Basic Legal Requirement to File For a Divorce in New York

In order to file for divorce in New York, you need to meet certain legal requirements. In other words, just because you live in New York now or got married in New York, may not qualify you for filing for a divorce in New York State.

In legal terms, you have to establish what is known as “residency”. The legal definition of “residency” is different than what is your current place that you live in. To establish “legal residency” so that you can file for a divorce in New York State, you must have ONE of the following:

  • Either you OR your spouse have lived in New York State for at least two years immediately prior to filing for divorce. You also have to properly plead grounds, here the grounds did not have to happen in New York (see below); OR
  • Both you AND your spouse currently live in New York State at the time of filing for divorce. Additionally, the grounds for divorce occurred in New York State (see below); OR
  • Either you OR your spouse has lived in New York for at least one year immediately prior to filing for divorce. Additionally, you were married in New York, you both lived in New York during your marriage or the grounds for divorce occurred in New York (see below).

As you can see, in addition to establishing legal residency, you have to establish “grounds”. “Grounds” give the Courts the basic reason why you should be granted a divorce. Since 2010, it is much easier to establish grounds, as now New York recognizes “no fault divorce.” No Fault divorce is explained below.

There needs to be a legally acceptable reason to get divorced in New York. There are seven acceptable grounds for divorce in New York. They are:

  • Cruel and inhuman treatment by your spouse. This is when your physical or mental health is jeopardized by continuing to live together.
  • Abandonment: your spouse abandons you for at least a year. This can include your spouse leaving you, kicking you out and/or not intending to return to the home.
  • Imprisonment: your spouse is imprisoned for three or more years.
  • Adultery: your spouse commits adultery. A witness is required to testify.
  • A separation agreement: You and your spouse have not lived together for at least one year due to a separation agreement. The agreement must be signed by both you and your spouse in front of a notary and the agreement must abide by the legal requirements for a Separation Agreement.
  • “No Fault Divorce.” To plead a no fault divorce, you state that there has been an “Irretrievable breakdown of the relationship for at least six months.” Since 2010, virtually every divorce, in New York State, uses this as the grounds for divorce. You don’t have to prove irretrievable breakdown, you simply tell the Court that this is your grounds. One possible issue is that you should be married at least 6 months to use the no fault divorce as your grounds.

Once you meet the residency and grounds requirements, you can begin to file for a divorce in New York State.

It is important to consider consulting with and retaining an attorney who has the experience to know if you can file in New York and to protect your legal rights. If you are contemplating getting a divorce, call David Badanes at 631-239-1702 or email us at david@dbnylaw.com. The Badanes Law Office has offices in Northport and Uniondale.

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If You Are Getting Divorced – Should You File a Joint Tax Return?

Even if you are in the middle of a divorce, you can still file a joint tax return. According to the IRS, you are still considered “married” if your divorce is not finalized on December 31st of the taxable year (for example, for your 2019 taxes, provided your divorce is not finalized on December 31, 2019, you can file a joint tax return). The IRS does not care if your divorce is “almost” final or you haven’t been living together for years. It is a strict rule, divorced by December 31st – yes or no?

As you may know, most married couples will receive a greater refund or pay less in taxes by filing a joint tax return as opposed to an individual tax return. However, by filing a joint tax return, you open yourself up to whatever tax fraud or under-reporting of income that your soon-to-be-ex may be engaging in.

If you believe that your soon-to-be-ex is engaging in the under-reporting of income or is filing a fraudulent tax return, then you should not file a joint tax return. Although, it was your spouse who engaged in the illegal action, you still might be liable for 50% (or even 100%) of the tax liability and tax penalties. To relieve yourself of liability, you can state that you were an “innocent spouse” and that you should not be held liable for your spouse’s wrongdoing. However, it is very difficult to prove that you were the “innocent spouse” and most of those claims are rejected.

It is important to note, that whether or not your divorce is final, or even if you are in a “happy” marriage, everyone has the option to file a separate tax return — while you are married. You cannot be forced to file a joint tax return. Just be aware, that you most likely will have to pay more in taxes compared to if you filed a joint tax return. This is because some tax deductions, credits, and other benefits are not available or are limited when you file separately.

If you are married, and you are going to file a separate tax return, then you may have to coordinate certain deductions and exemptions with your spouse. For example, if you have children, you will have to decide which spouse will receive the tax exemption for the children. This can be done either by an agreement between both parties or a Court order stating which spouse will receive it. Other examples include who will take the deduction for mortgage interest, real estate taxes and charity.

David Badanes and the Badanes Law Office, P.C. David Badanes and the Badanes Law Office, P.C. have years of experience and can guide you through the divorce process. David Badanes can make sure you make the right decisions, whether it is about your tax returns or other important decisions.

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What Happens To Your Inheritance When You Divorce?

You may receive an inheritance before you are married, after your marriage, but before your divorce is started, or while in the middle of your divorce. This blog will explain what happens to your inheritance in all of those situations. I’ll assume that the inheritance was cash and not jewelry, artwork or some other physical personal property. However, the basic rules apply to cash and to personal property.

Inheritance before you are married: Any inheritance you receive before marriage is 100% yours. However, it only remains 100% yours as long as you keep the money in a separate bank account. If you deposit the inherited money into a joint bank account, then it is likely that the money will be considered a joint asset, and one that has to be divided 50/50.

Inheritance after you are married (but before the divorce is started): Provided the inheritance you receive after marriage is clearly designated to go to you, then that inheritance is 100% yours. However, similar to money received before you are married, the money only remains 100% yours as long as you keep the money in a separate bank account. If you deposit the inherited money into a joint bank account, then it is likely that the money will be considered a joint asset, and one that has to be divided 50/50.

Inheritance after the divorce is started: Provided the inheritance you receive after marriage is clearly designated to go to you, then that inheritance is 100% yours. Now that the divorce has started, there should be no reason that you deposit the money into a joint bank account. Yet, if you did, once again, any money deposited into a joint bank account would almost definitely be considered a joint asset, and one that has to be divided 50/50.

Therefore, if you receive an inheritance, before you file for your divorce, or even in the middle of a divorce, you can easily protect the amount that you receive. You need to directly deposit the inheritance into your own separate bank account. You should also document the amount of the inheritance, by photocopying the inheritance check and keeping that in a safe place. You should also keep a copy of the bank statement, showing the amount of the inheritance.

By taking these simple steps, your inheritance will be considered your “separate property” and therefore is not part of the marital assets.

If you have a question about your divorce, or how you can protect your inheritance, then contact David Badanes, Esq. and the Badanes Law Office, P.C. David Badanes has represented countless clients in their divorces and can help you.

If you are thinking of getting divorced, and live in Suffolk County, Nassau County or New York City, call David Badanes and the Badanes Law Office at 631-239-1702, email at david@dbnylaw.com.

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Five Reasons Why You Should Not Wait To Start Your Divorce

The decision to get a divorce is never an easy one. As many Judges tell me: “No one gets Married thinking they will get Divorced.” Although, you may know that your marriage is “over”, yet, you may be reluctant to start your divorce. Here are five reasons why you should not wait to start your divorce:

  1. Alimony/Maintenance: If there is going to be alimony (now called spousal maintenance), then the longer you are married, the longer you may have to pay alimony.
  2. Marital Assets: Until you start your divorce, every asset and money you earn is typically going to be considered marital property. The sooner you start your divorce, the sooner that you cut-off your spouse getting half of your assets.
  3. Debts: The flip side of marital assets is marital debt. In general terms, any debt that is accumulated before the commencement of the divorce is considered marital debt and you could be required to pay half of that debt. So, if your spouse is accumulating marital debt, then the sooner you start your divorce, the sooner you can stop being held responsible for that debt.
  4. Children: If you have children, staying “unhappily married” or in a “toxic home” will have negative effects on your children. As difficult as a divorce may be for the children, living in a household where the parents are always fighting or the tensions are high are usually worse for the children.
  5. Domestic Violence: If there is domestic violence, clearly you should not wait to start the divorce process.

If you are considering getting divorced, then you need an experienced attorney who can guide you through the process. David Badanes and the Badanes Law Office, P.C. have the experience to get you through the divorce process. They have represented hundreds of clients. Check out our reviews on Google. David Badanes can be contacted at 631-239-1702, email at david@dbnylaw.com or visit our web site: www.dbnylaw.com. The Badanes Law Office has offices in Northport and Uniondale.

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My Ex Spouse and I Have a Verbal Agreement to Modify Our Divorce: Is that Binding?

After your divorce, especially if you and your spouse have children, there may be many times when you and your ex-spouse want to modify or change what your divorce agreement states. Most likely you will just “verbally agree” (or do it via text messaging or email). Is your verbal agreement binding? Is your text message or email binding?

Generally, a verbal agreement is not binding. Similarly, a text message or email is not binding — even if it is signed.

In New York State, in order or a modification of your divorce agreement to be binding, it has to be in writing, have a proper acknowledgment and also be notarized. Simply, having a written agreement that is signed is not sufficient. Even if the document is signed and it has a notary public stamp that is also not sufficient. The agreement must be signed, notarized and have what is called a “proper acknowledgment.”

A proper acknowledgement states that in an addition to a notary recognizing your signature on the document, the notary must also state that the party signing the document orally acknowledged to the notary public that he/she signed the document and that the notary indicate that they ascertained that the signer was the person described in the document.

Therefore, even if you and your ex-spouse come to a verbal agreement and you then want to challenge that verbal agreement you probably can do so. However, the Court can consider your verbal agreement as evidence and still may uphold the verbal agreement.

There will be many times that in practice, you and your ex-spouse should feel comfortable in entering a verbal agreement. Clearly, having to enter a written agreement every time you want a small change to your agreement could be unwieldy and prohibitive. You and your ex-spouse should have at least enough trust that a verbal agreement should suffice.

Of course, if the modification or change to your divorce agreement is a big change, then it probably would make sense to enter into a written agreement and also to hire an attorney to make sure that the written agreement is property drafted.

David Badanes, Esq. and the Badanes Law Office have drafted many modifications and amendments to divorce agreements and have also given advice on what divorced couples need to do to modify their divorce agreements.

If you want to change your divorce agreement or you are considering getting divorced, then 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 our web site: www.dbnylaw.com. The Badanes Law Office has offices in Northport and Uniondale.

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How the Coronavirus Will Impact New York Divorces

The Coronavirus — that nasty little virus that is causing people to get sick (and unfortunately death), people undergoing self-quarantined, everyone washing their hands, a run on Purell and other disinfectants, and the general upheaval of our daily lives — will also affect your divorce or may even cause more divorces.

As this is being written, New York Courts have issued guidelines to extend timelines, postpone proceedings (whenever possible) and to consider the use of video and telephones in conferences. The goal is to minimize courthouse appearances, maximize adjournments and also to promote the use of remote appearance via video or telephones. Attorneys and their parties may be excused from physically appearing in Court.

However, as of now, adjournment requests for hearings and trials will be determined by each Judge and on a case-by-case basis.

Therefore, it is likely that if you have an existing divorce case, that it will be delayed. If you are thinking of filing for a divorce, you can still do so, but, again, your court dates may be delayed.

Clearly, the Coronavirus and its full impact are still not known and this is a fluid situation. This blog will be updated as more information becomes available.

David Badanes, Esq. and the Badanes Law Office, P.C., keeps track of recent news and makes sure that its clients are well informed on how recent events can effect their divorce.

If you are thinking of getting divorced, please contact David Badanes and the Badanes Law Office, P.C. at: 631-239-1702, email at david@dbnylaw.com or visit our web site: www.dbnylaw.com. The Badanes Law Office has offices in Northport and Uniondale.

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Can My Tinder Account Be Used as Evidence in My Divorce Case?

During a divorce, most everything you do can be used as evidence in your divorce case. You probably already know that your financial documents and information can be used as evidence. In addition, your text messages and emails can also be used as evidence. And yes, if you are using Tinder or any other dating application, then that information can also be used as evidence.

Therefore, you should be very careful about what you state on your Tinder profile or on any online account.

If you do decide to date, then you have to know that whatever money you are spending on your dates can be used against you. During your divorce, you don’t want to be going on expensive travel vacations. You also should not be introducing your new paramour to the children.
However, it is important to know, that it is not necessarily improper to date while your divorce action is pending. As stated above, what matters is how much money you are spending on your dates and if you are engaging in any irresponsible behavior with your new boyfriend/girlfriend.

So, although using Tinder might be okay, you have to be aware that anything you put online, including information on Tinder, can be used as evidence in your divorce case.

Social Media, Tinder, and all new applications can present challenges to your divorce. David Badanes, Esq. and the Badanes Law Office, P.C. keeps up with the changes in Social Media and makes sure that his clients are properly advised.

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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