HomeColumnsJudge Joan ShkaneLegal Myths v. Reality

Legal Myths v. Reality

by Judge Joan Shkane

This is a continuing discussion of Legal Myths and Reality, because those that are informed are always the most successful.

MYTH: Any person responsible for paying child or spousal support to another can avoid said obligation by making sure he or she doesn’t have a job and income with which to pay.

REALITY: If this were true, no one would ever pay support and many children and adults would end up needing public assistance. For some, this would mean taxpayers could be responsible for supporting that person.

Child or spousal support is calculated by evaluating what one is able to earn, by looking at past earnings records and the expected income or wages that can be made within a person’s geographic area. Child or spousal support is not calculated by looking at what one is actually earning, along with assets.

For a lawyer representing a child or spouse, proving past earnings to show that there is no legitimate reason that a sum cannot be earned can be a long, expensive and tedious process. Currently, a well-known New York City attorney, who is also undergoing a very public divorce, has offered his services pro bono – that is, at no cost – to a famous and wealthy client. He is claiming that he is not making any money by representing this famous client.

The attorney’s soon-to-be ex-spouse is claiming that this is a blatant attempting by her husband to reduce his income in an effort to reduce his spousal support obligation. The attorney’s argument is unlikely to hold up in court unless the spouse’s lawyer fails to properly lay out the case before the court.

MYTH: Criminal law in New York State is static and therefore never change.

REALITY: Changes are being made to New York State criminal law as of January 1st, 2020. One of the changes involves requiring prosecutors to share information with defense attorneys. As important as some believe this may be in the interest of fair-play and the pursuit of justice, another more far-reaching area is also changing.

The issue of bail has been reviewed on and off for over 40 years. Many countries, especially in Europe, have liberalized pre-trial detentions which involve bail or a form of it. As of 2020, judges in NYS will no longer be able to lock up an accused defendant charged with minor crimes (misdemeanors) or non-violent major crimes (felonies) who cannot make bail. On the other hand, some prosecutors are concerned that this could put witnesses’ safety in jeopardy. Sometimes changes in the law can be risky, and the legal system will keep an eye on developments.

MYTH: Our law is never changing.

REALITY: New York State law is forever under review in order to address changes in science and society. Two good examples of this may, in fact, be going into effect. The first example deals with postings to social media.

One case, in particular, was brought to the attention of lawmakers’ which resulted in the need for a new law. The case involved a spurned boyfriend who posted naked pictures of his former girlfriend to social media. As if that weren’t enough, the plaintiff also sent the images to his former girlfriend’s employer and sister. She did not consent to any of these publications.

As of September 21st, 2019, cyber sexual abuse is considered a misdemeanor punishable by up to one year in jail and a fine. Forty-five other states already have such laws, but New York State has given added protection to the victim. He or she can now force a website to remove the images.

The second example of change is not yet legislation but is making its way through the system. If passed and signed by the Governor, the law will provide that a state or local elected official who admits to a major crime, one that violates his or her oath of office, will immediately lose his or her position. Any delay of the case in a federal or state court after the admission will not delay the loss of his or her job.

Giving attention to legal myths is not wrong. It can be a starting point for developing an interest in the law. If legal issues are important in your life, for instance regarding custody of your children or money payable for any reason, it is wise to consult a lawyer who can advise you on the truth of legal myths. This discussion is not intended to render legal advice on specific cases or to express an opinion on any specific case.


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