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.

How Does a Divorce Effect Social Security Benefits?

Social Security benefits are available to most American workers. For married couples, even if only one spouse is eligible for Social Security benefits, the other spouse may also receive benefits based on the marriage. When couple’s divorce, in order to collect Social Security benefits from your former spouse, you need to meet the following requirements:

  • Your marriage must have been for at least 10 years
  • You must be at least 62 years of age (at the time that you want to start collecting your benefits)
  • You need to remain unmarried — however, if you do re-marry, then you may still be able to receive benefits from your first spouse
  • Your own Social Security benefits must be less than the amount of benefits you would receive from your ex-spouse

If you do qualify for Social Security benefits, the benefits you receive do not reduce the amount of Social Security benefits paid to your former spouse. Therefore, getting divorced does not reduce your benefits, it only allows your former spouse to collect Social Security benefits as well.

You should also know, that if your ex-spouse qualifies for their Social Security benefits, but, has not applied for them, that you can still receive your Social Security benefits, based on that ex-spouse (provided that you have been divorced for at least two years).
Finally, it is important to know that Social Security benefits are subject to Federal Law and are not subject to change based on changes in New York law.

If you are contemplating divorce and you are close to being married for 10 years, you may want to delay filing for divorce until you are married for more than 10 years. This way you may be eligible to receive Social Security benefits from your former spouse.

If you are thinking of getting a divorce, you need an experienced Matrimonial and Divorce Attorney to guide you through the process. 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 and Uniondale.

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Your Power Of Attorney And Your Divorce

Prior to any marital difficulties, you may have signed a Power of Attorney and named your spouse as your agent in your Power of Attorney. In almost all situations, if you are getting divorced, you will want to revoke the Power of Attorney.

To revoke your Power of Attorney, you simply just have to enter into a new Power of Attorney and name a new person as your agent.

It is important to note that if you do not revoke your Power of Attorney, then your spouse is still your agent – even if you are going through a divorce.

When you are getting divorce, it is important to hire an attorney who knows about both divorces and Power(s) of Attorney. David Badanes and the Badanes Law Office, P.C. have the knowledge to help you. Contact David Badanes and the Badanes Law Office at 631-239-1702, email at david@dbnylaw.com or visit our website: www.dbnylaw.com. The Badanes Law Office has offices in Suffolk County (Northport) and in Nassau County (Uniondale, across from the Nassau Coliseum).

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How To Handle An Ex-Spouse That Does Not Abide By The Divorce Agreement

A divorce agreement issued by the court is a legally binding contract. As such, if either party refuses to follow the divorce agreement, you have a few options on how to handle this situation.

  1. You can have your attorney (or you can do this yourself), send a letter outlining exactly how your ex-spouse is not following the divorce agreement (in other words, how they are in breach of the agreement). Depending on what your divorce agreement states, you may have to give your ex-spouse a certain number of days to rectify their breach.
  2. If your ex-spouse ignores your letter or does not fully rectify their breach, then you will have to file a Motion or an Order to Show Cause to the Court. The Motion (or Order to Show Cause) will state that your ex-spouse is in breach and what you are seeking. In many situations, you may be able to request your attorney’s fees.
  3. You may also ask the Court for a finding of “contempt” and that your ex-spouse should be incarcerated. If your ex-spouse is found to willfully breach the divorce agreement, and the Court believes the breach is serious enough, they could order that your ex-spouse be incarcerated.

In general terms, these are the most common examples of how an ex-spouse breaches a divorce agreement:

  • Failure to pay Child Support: The Court treats the failure to pay child support very seriously. If your ex-spouse is not paying you child support, you should immediately go to court to seek relief.
  • Failure to pay Spousal Maintenance (alimony): Similar to not paying child support, the Court will treat this very seriously.
  • Failure to follow the parenting time arrangements: Unlike the failure to pay child support or spousal maintenance, here the Court will be more lenient.
  • It is important to note that just because your ex-spouse doesn’t pay child support, this does not mean that you can prevent your child from visiting your ex-spouse.

Divorce can present many challenges, even after the divorce is finalized. David Badanes, Esq. and the Badanes Law Office, P.C. can help you and will answer all your questions about the divorce process. David Badanes and the Badanes Law Office, P.C. can be contacted at 631-239-1702, email at david@dbnylaw.com or visit our web site: www.dbnylaw.com. The Badanes Law Office, P.C. has offices in Northport, Suffolk County and in Uniondale, Nassau County.

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