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When to file a strategic counter-petition for divorce?

Normally, to start a divorce, one spouse would file a “Petition for Divorce” and serve it upon the other. When that happens, the responding spouse would typically file what is known as an “Answer” to that petition. In this answer, one would generally deny the allegations of the petition as a purely defensive measure.

However, sometimes it is beneficial for the responding spouse to go on the offensive by filing a “Counter-Petition for Divorce”. This counter-petition is often combined with the “Answer” and titled “Answer & Counter-Petition for Divorce”. It is basically a way of preserving your right to go forward with a divorce even if the spouse who filed the original petition later decides he or she no longer wants the divorce. In other words, if that spouse withdraws the original petition, your filed counter-petition can still serve as a legal basis for the court to go forward with the divorce.

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Another important reason for filing a counter-petition is if, in addition to simply dissolving the marriage, you are also seeking affirmative relief such as alimony or property division. Filing such a counter-petition is especially important if the relief you are seeking is different than what is stated in the original petition or is entirely omitted from that petition. Identifying those claims in your “Answer” will not preserve them if your spouse withdraws the original petition. Thus, under these circumstances it is best to include a counter-petition so that you may (i) make your own factual allegations, (ii) state your own reasons for divorce, and (iii) request your preferred relief from the court.

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As you surely have noticed above, JUSTLAW hosts a variety of well-experienced attorneys such as the author above. Thus, if you found this article to be beneficial and need legal advice pertaining to your individual legal needs, contact us and we will immediately set you up with an attorney.

DISCLAIMER: This blog content is for educational purposes only. It does not constitute legal advice. Do not act or fail to act based on this information alone. For actual legal advice, please speak to a lawyer in your jurisdiction about your specific fact situation.

Blog authored by:

Mayur Amin
Arlington, Texas
12/14/2020

Mr. Amin graduated from the University of Texas School of Law in 1994. He has over twenty years of civil litigation, trial, and appellate law experience. This experience includes having tried over fifty civil jury trials as first-chair and the filing of appeals with both the Supreme Court of Texas and the United States Supreme Court. Mr. Amin also has several years of work experience handling a variety of personal, business, and transactional law matters. Prior to law school, Mr. Amin was a certified public accountant and earned his Bachelor of Science with high distinction from Indiana University’s School of Business.

WHY IS IT EXTREMELY IMPORTANT TO HAVE A WILL, AT ANY AGE?

A will can simply be explained as a ‘desire, choice, willingness, wish etc.’ of a person. According to the Merriam Webster Dictionary, a ‘Will refers to a legal declaration of a person’s wishes regarding the disposal of his or her property or estate after death.1 Thus legally, a will is a declaration wherein a person expresses his/her desire or wish of how the disposition of his/her property or estate will take place after his/ her death.

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After death, the property or estate of that particular deceased person can be dealt with in one of two ways. The first circumstance occurs when the person had previously executed a will. Where there is a valid will, the property will be disposed of according to its terms. The second circumstance occurs when there is no valid will, and thus in such a situation the state laws will apply and disposition of the property will take place based on these state statutes. Therefore, a will plays a very important role because it is one of the sole means of disposing your estate or property to your immediate family without any recourse to legal strife (besides probate court, of course) which can not only be time consuming and expensive, but also mentally exhausting.

However, if you follow our long stream of legal articles on the Verdict, you are most likely an expert in wills. Thus, we don’t need to bore you experts any longer on the intricacies of wills. Instead, we feel that we need to put extra emphasis into the importance of having a will. There are many reasons that can explain why it is extremely important to have a will.

    1. One of the main aims of the will is to carry out the disposal of your estate as desired or intended by the testator. In absence of a will, the property comes under intestacy state statutes. In the event that occurs, there is no guarantee that your property will be divided as envisioned by the deceased testator.
    2. Second, a will allows the appointment of an executor. Since the role of the executor is crucial in winding up the affairs of the property and estate, it leaves the testator at liberty to appoint a person who may be honest and trustworthy. In addition, keep in mind the executor does not necessarily have to be a family member.
    3. Further, under a will, the testator is also permitted to disinherit any person since it is up to the testator to decide how to dispose of their estate. A will is not effective until the death of a person, therefore it is flexible to amend upon unforeseen circumstances occurring.2

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The importance of a will can not be undermined; therefore, the role of the lawyer in drafting a will becomes very significant. A lawyer will ensure that the will is in compliance with the applicable statutes. Additionally, the lawyer will supplement the will with other legal documents such as a power of attorney and advanced healthcare directives, etc. A will lawyer is well versed in the legal technicalities; therefore he/she acts as an important resource to advise and answer any queries of the client.3With the effects of the pandemic continuing to loom large on society, create a will from the comfort of your home using legal services available online.

 

The Concept of Guardianship and its Importance

Guardianship in ordinary discernment refers to a position capable of protecting or guarding. The Oxford learner dictionary defines guardianship as the state or position of being responsible for somebody or something.¹The concept of guardianship holds a very important position in law. It can be defined as a legal obligation imposed upon a person, to provide care for another who is unable to maintain his or her own affairs. The Guardianship is a legal relationship wherein a legal duty is created upon a person or an institution whose name is instituted in a will or by the order of the court, and is duty bound to take care of a minor child or an incompetent adult.

Guardianship can be classified into three types. The first type would include a friend or a family member of a ward. It includes a natural guardian. Further, the second type includes a public guardian wherein some government agencies may serve as a guardian. And lastly, there are professional guardians which include attorneys and other professionals. The professional guardian is appointed when the candidates from the first two categories are not willing to or unable to maintain the ward in question.

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An appointment of guardianship is restricted to the person who is incompetent to take care of their own affairs. A guardian may be appointed for a minor person below the age of 18 (as it is taken, they are unable to handle their affairs) and for people who due to some mental, physical disabilities etc. are unable to maintain themselves.

The eligibility for the appointment of guardian is highly influenced by the ‘best interest’ of the ward. The court may consider various factors such as education, health, trustworthiness and the relationship of the potential guardian vis-à-vis a prospective ward. Opinions of the ward can also be taken into consideration by the court. A guardian having conflicting interest in the guardianship cannot be appointed. The court also has the power to limit the role of the guardian either exclusively to the care of the person of the ward or exclusively to the assets and finances of the ward

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A guardian is responsible for handling the finances, property and personal care of a person incompetent to do so.²Apart from the active role of the court in the determination and overviewing the role and functions of the guardian, a good guardianship attorney also plays an important role in the matters of guardianship. His expertise involves advising which guardianship should be granted based on the circumstances, to help the clients with complex and technical paper work and also to represent a client (guardian) before the court of law after appointment under the guardianship laws. An attorney ensures that the hearing for guardianship is conducted correctly and is in compliance with the just principles of law. Therefore, do not go into a guardianship hearing blindly.

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The best way to account for guardianship is by addressing a guardian for your children in your estate planning documents. Take a second to view offers of various companies that provide unique legal services for a low price.

Estate Planning 101

Planning ahead of your death can be one of the most beneficial things you do for your family and friends. By creating a full and thorough estate plan, you have the ability to transfer your assets to your loved ones beyond death. An estate plan consists of a variety of documents and aspects that permit you to decide how to handle your property. The top attorneys over at JUSTLAWhelped us formulate a list of the top six things you must do in order to have an efficient estate plan.

 

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1. Execute a Last Will & Testament

This document is the cornerstone of your estate plan. There is no point in going through the rest of the steps, if you do not have a last will. It is a vital part of your estate plan. 

A last will handles all of your property after your death. In the document, you have the ability to bequeath, or transfer upon death, every piece of property you own to a specific person. Take this opportunity to give your house to your children, your car to your wife, and your precious art collection to your best friend.

The reason as to why creating a last will is so important is because it avoids intestacy. The laws of intestacy are put in place as default rules in the event you do not create a last will. Every state has their own set of laws on intestacy. These laws favor relatives and thus may not be in line with your wishes. Therefore, if you do not create an estate plan, then intestacy will not see through that your best friend receives your art collection.

 

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2. Execute a Living Will

Also referred to as an advance directive, a living will is a legal document that specifies the type of medical care you wish to receive in the event you become incapacitated and are unable to make those medical decisions yourself. In the document you can also express your wishes as to a variety of medical procedures including, but not limited to, cardiopulmonary resuscitation, mechanical ventilation (breathing tube), feeding tube, comfort care, dialysis, organ donation, etc. Do not let your family stress over what to do in this situation. Make your intent clear and fill out a living will for their benefit.

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3. Power of Attorney

Next, you should designate someone as your power of attorney. A power of attorney, or durable power of attorney, is a document that empowers someone to act on your behalf. Generally, an estate plan consists of two of these positions: Health care power of attorney and financial power of attorney. The health care power of attorney is addressed in the living will. However, in the event you are incapacitated, you can designate someone as your financial power of attorney, to take care of your finances.

4. Create a Living Trust

Otherwise known as an inter vivos trust, a living trust gives you the ability to name beneficiaries to your designated assets. The advantage of placing assets into a living trust over a will is that the trust avoids the lengthy and expensive probate process. A detailed description of other ways to avoid probate, beyond creating a living trust, are beyond the scope of this article, but there are some good, free resources available online. With this document in place, the named beneficiaries can immediately own and control the designated property upon your death.

 

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5. Protect your Digital Assets

Many folks spend significant amounts of time thinking about their personal property and how it would be handled in the event of their passing, but never give consideration to digital assets they’ve worked hard to create during their lives. The list goes on for the variety of ways that people use Instagram, Twitter, Tik Tok, blogs, and websites. These tools, when used correctly, can allow certain influencers to generate large online activity and, in many cases, significant revenue streams. State legislatures have gone a long way to helping folks protect these assets, as over 35 states have now adopted the Revised Uniform Fiduciary Access to Digital Access Act. Yet while the legislatures have offered citizens the tools to protect these assets, very few online entrepreneurs have done so using their will-based estate planning documents. Under a will you can protect these accounts by assigning a beneficiary to control each account. If you’ve worked hard to build your sphere of influence online or even if you’re just an average person who wants your family to hold onto your personal digital assets, you will most certainly want to consider protecting these digital assets as part of your estate.

For example, you have probably heard of the singer, Prince. He among many other famous celebrities, died without a will. His heirs have ensured that his crucial mistakeof not creating a will stays in headlines for years and years to come. To date, not one of his heirs have inherited any of his estimated $200 million dollar estate. That all started thanks to a petition filed over four years ago back in 2016, initiating the case of In re the Estate of Prince Rogers Nelson. As part of his enormous estate, some of the more valuable assets include his numerous emails, tweets, social media accounts and other digital assets all owned in his name. In fact, it is estimated that as a result of this four year battle over Prince’s estate, both sides have built up administration fees upwards of $45 million. That is almost 25% of the worth of the entire estate.

Clearly it is extremely beneficial to create a will. Do not send your family into years and years of ugly disputes over something so simple. Please, create a will. Not only for your sake but for your family’s sake as well.

 

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6. Guardianship

In some instances, both parents of a child pass away at young ages. As new parents, one of the first things you should do after the birth of your precious little one is complete guardianship forms as part of your estate planning. The forms ultimately designate people of your choosing who will become the child’s guardian. Stated more directly, the guardian you choose will care for your child until he/she reaches the age of eighteen, in the event you pass away while the child is still young. This is vital towards ensuring the safety of your child by placing them in the care of people you trust.

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This article was meant to provide you with a summary of some of the most important components of a comprehensive will-based estate plan. It’s clearly not a substitute for a good attorney, and shouldn’t be viewed as legal advice. Hopefully, this information helps you create a thorough estate plan. Remember to always keep it current by updating your beneficiaries and any newly acquired assets. In addition, talk to your loved ones about your estate plan. And finally, remember that affordable attorneys are available online to help you through it.The law was meant to protect you, so do your part to make that true.

What has the pandemic taught us about estate planning?

As we endure the effects of the COVID-19 pandemic on our society, we are presented with a great time to take stock in our blessings and simultaneously plan for a better future. And what better way to do that, then work on your estate planning. If you do not have an estate plan, state law will determine who receives your property, which may not necessarily be the individuals to whom you wish to receive it. Even if you do have an estate plan, now is a perfect time to revisit and revise your plans. But in the meantime, it may be wise to consider the future beyond your lifetime.

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How can you plan for the future? Consider drafting an estate plan. Here are some consideration on doing so:

1. What is Estate Planning?
Before diving into the reasons why estate planning is so important amidst a pandemic, you must have a thorough understanding of it.

Everyone has an estate whether you realize it or not. An estate can consist of a house, a car, or even your record collection. It could also include your investments, checking and savings account, life insurance, furniture, and all your personal possessions. Unfortunately you can’t take your record collection with you when you pass away, so you’ll need to plan how it will be used beyond your lifetime.

That is where estate planning comes in. When we talk about basic estate planning documents, these documents include the client’s last will and testament and a revocable trust agreement, and these are the documents that memorialize how your property will pass in the event of your death. These documents essentially take you out of the state-mandated “probate” process. In addition to these documents, a basic estate plan will also include a durable power of attorney, a living will, a designation of healthcare surrogate, and a designation of a pre-need guardian. While a detailed explanation of each of these documents is beyond the scope of this article, we will be reviewing each document in future releases on The Verdict, so definitely stay tuned for more there.

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That’s an earful, to be sure. So let’s go back to your record collection to make sense of it all. While living, you need to decide who’ll receive the records and when they will receive it, and even how they can be played (only on YOUR favorite record player). And you need to do that for all your possessions. That is essentially estate planning in a nutshell.

2. When Should You Start to Prepare an Estate Plan?
The answer to the question above is very simple: as soon as possible! What are you waiting for? Plan ahead. You are never too young or too old to create an estate plan. Do it. Not for you, but for your family.

3. Understanding the Components that are Placed in an Estate Plan
There are two common misconceptions surrounding estate planning: (1) that it just involves gifting your property and (2) that it is only something the super-rich need to do. However, an estate plan goes far beyond just who receives your property. In fact, it includes a plethora of factors that you may have never thought would be included.

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a. Your children
As stated above, you are never too young to create an estate plan. Life has countless bumps along the way and thus you can never be prepared enough to embrace them. Therefore, your estate plan should include a provision on the guardianship of your minor children. This provision will set forth how you envision your minor children will be taken care of in the unlikely event of your death.

b. Financial planning
Someone will have to oversee your finances. You will want someone who you could put your full trust into, to ensure that your money is handled correctly.

c. Decision-making in the Case of Incapacity
Yes, your will could even include how you want your life to be handled in case you become severely ill. Do you want life saving treatments? Answer that question in your plan so that your family knows your wishes.

d. A Dispute Arises
Watch the movie, Knives Out, and you will immediately run to your will to include this provision on what to do if your heirs fight over your possessions. Including this provision will hopefully save your family from a huge fight that could potentially render familial relationships damaged, forever. This provision will establish that in the event of a dispute or disagreement among family members, you wish for them to send the dispute to arbitration, among other alternatives. Include it. Providing peace of mind for your family after your passing is of deep concern to most.

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4. Grasping State Law and its effects on Estate Planning
State law will have a profound effect on your estate planning. How so? It has the power to usurp your decision as to who will receive your possessions beyond your life. One example is that the state will decide who your possessions will go to, if you do not have a plan set forth. Stated more directly, if you have no children but do have an unmarried domestic partner, your estate would pass to your parents upon your death, not your partner. That could potentially create many issues for you that could be avoided, simply by creating an estate plan.

5. Take Advantage of What you Can Control
Our final lesson and takeaway from this article is to always take advantage of all opportunities you are presented with. Most importantly, take advantage of the easiest ones to control. For example, ensure that your beneficiary forms with your bank are filed and up to date. You should immediately amend them as well when you want to change your beneficiary. Remember, this also applies to insurance policies and even retirement accounts. There is no reason why you cannot have this done. It is easy, simple, and will save your beneficiaries a whole lot of trouble when you pass away.

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While we’d love to invite you to stop by one of our Peace of Mind centers, our physical openings have been delayed due to the pandemic. But you can still schedule a time to speak with one of our licensed will and estate attorneys by phone, video or chat for just $9. To do so, simply click here.

How a spouse’s bankruptcy impacts other lawsuits?

What happens the moment bankruptcy is filed? 

Mayur Amin, J.D.

Unless exempted by law, the filing of a bankruptcy petition will impose an automatic stay on any legal action against a debtor and his/her property. For purposes of this article, we will assume that the “debtor” filing for bankruptcy is going to be your spouse or ex-spouse. What this really means is that when a debtor files for bankruptcy, it has the potential to stay or stop family law proceedings; irrespective of whether a divorce decree has been signed. 

When and if the bankruptcy stay applies, there are at least three things that one should understand about it. First, the stay abates any pending divorce proceeding until the stay is lifted or modified. Second, the stay deprives the divorce court of personal jurisdiction over the debtor and his or her property. And third, as of the time of the stay, all of the debtor’s property essentially comes under the control of the bankruptcy court and its trustee. In other words, the divorce court will no longer have jurisdiction over the debtor’s property until the bankruptcy stay is lifted or modified

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What types of family law proceedings are affected by the bankruptcy’s automatic stay?

Typically, two types of family law proceedings are potentially impacted by a bankruptcy stay.

  1. The first is a proceeding to divide a couple’s marital property. A bankruptcy stay of this type of proceeding is often only temporary. This is because bankruptcy courts usually modify the stay to allow family law judges to go forward with the business of dividing the couple’s property.
  2.  The second is a proceeding to collect domestic support obligations from a debtor who files a Chapter 13 bankruptcy. So, for example, if you are trying to collect alimony or child support from a spouse or ex-spouse who filed this type of bankruptcy, you will need the bankruptcy judge’s permission before going forward. This is because, under a Chapter 13 repayment plan, all the debtor’s post-petition assets become property of the bankruptcy estate. Under this scenario, the stay can last three to five years depending on the repayment plan approved by the bankruptcy court.

There are eleven types of family law proceedings exempted from a bankruptcy’s automatic stay.

If you are concerned about your spouse’s or ex-spouse’s bankruptcy throwing a monkey wrench in your divorce case, the good news is that eleven out of thirteen family law type proceedings discussed here are actually exempt from the bankruptcy’s automatic stay. A family law proceeding or action is exempted from the stay if it is:

  1. to determine paternity;
  2. to obtain or modify alimony or child support;
  3. to seek custody or visitation orders;
  4. to request dissolution of the marriage;
  5. to prevent domestic violence;
  6. to collect child support or alimony from a debtor who files a Chapter 7 liquidation type bankruptcy;
  7. to seek a wage garnishment order for the purpose of collecting domestic support obligations;
  8. to suspend professional, occupational, recreational or driver’s licenses for the purpose of enforcing domestic support obligations;
  9. to communicate past due support obligations to a consumer reporting agency;
  10. to permit the IRS to intercept a debtor’s tax refund to pay for past due support; and
  11. to enforce medical obligations in the form of support

DISCLAIMER: This blog content is for educational purposes only. It does not constitute legal advice. Do not act or fail to act based on this information alone. For actual legal advice, please speak to a lawyer in your jurisdiction about your specific fact situation.

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As you surely have noticed above, JUSTLAWhosts a variety of well-experienced attorneys such as the author above. Thus, if you found this article to be beneficial and need legal advice pertaining to your individual legal needs, contact us and we will immediately set you up with an attorney.

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JUSTLAW Attorney Bio

MAYUR AMIN

Mr. Amin graduated from the University of Texas School of Law in 1994. He has over twenty years of civil litigation, trial, and appellate law experience. This experience includes having tried over fifty civil jury trials as first-chair and the filing of appeals with both the Supreme Court of Texas and the United States Supreme Court. Mr. Amin also has several years of work experience handling a variety of personal, business, and transactional law matters. Prior to law school, Mr. Amin was a certified public accountant and earned his Bachelor of Science with high distinction from Indiana University’s School of Business.

Want to speak with Mayur? We’re happy to arrange a consultation.

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The Basics of Maternity Leave

There comes a time in everyone’s lives, where they want to start a family. But how do mothers manage childbirth and caring for a newborn, along with their job? Shouldn’t mothers be nervous that they may get terminated from their position because they have to take a couple weeks off to care for their child? Well, JUSTLAW is here to tell you that you do not have to be nervous! That is because of the simple fact that New York law provides all mothers with maternity leave.

What is Maternity Leave?

Maternity leave refers to the period of time in which a mother may take off from work in order to care for their newly born child. In particular, legal protection is afforded to a mother right before they give birth and for a period of time after they give birth.

On another note, it is important to understand that based on federal and state laws, fathers can receive paternity leave for a newly born child as well. In addition, both parents are afforded family leave in the case of an adoption. However, for the purposes of this article, we will solely inform you on maternity leave.

How many weeks of maternity leave are mothers afforded under NY Law?

First and foremost, this article is under the assumption that your employer does not offer any maternity leave. However, if they do, that does not mean you are locked out of the leave provided to you under New York law. You most likely can receive both because your employer cannot interfere with your rights under NY law. Therefore, if you are unsure if your employer offers maternity leave, either check your benefits package or talk to your employer.

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Now time to answer the million dollar question. The answer is 10 weeks in 2020 and 12 weeks in 2021. Under a recently created program called New York Paid Family Leave (“NYPFL”), you are entitled to legal protections for the designated amount of time above.

The NYPFL works as an insurance benefit. By triggering a qualifying event, the birth of your child, you can apply for leave through your employer’s NYPFL insurance carrier. Once you are approved, you will receive your benefits through the insurance carrier.

Can you still get paid? And if so, how much?


If the amount of time you may go on leave is the million dollar question, this is the billion dollar question. In 2020, you are entitled to 60 percent of a worker’s average weekly wage. In 2021, this will increase to 67 percent as the NYPFL phases in.

The average weekly wage is annually determined. It is based on the average wage a worker receives in New York. It is currently set at $1,401.17, therefore it is capped at $840.70 (60%). Unfortunately, if you are receiving a high salary where you may make more than $1,401.17 a week, it will have no effect on your weekly benefits under the program. Your weekly benefit will be capped at 60%. However, if you make less than the average weekly wage of all New Yorkers, your weekly benefits will be calculated based on your salary.

When can you begin maternity leave?

The unfortunate answer to this question is that you cannot take maternity leave when you are pregnant. The benefits only start to flow once your child is born.  Despite that, that does not mean that you have to take your 10-12 weeks of maternity leave right after your baby is born. You can receive those benefits and simultaneously take off from work for any 10-12 week period in the first 12 months of your child’s birth.

Can your spouse or partner receive leave as well?

Yes, most certainly! Both parents are entitled to parental leave. In fact, many parents strategically take their leave so that once the first parent’s leave is up, the other parent can use their leave to take care of the newborn.

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Maternity leave, and even paternity leave, are some of the most important laws that New York offers its citizens. Caring for a newborn should be encouraged as families raise their children and build bonds forever. We hope that if you run into any issues in securing maternity leave or just want any legal advice for it, that you come to JUSTLAW for it.