What Happens to the Mortgage in a New York Divorce?

What happens to the mortgage on your home (or other real property) in a New York Divorce?  There are a few possible answers to that question.

Possibility No. 1:  Nothing – although relatively rare, the mortgage can remain the same, with no changes.  However, even here, the fact that “nothing” is changing would still require appropriate language in the divorce settlement agreement to reflect this fact.

Possibility No. 2:  Paid off by one or both parties:  this is typically what occurs.  Either one party pays off the mortgage or the real property (house) is sold and the mortgage is paid off by the sale of the house.

Possibility No. 3:  Assumed by one of the parties:  Here, one of the parties “assumes” the mortgage and takes over paying the entire mortgage.

If there is a mortgage on your marital home, then how that mortgage will be paid is just one of many questions that have to be answered in your divorce.

David Badanes, Esq. and the Badanes Law Office, P.C. have drafted numerous divorce agreements that arrange for how a mortgage is handled after a divorce.

If you are thinking of getting divorced, call David Badanes and the Badanes Law Office today at 631-239-1702 or email at david@dbnylaw.com.

The Badanes Law Office has offices in Northport, Suffolk County and in Uniondale, Nassau County.

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Divorce Mediation: Advantages and Disadvantages

The following are the advantages and disadvantages of divorce mediation.

Advantages:

Less Expensive: As long as your mediation “works” (see below for disadvantages), then mediation is almost always less expensive than a contested divorce. This is because instead of each spouse having their own attorney and paying that attorney, there is only one mediator to pay. Furthermore, the mediator’s hourly rate is most likely less than a typical attorney.

Less Time: Divorce mediation will typically be a much faster process than going to court. Most mediations are done within two to three months.

Less Stressful: Most divorcing couples experience a lot less stress in using a mediator than hiring their own attorneys. With mediation, the couple is working together to create a divorce agreement. In comparison, in a contested divorce, the couple is working against each other.

More Creative: In mediation, a good mediator will be able to present more creative solutions to the issues faced in a divorce.

More Control: In mediation, you and your spouse have more control over the process. With the mediator’s help, you decide how the divorce process will proceed and as stated above, you can be more creative in solving the issues of the divorce.

Disadvantages:

Potential to be More Expensive: If your mediation “fails”, then you have spent money on the mediator and now have to spend money on attorneys. This most likely will make your overall divorce process more expensive.

Must be Willing to Compromise: If one or both parties are not willing to compromise, then divorce mediation will not work. When using a mediator, both parties must be able to compromise and discuss issues rationally and amicably.

Not For Alcoholics, Drug Abusers: Most mediators will tell you that if one or both parties are an alcoholic or abuse illegal (or prescription) drugs, that mediation most likely is not the proper forum for your divorce.

Not For Domestic Violence: Similarly, if there is domestic violence, then mediation most likely will not work.

Not For Complicated Cases, High Income Couples: If your divorce is one where the parties earn a high income or is a complicated case, then mediation most likely will not work for you.

In addition to being an attorney, David Badanes, Esq. is also a mediator and has helped numerous couples in mediation sessions. If you want a mediator, then call David Badanes at 631-239-1702 or email at david@dbnylaw.com.

David Badanes typically conducts his mediation in his Northport office; however, mediation is also available in Uniondale and virtually.

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What Does New York’s “No Fault” Divorce Law Mean?

In 2010, New York enacted its “No Fault” Divorce law.  Here is what you need to know about New York’s “No Fault Divorce Law”.

Before the 2010 law was passed, in order to get a divorce, you needed to show that your spouse was “at fault”.  This meant that you had to “prove” that your spouse did “something wrong” (this is also called “grounds for a divorce”). This sometimes meant that you could not get a divorce because you could not convince a Judge that there were “grounds” for your divorce.

With a “No Fault” divorce, you do not need to prove grounds, all you have to do is state you want a divorce and you will get a divorce. In other words, it does not matter “why” you want a divorce and you do not have to prove “grounds” or that someone was “at fault”. However, not so fast, before a court can grant a “no fault” divorce, you still have to resolve the following issues:

Since the law was passed, virtually every divorce is now a “no fault” divorce.  Although, you have the right to state “grounds” in your divorce (for example, adultery or cruel and inhuman treatment), most Judges will want to resolve your divorce with the “no fault” divorce law.

If you are thinking of getting divorced, call David Badanes and the Badanes Law Office today at 631-239-1702 or email at david@dbnylaw.com.

The Badanes Law Office has offices in Northport, Suffolk County and in Uniondale, Nassau County.

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National Law Day (May 1st) and What It Means for Your Divorce

In 1958, President Eisenhower declared May 1st to be Law Day in the United States. Although it is not an officially recognized government holiday, it is a day to celebrate law universally and spend time discussing how the law is meant to protect the people. In many cases, people are unaware about the many laws that affect them on a daily basis and this day is meant to raise awareness and inform them of these matters.

In the case of divorce law, it’s even more common for couples facing distress to have a hard time understanding the divorce process and how these laws will affect them. David Badanes, Esq. and The Badanes Law Office, P.C. are taking the time this Law Day to explain the history of divorce law and how each individual’s cases can be impacted.

It is often stated that it is much easier to get married than it is to get divorced. This is generally a true statement. For example, in New York, there are very few legal requirements in order to get married.  You certainly never have to get a Judge’s permission or get a Court Order in order to get married. In contrast, once married, to dissolve a divorce you will need to obtain a Court Order – called a Judgment of Divorce (or colloquially a “divorce decree”). When seeking a divorce or if you are the Defendant in a divorce case, your divorce is governed by New York State’s Domestic Relations Law.  This law provides the basis of how a Court will rule on all the issues involved in your divorce.

The intent of the divorce laws is to provide fairness in whatever means necessary. Spousal maintenance, what was once called “alimony,” is in the law to provide economic support for the spouse who might have sacrificed their career or income to support a family. When there are children, the intent of the divorce laws is shifted instead to protect and provide for the children. This means that there is a requirement to pay child support.

In New York, over the last 40 years, there have been significant changes to the divorce laws. One of the most significant changes in New York, is prior to 2010, in order to get divorced you had to prove “fault” or “grounds,” such as (i) abandonment for one or more years; (ii) cruel and inhuman treatment; or (iii) adultery. This was often an impediment to getting a divorce and also costly to the parties. Since October, 2010, New York now allows no fault divorces, where you don’t need to prove any fault, you simply file for divorce and once the issues in the divorce are resolved or determined by the Judge, a divorce will be granted.

While this process and many of these laws may feel overwhelming at first glance, The Badanes Law Office, P.C. is here to help you make sense of all of this.

If you are contemplating getting a divorce, and need an attorney to represent you, call David Badanes and the Badanes Law Office today 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, Suffolk County and Uniondale, Nassau County.

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When and How Can I Withdraw My New York Divorce?

Once you start a divorce and file a Summons (or Summons With Notice), you may not be able to simply cancel or withdraw your divorce. To determine when and how you can cancel/withdraw your divorce, you need to follow these general guidelines.

If your Summons hasn’t been served yet: If you filed your Summons, but have yet to serve it, then withdrawing your divorce action is very simple. You simply file a Notice of Discontinuance.

If your Summons has been served, but, the other parent hasn’t responded yet. If the Summons was filed and served, but, the other parent hasn’t responded yet, then withdrawing is still very simple. Once again, the filing of a Notice of Discontinuance will suffice, however, the Notice also has to be served upon the other parent.

If your Summons has been served and the other parent has responded. If the Summons was filed and served and the other parent has responded, then to withdraw requires both parent’s signature and approval. Once both parents approve then the Notice will be filed with the Court.

If you want to withdraw your New York Divorce, you should consult with an attorney to make sure that it is done correctly. David Badanes and the Badanes Law Office, P.C. have years of experience and can help you in getting your divorce cancelled/withdraw.

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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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