Document Review To $12 An Hour

Job Description Classification:
Contract Legal Professionals
Compensation: $12.00 to $18.00 per hour

Entry level licensed attorneys needed for document review projects. Prior document review experience is now required. Great training opportunity! Please send your resume to [Click Here to Email Your Resumé].

Located in major markets throughout North America, Robert Half Legal is the premier provider of legal professionals on a full-time, project and temporary basis to law firms and corporate legal departments. We offer our candidates challenging assignments, competitive compensation and benefits, and skills-enhancement training. Robert Half Legal is better at finding you challenging new career opportunities because we come from the legal industry ourselves, with a majority of our staffing executives holding JDs or other legal credentials. Additionally, FORTUNE® magazine again ranked us #1 in our industry on the list of "World's Most Admired Companies" (FORTUNE, March 22, 2010). Call your local Robert Half Legal office at 1.800.870.8367 to discover more about this position.

The Irretrievable Breakdown Ground for Divorce

The Irretrievable Breakdown Ground for Divorce
By Joel R. Brandes, Bari Brandes Corbin and Evan B. Brandes


Domestic Relations Law §170 was amended to add “irretrievable breakdown” in subdivision 7 as a ”no-fault ground” for divorce. It provides that a husband or wife may be granted a judgment or divorce on the ground that: “(7) The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. No judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.”

In order to establish a cause of action and obtain a divorce under Domestic Relations Law §170 (7) the plaintiff must satisfy the residence requirements of Domestic Relations Law § 230, and, in addition, establish that: (1) the relationship between husband and wife is irretrievably broken; (2) for a period of at least six months; and (3) the plaintiff or defendant must state under oath that the relationship between husband and wife is irretrievably broken.

However, no judgment of divorce may be granted upon such a finding unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.

Where the parties to a contested action for a divorce have agreed that the divorce will be uncontested it has been the practice of New York courts to permit them to submit the matter to the court for determination upon affidavits and the required papers, or to hold an inquest on a fault ground. Where the papers were submitted, the court would reserve decision until the resolution of the ancillary issues. Where the court held an inquest, the court would grant a judgment of divorce, but hold the entry of the judgment in abeyance pending the resolution of the ancillary issues. The practice of granting the judgment and holding its entry into abeyance pending the resolution of the ancillary issues is not permitted under subdivision 7 which prohibits the granting of a judgment of divorce until all of the ancillary issues are resolved by the parties, or determined by the court and incorporated into the judgment of divorce. However, the court can still hear the testimony and reserve decision.

Irretrievable Breakdown Defined

The term “irretrievably broken” is not defined in the statute. Black's Law Dictionary states that “irretrievable breakdown of the marriage” is a ground for divorce that is based on incompatibility between marriage partners and that is used in many states as the sole ground of no-fault divorce. — Also termed irretrievable breakdown; irremediable breakdown of the marriage; irremediable breakdown. Cf. irreconcilable differences; incompatibility. However, it does not define the term which is different from “irreconcilable differences” which Black's Law Dictionary defines as “persistent and unresolvable disagreements between spouses, leading to the breakdown of the marriage. • These differences may be cited — without specifics — as grounds for no-fault divorce. At least 33 states have provided that irreconcilable differences are a basis for divorce. Cf. irretrievable breakdown of the marriage; incompatibility.”

An examination of the case law in other states which have adopted the “irretrievable breakdown” ground for divorce appear to indicate that a marriage has irretrievably broken down when the relationship is for all intents and
purposes ended. Where no guidelines are established as to what constitutes an irretrievable breakdown, courts consider each case individually, and the determination whether the marriage is broken must be based on an inquiry into all the surrounding facts and circumstances. In general, a marriage is irretrievably broken when, for whatever reason or cause and no matter whose fault, the marriage relationship is for all intents and purposes ended, when it is no longer viable, when the parties are unable, or refuse, to cohabit, or when it is beyond hope of reconciliation or repair. The principal question to be determined is whether the marriage is at an end and beyond reconciliation.

In some states irretrievable breakdown of a marriage may be sufficiently shown by both parties alleging the breakdown, or by one party seeking a divorce or dissolution on the ground of irretrievable breakdown, and the other seeking divorce or dissolution on a ground involving misconduct. In some states the decision that a marriage is irretrievably broken need not be based on any identifiable objective fact. It is sufficient that one or both parties subjectively decide that their marriage is over and there is no hope of reconciliation. Under one statute, where both parties by petition or otherwise have stated under oath or affirmation that the marriage is irretrievably broken, or one of the parties has so stated and the other has not denied it, the court, after considering the statement and holding a hearing on the matter must make a finding whether or not the marriage is irretrievably broken and enter an order of dissolution or dismissal accordingly.

The consensus appears to be that the term “irretrievable breakdown” means a breakdown of the marriage to the point that reconciliation is not possible or probable. For example, Alabama ‘s statute requires a finding that “further attempts at reconciliation are impractical or futile and not in the best interests of the parties or family. The Delaware statute requires a finding that reconciliation is improbable as proof that the marriage has irretrievably broken down. The Connecticut statute requires a period of separation “by reason of incompatibility” for a continuous period prior to the service of the complaint and that there is no reasonable prospect that they will be reconciled.” The Illinois statute requires a period of separation and a finding that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family. Kentucky laws provide that if one of the parties disputes that the marriage is irretrievably broken, the court must consider all relevant factors, including the prospect of reconciliation, and make a finding whether the marriage is irretrievably broken. The Wisconsin statute requires that the court find an irretrievable breakdown of the marriage with no possible chance at reconciliation.

The Uniform Marriage and Divorce Act § 305 (c) defines a finding of irretrievable breakdown as “a determination that there is no reasonable prospect of reconciliation.”

Some states couple the irretrievable ground with a period of separation of anywhere from sixty days to two years. For example Missouri law provides that if the defendant denies that the marriage is irretrievably broken, the plaintiff must prove one or more of what appear to be fault grounds, or that the parties have lived apart for 24 months. The Connecticut statute requires the parties to have lived apart by reason of incompatibility for a continuous period of at least the eighteen months.

Irretrievable breakdown has been adopted as a ground for divorce in the following 17 states: Alabama, Arizona , Colorado , Connecticut , Delaware , Florida , Georgia , Hawaii , Illinois , Indiana , Kentucky , Massachusetts , Minnesota, Missouri, Nebraska, Pennsylvania, and Wisconsin. However, none of the state laws define the term irretrievable breakdown.

Sufficiency of Proof and Defenses
It is clear from the statute that the court must find that the marriage is irretrievably broken as a predicate to the granting of a divorce. On its face Domestic Relations Law § 170(7) appears to allow the court to grant a judgment of divorce where one spouse states under oath that the relationship between husband and wife is irretrievably broken. This construction would eliminate any defenses to this ground. However, the authority in other jurisdictions which have adopted this ground for a divorce supports the conclusion that the defendant can raise the defense that the marriage is not irretrievably broken. Moreover, this construction does not eliminate the five year statute of limitations applicable to actions for a divorce. The Domestic Relations Law provides that no action for divorce may be maintained on a ground which arose more than five years before the date of the commencement of the action except where abandonment or separation pursuant to agreement or decree is the ground.
--------------------------------------------------------------------------------

However, in those states where irretrievable breakdown is a ground for divorce it has been held that the court presiding over an action for divorce on the ground of irretrievable breakdown has a duty to determine whether the marriage is, in fact, irretrievably broken.

Statute of Limitatons to Recover Stolen Culture Lengthened in California

Governor Arnold Schwarzenegger signed into law California Assembly Bill 2765. This law allows an owner of a stolen or fraudulently taken cultural object to file a lawsuit to recover the piece within six years of finding the object. This new law is significant for three reasons.

First, it doubles the time an aggrieved party can recover an object of "historical, interpretive,scientific, cultural, or artistic significance" that has been stolen or taken by fraud or duress

Second, the law enacts the "actual discovery" rule. That means that the six year clock only starts to run once the original owner actually discovers the wherabouts of the cultural object.

Third, the law is retrospective. The legislature specifically stated that the law "shall apply to all pending and future actions commenced on or before December 31, 2017, including any actions dismissed based on the expiration of statutes of limitation in effect prior to the date of enactment of this statute if the judgment in that action is not yet final or if the time for filing an appeal from a decision on that action has not
expired, provided that the action concerns a work of fine art that was taken within 100 years prior to the date of enactment of this statute." There is no doubt then that the new law may impact Marei Von Saher's effort to move forward on her claim to recover Lucas Cranach the Elder's diptych "Adam and Eve" from the Norton Simon Museum, originally looted by the Nazis.

Read the law at http://leginfo.ca.gov/pub/09-10/bill/asm/ab_2751-2800/ab_2765_bill_20100930_chaptered.html

Appellate Courts Can Look at Trial Evidence in Reviewing Denial of Motions for Severance

Generally, appellate courts cannot consider trial testimony in reviewing a decision denying a pretrial motion (People v Gonzalez, 55 NY2d 720 [1981]). An important exception to this rule is that appellate courts can look at the trial evidence in determining whether a motion for severance should have been granted (People v Lopez, 68 NY2d 683 [1986])

A recent example of how trial evidence can be considered by an appellate court reviewing the denial of a pre-trial motion for severance, is the decision of the Appellate Division, Fourth Department in People v Nixon (2010 NY Slip Op 06997 [4th Dept 10/01/2010]), in which the Court wrote

In support of his pretrial motion for severance, defendant contended that he and the codefendant had irreconcilable defenses because, according to defendant, the codefendant was in sole possession of the weapon, while the defense of the codefendant was that defendant possessed the weapon but placed it under the codefendant's passenger seat when the police stopped the vehicle. Defendant further contended that he would be prejudiced in the event that the codefendant's attorney was permitted to present evidence against him, thereby acting as a second prosecutor. Indeed, defendant was correct in that respect because the codefendant's "attorney took an aggressive adversarial stance against [defendant at trial], in effect becoming a second prosecutor" (People v Cardwell, 78 NY2d 996, 998). In support of his motion for a mistrial following the testimony of the codefendant at trial, defendant contended that the codefendant had testified that defendant stated that he could not be caught with a handgun because he was on parole, and we note in any event that both defendants in fact implicated each other at trial (cf. People v Watkins, 10 AD3d 665, 665-666, lv denied 3 NY3d 761). Consequently, we agree with defendant that " [t]he essence or core of the [*2]defenses [were] in conflict, such that the jury, in order to believe the core of one defense, must necessarily disbelieve the core of the other' " (People v Mahboubian, 74 NY2d 174, 184). In view thereof, along with the fact that "there [was] a significant danger, as both defenses [were] portrayed to the trial court [in the pretrial motion and the motion for a mistrial], that the conflict alone would lead the jury to infer defendant's guilt," severance was required (id.; see People v Kyser, 26 AD3d 839, 840). Although it appears from the record that the court did not address defendant's irreconcilable conflict contention in refusing to sever the trial or to grant a mistrial, that failure is of no moment because we deem the court to have implicitly denied the severance and mistrial motions on that ground (see generally People v Mason, 305 AD2d 979, lv denied 100 NY2d 563). Consequently, we reverse the judgment and grant a new trial. Inasmuch as the codefendant was acquitted at trial, defendant's severance motion is moot.

DNA Databank Fees

The Appellate Division, Fourth Department has repeatedly recognized that the statutes (see Executive Law § 995 [7]; Penal Law § 60.35 [1] [a] [v])creating the DNA databank fee did not provide for the imposing of such fees for offenses committed prior to the effective dates of those statutes. Furthermore, the Court has exercised its interest of justice jurisdiction to modify judgments to eliminate improperly imposed DNA fees even where counsel failed to timely object. (People v McCullen, 63 AD3d 1708 [4th Dept 2009]; People v Cooper, 2010 NY Slip Op 06973 [4th Dept 10/01/10]).

Thus, even where trial counsel did not object to the imposition of DNA fees, appellate counsel needs to check to insure that the DNA fees were properly imposed.

Concurrent Sentencing and Actus Reus

Penal Law limits the circumstances in which a court may impose consecutive sentences. Specifically, Penal Law § 70.25 [2] provides that concurrent sentences must be imposed “for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other” Thus, in part, sentences imposed for two or more offenses may not run consecutively where a single act constitutes one of the offenses and a material element of the other.

In People v Laureno (87 NY2d 640 [1996]) the Court of Appeals explained that

In determining whether concurrent sentences are required, ... the court must determine whether the actus reus element is, by definition, the same for both offenses (under the first prong of the statute), or if the actus reus for one offense is, by definition, a material element of the second offense (under the second prong). If it is neither, then the People have satisfied their obligation of showing that concurrent sentences are not required (citations omitted). If the statutory elements do overlap under either prong of the statute, the People may yet establish the legality of consecutive sentencing by showing that the “acts or omissions” committed by defendant were separate and distinct acts (citations omitted).

Thus, counsel should be alert to arguments that different counts actually involved a single actus reus. Such a claim was successful in People v Mitchell (2010 NY Slip Op 06926 [4th Dept 10/01/10]) in which the Court held that

The evidence at trial established only that defendant constructively possessed the firearms with respect to the criminal possession of a weapon counts of which he was convicted, and thus the People proved only a single actus reus (see People v Laureano, 87 NY2d 640, 643; People v Hunt, 52 AD3d 1312, lv denied 11 NY3d 737; People v Rogers, 111 AD2d 665, lv denied 66 NY2d 614, 617). Further, the actus reus of the counts of criminal possession of a weapon is a material element of the offense of unlawful wearing of a body vest (see generally Laureano, 87 NY2d at 643). Thus, that sentence must also run concurrently with the sentences imposed on the criminal possession of a weapon counts.

Catu Reversals Keep on Coming

In People v Catu (4 NY3d 242 [2005]) the Court of Appeals held that s“a defendant pleading guilty to a determinate sentence must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action” and decided that the trial court's failure to advise Mr. Catu of his obligation to serve a five-year term of postrelease supervision required reversal of his conviction. Further, the Court rejected a harmless error analysis in which courts seek to retrospectively determine whether the defendant would have declined to plead guilty had he known of the postrelease supervision.

Since this decision about 100 convictions have been reversed on Catu grounds. The two latest such reversal are the decisions of the Appellate, Division, Fourth Department in People v Rush, 2010 NY Slip Op 06911 [4th Dept 10/01/10]) and People v Pett, 2010 NY Slip Op 06826 [4th Dept 10/01/10]).

Thus, appellate attorneys may want to consider this issue when looking for issues to raise. Of course, it would be blog malpractice to suggest the possibility of urging reversal on Catu grounds without including a warning: attacking a plea as not knowing and intelligent may ultimately be harmful to your client, who might subequently receive a greater sentence (see).