By JODI SOKOLOWSKI
Buffalo Law Journal

Most people will need a lawyer at least once in their life.

We talked to area lawyers who handle some of the most common legal concerns that anyone is likely to face - divorce and custody issues, settling an estate, completing a real estate transaction, and minor criminal matters or traffic infractions. They offered suggestions on where to start and how to proceed when one has legal needs in each area.

Divorce and custody issues

With the national divorce rate at about 43 percent of all marriages, courts have expanded programs to help couples and families in divorce and custody cases.

However, because every family is different, there is no "cookie-cutter approach," said Kristen Arcuri, a Watson Bennett Colligan Johnson & Schechter LLP partner.

If a couple does not have children, divorce is handled in state Supreme Court. If they have an amicable split and agree on distribution of assets, it's possible, but not advised, to divorce without an attorney.

Anyone can start a divorce proceeding by filing a summons with the Erie County clerk and serving the other partner, explained Denis Scinta, a Lipsitz Green Scime Cambria LLP partner.

If a couple has children, a divorce automatically goes to Family Court. Custody issues between non-married parents, and even between non-divorcing married couples, also goes through that court.

A 2-year-old 8th Judicial District initiative, Children Come First, requires that a married couple with children must first attend a parent settlement conference. The mediation makes parents sit together, sometimes with a law guardian representing the children, to consider what's best for the children in terms of custody and scheduling.

"Today, custody is resolved very quickly," Arcuri said.

When custody is satisfied in divorce cases, the next step is determining who gets what. While some think "down the middle" is the best way, clients need to make sure they're comparing assets "apples to apples," Arcuri said.

If parties are not "dragging their feet," for emotional or health-insurance reasons, a divorce should take no more than seven months to complete.

"It can be done much sooner if everyone's on the same page," Arcuri said.

Settling an estate

A funeral may help bring closure when a family is mourning a loved one, but the settling of the deceased's estate is just the beginning.

The first thing the surviving family members, usually the spouse and children, must do is determine whether there's a will or not, explained Phillip Brothman, a Harris Beach PLLC partner.

If there's a will, the person named as executor will handle the estate. If not, Surrogate's Court will name someone to be the administrator.

A will should clearly state the beneficiaries, but a Surrogate's Court judge will determine those in intestate proceedings, those for which a will does not exist.

Before the inheritors can receive their share, all assets must be collected and all bills must be paid.

Assets are usually converted to cash, especially in the case of stocks, which may not be easily divided into equal shares, as well as a house and its contents. A federal tax identification number is required in order to transfer assets into a designated checking account, Brothman notes.

After the family sorts through and divvies up the deceased's belongings, an estate-sale or removal company can be hired to clear the rest before the house is put up for sale.

If there aren't enough funds to pay the debts, a release letter should be sent to the creditors to try to settle the amount owed. The priority creditors are the funeral home and cemetary, the lawyer and the executor or administrator, who receives a commission by law.

Finally, an income-tax return will have to be filed before the estate can be formally or informally closed, Brothman said.

There are many preventative actions one can take in estate planning to reduce the burden on family members, said Catherine Wettlaufer, a Hiscock & Barclay LLP partner.

"You can't live your life preparing to die, but there are things you can do to make the transition smoother," she said.

Real estate transactions

Buying or selling real estate is the largest financial transaction in most people's lives, so it's critical that an attorney be involved, said Roger Ross, a Hurwitz & Fine PC partner.

He said a contract protects both parties, especially when one side has "a change of heart" in what can be a complicated process.

"It enforces your rights and makes sure your expectations are met," he said.

A real estate transaction involves many steps. First-time home buyers are advised to take a class before getting prequalified for a loan and looking for a house, usually with the help of a real estate agent.

"You may prequalify for a higher amount than you think you're qualified for, but that would require living closer to the edge," said Michael Piette, a Jaeckle Fleischmann & Mugel LLP partner. "Rely on your gut."

After getting a bid accepted, the buyer needs to begin the paperwork-heavy processs of getting a contract reviewed or prepared by an attorney, getting the home inspected and applying for a mortgage loan.

The seller is required to get the search and survey, title, tax receipts and mortgage payoff amounts to his or her attorney before a closing date is set.

Then the buyer must give the insurance binder to the lender and transfer utilities to the property. Finally, the buyer must bring settlement statements of the loan and a certified bank check of final amount to the closing.

The average deal takes about 60 days from contract date to closing. Ross said that's because the current "market has streamlined the process."

Crime and traffic offenses

While one never expects to be charged with a crime or get pulled over for a traffic violation, how you respond can mean the difference between a brief inconvenience or a lifetime of consequences.

"The most important thing is not being a jerk. Be polite and respectful," advises Harvey Siegel of the Law Office of Harvey F. Siegel. "It's always worse when you don't cooperate."

A conviction, especially in a post 9/11 world, can keep someone from getting a job, such as at an airport or bank, and obtaining public benefits, explained Glenn Murray, a Buffalo solo practitioner.

"Consider the direct consequences of jail and a fine penalty but the indirect consequences of loss of job and travel opportunities," he said.

For example, driving while impaired is a misdemeanor in the United States but can be the basis for denying entry into Canada or even renting a car. A petty drug offense may result in an education-loan denial.

Most people plead not guilty for a traffic violation in the suburbs, because most local municipalities offer a reduction to a parking ticket or a less serious charge if the motorist attends a driving-improvement program, Murray explained.

Because there is no plea bargaining or school option in the City of Buffalo, a non-guilty appearance may result in a greater penalty than if a guilty plea is mailed, he added.

If the violation is more serious or the motorist has a bad driving record, the conviction may trigger a suspension or revocation and a substantial insurance rate hike. That's when a lawyer is recommended, defense lawyers say.

"An attorney can evaluate if a conviction can be avoided. Or, if unavoidable, what sort of reduction is available, which may avoid a criminal record," Murray said.