How Does Gambling Debts Affect My Divorce

Many divorces are caused by one spouse’s alcoholism or gambling addiction. The Courts recognize that alcoholism and gambling addictions are diseases. However, in many of those divorces, the spouse’s addiction has caused the parties to suffer severe debts or financial strain. This article will focus on how a spouse’s gambling addiction can affect your divorce.

When considering gambling, if your spouse’s gambling was only done infrequently or only resulted in small amount of losses, then the court may not consider that in its decision. Generally, a court will only consider a spouse’s gambling when it resulted in large spending and/or large losses.

It is important to note, that the general rule is that marital assets are typically divided evenly and that marital debts are divided 50% to each party. Yet, if one spouse was gambling the party’s funds, the court may consider that in dividing the party’s debts or their assets. If the court believes that one spouse wasted marital assets or marital funds with their gambling addiction, then the court may grant you a larger share of the marital assets or decide that you have to pay a lesser share of the marital debt.

However, the court may also consider that you encouraged or condoned your spouse’s gambling habit. You may have gone with your spouse to the casino etc. In those situations, the court may not sympathize with your situation and decide that you only get 50% or the assets and/or still have to pay 50% of the debts.

If your spouse was engaged in gambling, then you will have to demonstrate to the court the extent of your spouse’s gambling habit and also that you did not approve of the gambling. You can show that your spouse took large withdrawals at a casino or that they charged large amounts on a credit card at a casino. If your spouse’s gambling habit was at a different venue, you can show the spending at that venue. In addition, to show that you didn’t approve of the gambling, you can produce emails or text messages.

If you are considering getting divorced, and your spouse’s gambling addiction is one of the causes of the divorce, then you need an attorney who can protect you. Visit us on Facebook to get important legal news, tips, and articles: www.facebook.com/BadanesLawOffice.

What to Do if Your Ex Doesn’t Have Life Insurance

In most divorce agreements, your ex-spouse may have to maintain a certain amount of life insurance. The purpose of life insurance is to provide money for child support or spousal maintenance (alimony) in case the ex-spouse dies. However, what should you do if your ex-spouse doesn’t maintain his/her life insurance policy?

First, you have to make sure that your ex is required to maintain life insurance as part of the divorce. In order for you to obligate your ex-spouse to maintain life insurance, the divorce agreement and/or the Judgment of Divorce must explicitly state: (1) that your ex-spouse has to maintain life insurance; (2) the amount of the life insurance benefit; (3) who the beneficiaries of the life insurance are: and (4) the remedy if your ex-spouse does not maintain life insurance.

Second, once it is clear that your ex-spouse has to maintain life insurance, you most likely will need to notify your ex-spouse that they are in violation (breach) of the divorce agreement and that they are to obtain a life insurance plan. Your notification letter should be very specific as to what your ex-spouse has to do. You may want to hire an attorney to write the notification letter.

Third, if, after sending your notification letter, your ex-spouse still fails to obtain life insurance, then, you may need to file a Motion with the Court, so that the Court can force your ex-spouse to obtain life insurance. The Court will determine if your ex-spouse is in violation of the divorce agreement and can force your ex-spouse to obtain life insurance or declare your ex-spouse in contempt of the divorce agreement (which may have more serious consequences, including incarceration).

David Badanes, Esq. and the Badanes Law Office, P.C. has helped numerous individuals with their divorces and in making sure that the ex-spouse is required to maintain a life insurance policy. Visit us on Facebook to get important legal news, tips, and articles: www.facebook.com/BadanesLawOffice.

If We Are Separated Or Divorced, Can I Open My Spouse’s Mail?

If you open mail addressed only to your spouse or to your ex-spouse, your actions could have serious consequences.  Under the law, tampering with, hiding or opening mail addressed to someone else, even if to your spouse or ex-spouse, is a Federal crime.  

There are two exceptions.  You may open mail addressed to your spouse or ex-spouse when: 

  • You are given explicit authority by your spouse or ex-spouse; or
  • The letter or mail is also addressed to you.

Even if you do not face criminal charges or are not prosecuted, your spouse or ex-spouse could still start a civil suit which could lead to monetary damages.

In addition to being a crime or opening yourself to a civil suit, if a court finds out that you have been opening the mail of your spouse or ex-spouse, this could have serious consequences on the divorce.

Therefore, if you are in the process of getting a divorce, or you are already divorced, you should never open your spouse’s or your ex-spouse’s mail.

If you are seeking a divorce, or have been served with divorce papers, please contact David Badanes.  David Badanes has offices in Suffolk County and Nassau County. To make an appointment or to learn more, contact David Badanes and the Badanes Law Office, P.C. today at 631-239-1702, email at david@dbnylaw.com or visit us on Facebook to get important legal news, tips and articles: www.facebook.com/BadanesLawOffice.  

By David P. Badanes, Esq. and Hayley Hayden

Can I Cash Out My 401K (or other retirement assets) Before the Divorce is Final?

In almost every case, you cannot cash out your 401K or other retirement type assets before your divorce is final. In New York, once a divorce case is filed, neither party can withdraw (or cash out) any monies from a 401K, IRA or any other type of pension/retirement account.

The only exception to this rule, would be: (1) if the Court gave you an explicit order allowing you to do this; or (2) if both parties agree, in writing, to allow you to do this.

By the way, this rule applies whether or not you believe the 401K is “your” money or that it existed before the marriage. The rule is a blanket rule and does not make any exceptions as to whether or not the 401K is considered a marital asset or is your separate asset.

If your money is tied up in a 401K or pension/retirement asset and you want access to it, you should consult with your attorney on how you may be able to cash it out or to borrow from it.

If you have a 401K, IRA, pension or retirement asset and you are considering getting a divorce, then contact David Badanes, Esq. and the Badanes Law Office, P.C. David Badanes provides real-world advice and has helped countless clients in their divorce and can help you as well.

Please like us on Facebook to get important legal news, tips and articles: www.facebook.com/BadanesLawOffice.

Google Maps and Your Divorce

You probably have used Google Maps or some other Internet Mapping Program to help you find an address or to give you directions. However, until recently, a New York Court did not have to automatically allow you to introduce into evidence Google Maps or any other Internet Mapping Program.

However, as of December 28, 2018, a New York Court can take judicial notice, subject to a rebuttable presumption, that Google Maps etc. is valid and can be entered into evidence.

Why is this important? and What does it mean?

In a divorce, sometimes the distance between the parties’ residence can be important, especially when it comes to child custody cases. If one parent lives far away from the child, then this can be an issue as it pertains to custody and parenting time. To establish distance or directions, your attorney may have to use Google Maps.

Prior to the new law, if someone wanted to use Google Maps etc., they had to prove to the Court that it was a valid map. This would take time and, in some instances the Court would reject the Google Map.

Now, the Court can take judicial notice, this means that the Judge should allow the Google Maps etc. to be admitted into evidence. There is a safeguard, as the other side can still object to the Google Map, but, that side has the burden of proof to show that the Google Map is invalid or does not fairly and accurately portray what is being offered to prove.

There are always changes in the law, David Badanes, Esq. and the Badanes Law Office, P.C. keeps up with these changes and makes sure that they are used to help their clients. Please like us on Facebook to get important legal news, tips and articles: www.facebook.com/BadanesLawOffice.

Can You Date Before The Divorce is Final?

Unless there is a specific Court Order stating that you cannot date before your divorce is final, you can date someone while the divorce is pending and before your divorce is final.

Although you are typically allowed to date, most Judges do not want you to have your new paramour introduced to any of the parties’ children. This means that you should not have dinner with your children and your new boyfriend/girlfriend. In general terms, you should not be spending time with your new boyfriend or girlfriend and with your children.

Furthermore, you should not be spending marital assets on the new boyfriend/girlfriend. This means that if you still have a joint bank account with your spouse, you should not be withdrawing monies from that account and then spending it on your new boyfriend/girlfriend.

You should also refrain from taking your new boyfriend/girlfriend on any vacations or on spending any exorbitant amount of monies on the new paramour.

If you need legal advice and are seeking an attorney, David Badanes and the Badanes Law Office, P.C. David Badanes and the Badanes Law Office’s phone number is 631-239-1702, email at david@dbnylaw.com or visit us on Facebook to get important legal news, tips and articles: www.facebook.com/BadanesLawOffice.

Am I Responsible for the Debt My Spouse Had Prior to Our Marriage?

If you are going through a divorce, you might be wondering if you are responsible for the debt that your spouse had prior to your marriage? Typically, the answer is that you are not responsible for any pre-marital debt that your spouse had.

Any debt prior to a marriage is not considered as part of the “marital debt” and therefore is not your responsibility. However, in order to escape any reliability that such debt is not your debt, you need to show documentation which shows that the debt existed prior to the marriage. Furthermore, if the debt was a credit card debt, then you have to show that you did not add to that credit card debt after the marriage. If you did use that credit card or added to that credit card debt, then it might be difficult to show which debt is pre-marital and which credit card debt is post-marriage.

In many cases, one party may have had student loan debt prior to the marriage, in almost all cases, you will not be responsible for your spouse’s student loan debt that was incurred prior to the marriage.

Similarly, if your spouse had personal loans or automobile loans that existed prior to the marriage, and that still exist after the marriage, you should not be responsible for that debt.

Although, it is a good idea to have a pre-nuptial agreement that discusses each parties’ debt, it is not necessary to avoid paying for your spouse’s pre-marital debt.

In a divorce, there are many questions about debts and assets that will need to be answered. David Badanes, Esq. and the Badanes Law Office, P.C. can answer those questions for you. If you are seeking an attorney to represent you in your divorce, then contact David Badanes and the Badanes Law Office. If you live in Suffolk County or Nassau County, contact David Badanes and the Badanes Law Office, P.C. today at 631-239-1702, email at david@dbnylaw.com or visit us on Facebook to get important legal news, tips and articles: www.facebook.com/BadanesLawOffice.

Adultery and Your Divorce (Adultery is Still A Crime in New York State)

New York is now a “no-fault” divorce State. This means, that you do not have to demonstrate fault in order to get divorced. This also means, that in a divorce, the Court is not concerned with why you are getting divorced, they are only concerned with the issues of the divorce (e.g., child custody, child support, spousal maintenance, distribution of assets, etc.).

However, some clients want the Court to find that their spouse committed adultery and want to punish their spouse for their actions. Although you can still add adultery as one of the reasons why you want to get divorced (called a “cause of action”), virtually every Judge will want to handle the divorce without deciding adultery. It is extremely difficult to prove your spouse committed adultery. Adding adultery as a cause of action will increase the time to get divorced and also add the amount of money you need to spend to get divorced. Accordingly, it is extremely rare to add adultery as one of the reasons why you are seeking a divorce.

Yet, despite the fact that the divorce court will not consider adultery as one of the reasons why you are getting a divorce, adultery is still a crime in New York State. Adultery is classified as a Class B misdemeanor. This means that technically you could go to jail for up to 90 days and pay a fine.

However, it is extremely rare for anyone to be arrested just for adultery. Indeed, since 1972, only 13 persons have been charged with adultery. Of those 13 persons, only five actually were convicted of the crime. In virtually every one of those cases, there was some other crime that was committed and the prosecuting attorney added adultery as just one of many crimes committed.

Therefore, although adultery is still technically a crime, there is extremely little chance that you will be prosecuted for the crime. Furthermore, in a divorce, whether or not you or your spouse committed adultery will not be the basis of your divorce.

If you live in Long Island and need an attorney, then call David Badanes and the Badanes Law Office at 631-239-1702, email at david@dbnylaw.com or visit us on Facebook to get important legal news, tips, and articles: www.facebook.com/BadanesLawOffice.

Can My Soon-To-Be-Ex Legally Take the House I Inherited?

You may have inherited a house prior to your marriage or even during the marriage. Provided that you have not placed your spouse on the Deed to this house, then your soon-to-be ex-spouse does not have any legal right to the house. However, they may have some rights to be financially compensated.

If you did place your spouse on the Deed, then the house may be considered a marital asset that has to be equitably divided (not necessarily 50/50, but in a “fair” manner).

Even if you didn’t place your spouse’s name on the Deed, if your spouse can show that they paid the mortgage or other expenses for the house, then they may be entitled to financial compensation. For example, if the mortgage was paid from your spouse’s own bank account, then they may be entitled to receive some monies from the eventual sale of the house or from the divorce.

Therefore, if you inherited a house or any type of asset, you should make sure not to place your spouse on the deed. You will also want to keep an accounting of how the expenses were paid for the house.

David Badanes and the Badanes Law Office, P.C., have helped hundreds of clients in protecting their inherited homes. If you have questions regarding any property that you inherited, and how to protect it, contact David Badanes and the Badanes Law Office, P.C. David Badanes and the Badanes Law Office’s phone number is 631-239-1702, email at david@dbnylaw.com or visit on Facebook to get important legal news, tips and articles: www.facebook.com/BadanesLawOffice.

Is My Pension Considered an Asset in A Divorce?

The answer is Yes, as a pension is considered an asset in a divorce.

According to New York State law, pension benefits and retirement benefits earned during a marriage are considered marital property and subject to distribution in the event of a divorce. This means that each spouse is entitled to a share of the other spouse’s pension benefits and retirement benefits.

In general terms, there are two types of pension/retirement benefits, they are:

Defined Benefit Pensions: Typically, this the type of benefit an employee would receive from working for the government or public entity. For example, teachers, police officers, New York City firefighters, other school employees are typically entitled to a defined benefit pension. Some large companies also may offer a defined benefit pension. A defined benefit means that the benefit formula that an employee is entitled to is defined and known in advance. It also typically means that the employer funds typically funds 100% of the amount that the employee is entitled to.

Defined Contribution Plans: In this type of plan, both the employee and employer will make contributions to an account in which the employee is entitled to upon the employee’s retirement or in leaving the company. Typically, the accounts are invested in the stock market or sometimes in bonds.

Regardless, of which type of pension/retirement plan a spouse has, the other spouse is entitled to the portion of that plan that was earned during the marriage. Here, is how that works:

Assume the following facts: If the spouse was earning pension benefits for 4 years prior to the marriage, then you were married for 15 years before the commencement of the divorce, the spouse continued to earn pension benefits after the commencement of the divorce for another 6 years. So in total, the souse worked earned pension benefits for 25 years (4 + 15 + 6), and during that time earned 15 years while married.

In this example, the formula (which is called the Majuskas Formula), states:

50% X Number of years earned during marriage
———————————————— (divided by)
Total Number or years earning pension benefits

So it would be 50% X 15/25 or 30% of the spouse’s pension benefits.

In virtually all divorce cases, a third-party expert company will be hired to determine the exact amount of pension benefits each spouse is entitled to.

If you have questions regarding your rights to pension benefits or retirement benefits during a divorce, contact David Badanes and the Badanes Law Office, P.C. David Badanes and the Badanes Law Office’s phone number is 631-239-1702, email at david@dbnylaw.com or us on Facebook to get important legal news, tips and articles: www.facebook.com/BadanesLawOffice.