agreement was signed is what it will take.

I agree with that!

On 3/07, NCP’s mother, who is power of attny of him since 4/2003, petitioned CP into court to have the child support reduced and was successful bringing it down to $150 mthly ($50 per child based on poverty SSD income). At this time, the oldest daughter (15) was living w/ her father from 12/06 - 9/07, d/t terrible abuse issues b/t her and CP. Meanwhile, the CP continued to collect the $167 SSD Dep benefits along w/ child support for the daughter since she had custody. None of this money ever went to the daughter's care while living with NCP.

D/t the reduction of CS and the daughter being forced to go back and live w/ the CP on 9/07, the CP petitioned the NCP back to court (on 10/07) to obtain the back owed $300 mthly spousal maintenance payments backdated to 2/2003 in the separation papers.

First of all, is this legal?

NCP was permanently disabled (traumatic brain injured) and didn’t know what he was signing and still wouldn’t to this very day and was coerced by CP caretaker.

Isn’t this abuse on the CP caretaker’s part? Can we do anything about that?

Would those separation documents be overturned or void since he was mentally incapable and required 24/7 supervision and care at time of signing and not represented by an attny?

There is also a question about the PoA. Was there a guardianship? Was dad not even legally capable of acting on his own behalf? What sort of POA did his mom have?

And dad should be asking for spousal support. He was disabled during the marriage.

A good attorney should be able to show dad was clearly incompetent and the prior rulings reversed.

If there was already a guardianship granted giving NCP's mom the guardian capacity, then there dad never had the legal right to act on his own behalf at the time to begin with.

 

[pdb]

Thank you again for everyone's assistance...you're so very helpful!

NCP was released on 11/26/2002 from intensive care hospitalization with discharge agreement that CP would provide 24/7 supervision and care with a Discharge Dx. of "Functional Impairment and cognitive impairment due to traumatic brain injury."

The CP insisted on taking him when he was discharged (against his families wishes) and she took him to an attny w/o us knowing until NCP's mother rec'd the notices in the mail after CP dumped him off at NCP's mother's after the signing.

At time of discharge, he was on high doses of 7 mind altering medications daily (Effexor, Luvox, Zoloft, Dilantin, Trazadone, Symmetel(sp) and Amantadine), was on these for a few years and remains on some these still to this day.

The separation papers were signed on 1/16/2003.

NCP's mother retained an attorney on Jan 28, 2003 to dispute the separation papers, however, CP's attorney severely attacked NCP's mother's attny siding with his client (CP) and threatening that he was willing to go the long battle with NCP's mother's attny at a great cost.

NCP's mother began paying CP the $366 monthly CS beginning on 2/2003 and continued to pay it until it became garnished out of NCP's SSD.

NCP's mother became Durable General POA on 4/8/2003...which included "chattel & goods transactions / banking transactions / claims & litigation / making gifts to spouse, children & more remote descendents and parents, not to exceed in the aggregate $10k to each of such persons in any year."

NCP was constantly taking all of his temp employer disability benefits and sending them to CP, following her coaxing phone conversations with him, so NCP's mother became his POA. He was still in love with her and she was playing on his impairment and poor judgement.

He was admitted into a lock down Intensive rehab center in 4/2003 until 8/2005.

Documentation we have:

His permanent disability approval on 4/2003, was receiving temp disability from his employer until then.

His ER medical records & discharge notes. Do you feel we should get all of his progress notes from his 3 wk coma and 2 mth intensive care hospitalization before discharge even though this was 1.5 mths prior to the signing?

A letter from a physician during his outpt rehab he was receiving following his discharge dated 4/15/03 that states..."He has been under my treatment. D/T his head injury, he has demonstrated impaired judgement in regards to his financial and personal matters. He is in need of long term rehab svc's for his brain injury. He has only begun to receive this service at a specialized facility."

CP's employer HR dept states that she was employed with them from 9/1999 - 6/2006, should we subpoena these documents?

The email exchanges b/t CP and her married boyfriend & her friend during much of this which states a great deal (not sure how email may hold up when it comes to litigation, though?)

What else do you feel we will need?

Bless his heart...we have a wonderful young SS attorney willing to help us pro-bono.

My biggest fear is...are we making a mistake by going with an SS attny and not financing a family law attorney?

Does it really make a difference in what an attny specializes in, especially in this situation?

 

[LdiJ]

In my opinion, anything that you might think to ask if you need, is something that you should get. Its always better to have too much than too little. So get everything that you mentioned in the above post.

I can't tell you whether or not its a mistake to have a young, pro-bono attorney. Those can be the very attorneys who will work the hardest and go the extra mile for their clients....those can also be the most overworked, who will do the minimum necessary...sometimes because they are simply overwhelmed.

If you have any doubts about the attorney, get a consult with another one, or two, or three and get their take on the overall situation.

I disagree with Nextwife that your brother could have received alimony from his wife. Her employment history was/is minimum wage jobs. However I am equally certain that if it had gone in front of a judge that there is NO WAY that she would have been given alimony from him.

 

[nextwife]

In my opinion, anything that you might think to ask if you need, is something that you should get. Its always better to have too much than too little. So get everything that you mentioned in the above post.

I can't tell you whether or not its a mistake to have a young, pro-bono attorney. Those can be the very attorneys who will work the hardest and go the extra mile for their clients....those can also be the most overworked, who will do the minimum necessary...sometimes because they are simply overwhelmed.

If you have any doubts about the attorney, get a consult with another one, or two, or three and get their take on the overall situation.

I disagree with Nextwife that your brother could have received alimony from his wife. Her employment history was/is minimum wage jobs. However I am equally certain that if it had gone in front of a judge that there is NO WAY that she would have been given alimony from him.

Had he requested it, it would have likely been denied, but it would have made HER getting it less likely. The point is that he took care of her when he was well, and now that he nneeds her to do the same for him, she's unwilling to even try. Having been the child of a brain injured father whose mother had been a SAHM, I witnessed the "well" spouse jumping into the workforce when she needed to and taking over financial responsibility. That is how it SHOULD be when one spouse becomes ill - the other spouse steps up to the plate.

 

[pdb]

Curious...does it make a difference if it never went in front of a judge and it's uncertain whether he ever signed the divorce papers CP served while NCP was 300 miles away in a lock down intensive rehab?

Unfortunately, NCP doesn't recall whether he even signed the final divorce papers he was served, another part of the TBI...no memory.

I seem to recall CP going after the spousal support stated in the separation papers back around 4/03 - 11/03, but I believe it was either denied or it was dismissed...can't recall exactly since it's just been non-stop since NCP's injury.

Would this make a difference?

 

[pdb]

Nextwife...I'm sorry to hear of your father and also happy to hear that your mother was of good nature and did what she did. I hope your dad's doing well now.

 

[pdb]

Unfortunately, CP never worked a day in her life, until forced to when NCP lost his 10 yr business d/t poor economical times in 1999, but NCP quickly found a job and took awards in everything he did.

There was no reason for CP not to work since all 3 kids were in school all day beginning in 1996.

CP was just there for the money...she was very spoiled and NCP was the one the kids were closest to, since he did everything with them.

CP was caught with many men throughout their 14 yr marriage and was in an affair w/ a married man (her boss from the nursing home where she was responsible for laundry duty) for approx 1 yr before NCP's accident, during his hospitalization and following his discharge.

NCP & CP were high school sweethearts which he still hasn't gotten over...she still plays him...it's ashame!

Although NCP wasn't perfect, as nobody really is, he loved his family and wife and provided for them very well.

I realize this sounds biased coming from CP's sister...but it is, indeed, the facts and very painful for all who love him, to witness.

 

[LdiJ]

Had he requested it, it would have likely been denied, but it would have made HER getting it less likely. The point is that he took care of her when he was well, and now that he nneeds her to do the same for him, she's unwilling to even try. Having been the child of a brain injured father whose mother had been a SAHM, I witnessed the "well" spouse jumping into the workforce when she needed to and taking over financial responsibility. That is how it SHOULD be when one spouse becomes ill - the other spouse steps up to the plate.

I don't disagree with you at all...please don't think that I do. The wife in this case is a total witch. However I didn't want them to think that alimony from her was possible, so that they spinned their legal wheels on that issue. Their focus needs to be on getting that previous agreement vacated.

 

[pdb]

What I really want to know is... our chances here?

Is there any reason to believe that we'd lose this case?

CP worked at min wage from 9/1999 through 6/2006 at which time CP chose to leave her employment since she met a wealthy man that made it possible for her not to have to work and moved in with him.

Meanwhile, NCP was in an intensive lock-down brain injury rehab ctr from 4/2003 through 8/2005 and continues to be permanently disabled and on SSD.

We have a court date and any advice is MUCH appreciated!

Thank You!

 

[LdiJ]

What I really want to know is... our chances here?

Is there any reason to believe that we'd lose this case?

CP worked at min wage from 9/1999 through 6/2006 at which time CP chose to leave her employment since she met a wealthy man that made it possible for her not to have to work and moved in with him.

Meanwhile, NCP was in an intensive lock-down brain injury rehab ctr from 4/2003 through 8/2005 and continues to be permanently disabled and on SSD.

We have a court date and any advice is MUCH appreciated!

Thank You!

Yes, he might lose the case due to lack of good representation. If he has a good attorney, I think that his odds of winning are good.