When is the Right Time to File for a Divorce?

Deciding on whether you want to file for a divorce is a very hard decision. It is literally “life-changing”. You have probably seen some of your friends or relatives go through a divorce. You know that in many of those situations, the divorce itself was very difficult. However, you may also know some situations, where the divorcing couple were able to get divorced and able to do it in a civil and amicable manner.

For many people who are considering whether or not to get divorced, it may take them weeks or even months to actually start the process. They may be looking for a “perfect time” or they keep coming up with excuses to put off the divorce.

The following questions may help you decide whether now (or in the future) is the right time to file for a divorce.

  1. Is there domestic violence? If the answer is yes, then you should be seeking a divorce and you probably should file as soon as possible. Even if it is just the “first time” that there was a domestic violence incident. In almost every case, if there is a first time, there will be many more times of domestic violence.
  2. Is your spouse having an affair (or are you having an affair)? If you are having an affair, then clearly, you are unhappy in your marriage and you should file for a divorce. If your spouse is having an affair (and you find out about it), then they are unhappy in the marriage and you are probably not getting the love and attention you deserve.
  3. You are in a “loveless” marriage. Even if you or your spouse are not having an affair, but, you are just living together like roommates, then that may be an indication that your marriage is not working. This may be a time to seek marriage counseling or it may be a signal that your marriage isn’t working.
  4. What about the children? If you have children, then this will be a major factor to consider in getting divorced. If the living situation is very tense because of your marriage difficulties, this will affect your children. Sometimes, staying married for “the sake of the children” is actually worse for the children then getting divorced. The constant fighting or tension can have a very negative effect on the children. Therefore, don’t stay married just because you have children. However, of course, you will need to consider what will happen to the children during the divorce and after the divorce.
  5. Do you think about getting divorce often? If you are thinking about getting divorced, then it probably is a good indication that you should get divorced.

Divorce can be hard and there will never be the perfect time to get divorced. David Badanes has helped countless clients going through their divorce and navigating them through the process. Visit us on Facebook to get important legal news, tips, and articles: www.facebook.com/BadanesLawOffice.

What Happens if I Miss Court?

If you are scheduled to go to Court, you should attend. However, if you can’t attend or just “miss” your court date, then this is what you should do.
If you have an attorney, then the first thing you should do is contact your attorney and tell your attorney that you cannot attend court. Your attorney will advise you on what to do.

  1. If you do not have an attorney, then as soon as possible, you need to contact the court and explain why you could not attend. This should typically be done by a letter to the Judge. In your explanation, you should explain that you are sorry that you missed court. Then you should explain why you did not attend.
  2. If you do not attend Court, then you could face the following penalties: (1) the Judge could issue a warrant for your arrest; (2) the Judge could hold you in contempt; and/or (3) the Judge could order you to pay your adversary’s legal fees to attend court (while you were not there).

You should do everything possible to make sure you attend Court. As stated above, if you miss Court, then you could face serious consequences. Furthermore, your absence will not bode well as to how the Judge handles your case.

David Badanes, Esq. and the Badanes Law Office, P.C. represents clients in their divorce and family court matters. To make an appointment or to learn more then contact David Badanes and the Badanes Law Office, P.C. today at 631-239-1702, email at david@dbnylaw.com or visit our web site: www.dbnylaw.com.

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How To Protect Your Credit During A Divorce And After A Divorce

Going through a divorce is difficult. One of the many areas that a divorce can affect is your credit. The following are some ways you can protect your credit during a divorce and after your divorce.

• Credit Cards. If you and your spouse have joint credit cards, it is extremely important to make sure that the use of the credit card and the payment of the credit card is resolved in the divorce.

For your separate credit cards, then it is very important to pay more than the minimum amount due. Even if you only pay a few more dollars than the minimum this will help in avoiding the large credit card interest rates.

As for which credit cards to pay off, there are a few schools of thought. Typically, most experts advise you to pay off the credit card with the highest rate of interest. Generally, that is good advice. However, some people find it easier to pay off the credit card with the lowest outstanding balance. By paying off the entire balance on a credit card with the lowest balance, it is easy to see that you are taking care of one credit card at a time. Of course, it is important, that while you are paying off that credit card, that you cannot use that credit card.

After the divorce is final (or if permitted by the Court, then during the divorce), you should remove your spouse (or ex-spouse) as an authorized user from any of your credit cards. Similarly, you should remove yourself as an authorized user from your spouse’s (or ex-spouse) credit card accounts. This is because the credit card companies will include your spouse’s credit history on any account where you are an authorized user.

• Reduce expenses. In almost all situations, it is possible to reduce some non-essential expenses. By using those savings to pay off higher interest credit cards, you will be saving significant amount of money and helping your credit.

• Pay all your bills on-time. In addition to your credit card bills, it is important to pay all of your other bills on-time. This includes: mortgage, rent, student loans, car loans, bank loans, utilities.

These are just a few areas that will help you protect your credit, both during and after a divorce. David Badanes, Esq. and the Badanes Law Office, P.C., give real world advice and practical advice to their clients who are going through a divorce on Long Island, NY.

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

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Can One Party Stop A Divorce in New York?

New York is now a no-fault divorce State. This means that you do not have to show any fault in obtaining a divorce. Therefore, except for very limited reasons, once a divorce is commenced in New York, you will not be able to “stop” a divorce from happening in New York.

When can you stop a divorce? Here are some of the situations where you could stop a divorce in New York:

1. Someone started a divorce process in another State, before the divorce was started in New York. If one party started a divorce process in another State, before the New York Divorce case was started, then the rule is ‘first come, first served.” You can ask the New York Court to dismiss the New York divorce, so that the other State can process its divorce case first.

2. Neither party is a resident of New York or has only been a resident for a short time. In order to qualify to start a divorce in New York, you have to satisfy the residency requirements of New York State. They are:

a. Either party has lived in New York State for 2 continuous years (at the time the divorce was started);
b. You were married in New York, and either party has lived in New York State for 1 year immediately preceding the start of the divorce; or
c. Either party has lived in New York State for 1 year immediately preceding the start of the divorce and the parties have resided in New York as a married couple.

If you do not meet the above requirements, then you can ask the Court to dismiss the New York divorce.

As you can see, in most cases, you will not be able to stop a divorce. However, if you are involved in a divorce, you want to make sure that your rights are protected.

David Badanes, Esq. and the Badanes Law Office, P.C. have helped hundreds and hundreds of clients in their divorce. If you have been served divorce papers, then call David Badanes and the Badanes Law Office, P.C. at 631-239-1702 or email at david@dbnylaw.com.

The Badanes Law Office has offices on Long Island, New York in Northport and Uniondale.

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Can A Spouse Stay On A Mortgage After The Divorce?

If you and your spouse are both on a mortgage, in most divorces, either the property will be sold or one party will buy-out the other parties’ interest in the property. In those instances, either both spouses will be removed from the mortgage or only one spouse will remain on the mortgage.

However, there are some cases, where both parties want to keep the property and do not want to change the mortgage. Can both spouses stay on a mortgage after the divorce? Can one spouse stay on a mortgage after the divorce? The short answer is “yes”, it is possible that either one or both spouses can stay on a mortgage after the divorce. However, in order for that to happen, you will need to do the following.

1. If the divorce is settled, then in the settlement agreement, it must be very clear that one or both parties will remain on the mortgage. The agreement will also have to specify what happens if the mortgage is not paid. It is very important to place safeguards in the agreement, so that if the mortgage is not paid, on time, that either the other party can pay the mortgage, or the property will be sold.

The agreement should also state what happens when the property does get sold or what happens when one party no longer wants to be on the mortgage.

The bottom line is that the agreement has to think of all the things that can go wrong (i.e. the mortgage not getting paid) and also has to deal with situations where even if the mortgage is getting paid, on time, how long that will be allowed to happen.

2. If the divorce goes to trial, most likely a Judge would not allow both parties to remain on the mortgage (except, perhaps for a very short time). Usually, a Judge would order the property to be sold. If only party was on the mortgage, then a Judge may allow that party to continue to remain on the mortgage, but, the Judge will put strict limits on how long and what happens if the mortgage is not paid.

There are many contingencies and scenarios that have to be considered with a mortgage. 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. We have offices in Northport, Suffolk County and in Uniondale, Nassau County.

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Are Separate Bank Accounts Considered Marital Property?

In general terms, all assets acquired after marriage are considered marital property. Also, generally, it does not matter if one person is listed as the owner of the property, it is still considered marital property.

To determine if a separate bank account is considered marital property, ask yourself the following questions:

1. Was the bank account opened after marriage? If yes, then it almost always will be considered marital property. The exceptions would be if the monies placed in the bank account came solely from an inheritance, gift or a personal injury award. If all the monies placed in the bank account did come from an inheritance, gift or personal injury award, then that money is considered separate property and therefore the bank account and the money in it is also your separate property.

If the bank account was opened before the marriage, then go to question number 2.

2. If after the marriage: Did you place any joint monies, your wages or other marital funds into the bank account? If after the marriage, you put your pay check, or other marital funds into this bank account, then at the very least that money would be considered marital property. Furthermore, depending on the circumstances, all of the money in the bank account could be considered marital property.

If you answered no to this question, then most likely all the monies in the separate bank account will be considered your separate property. This is because you did not place any marital funds into the bank account.

If you have questions about what is marital property or separate property, David Badanes, Esq. and the Badanes Law Office, P.C. can answer your questions and help you. If you are considering getting a divorce or you have been served with divorce papers, then call David Badanes, Esq. at 631-239-1702 or email at david@dbnylaw.com. The Badanes Law Office has offices in Northport and Uniondale on Long Island, NY.

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What Do All the Legal Documents Mean in a Divorce?

In a divorce, there are many legal documents that get filed with the Court. Here is a brief summary and explanation of those documents:

  • Summons: This document states the names of the two parties (Plaintiff and Defendant), the name of the Court where the case is filed, the attorney’s contact information, and some other basic information. Once the Summons is filed, it will be assigned an Index Number. There are two types of “Summonses”, one is simply a “Summons”, the other is a “Summons With Notice”. If it is “Summons With Notice”, it will state that the Plaintiff is seeking a divorce and a brief summary of the relief the Plaintiff is seeking (for example, child support, spousal maintenance etc.). Both the Summons and the Summons With Notice have to be properly served upon the Defendant and upon serving the Defendant, the Defendant typically has 20 days to respond to either type of Summons.
  • Complaint: Will give the basic facts of the case, such as date of marriage; children’s names; parties’ addresses; and the cause of action (in a divorce, it is almost always “no fault divorce”) and finally, what relief the Plaintiff is seeking (similar to the type of relief that a Summons With Notice requests). The Complaint will also have to be properly served upon the Defendant, and the Defendant will need to respond with an Answer.
    Answer: The Defendant will respond to the complaint by providing the Answer. The Answer will typically state that the Defendant denies the substantive parts of the Complaint. In some cases, the Defendant may respond with an “Answer with Counterclaims”.
  • Counterclaims: A counterclaim is the mirror image of a Complaint, but, they are the Defendant’s “complaints” against the Plaintiff.
  • Reply: If the Defendant files a counterclaim, then the Plaintiff has to respond with a Reply, which is the mirror image of the Answer.
  • Request for Judicial Intervention (“RJI”): In New York, a Judge will not be assigned to your case until a RJI is filed. By filing a RJI, you are requesting that a Judge be assigned and depending on how the RJI is filled out, what you are asking the Judge to do.
  • Orders (and Decisions): During the divorce process, the Court may issue several Orders and/or Decisions. An Order is issued by the Court, and gives a specific command or direction for the parties to follow. A Decision may be how the Court decides a certain issue. For example, the Court may show how the Court decided child custody, spousal maintenance and a host of other issues. In some Orders, it may have several decisions. Depending on the Judge, a decision and an order may mean the same thing.
  • Stipulation of Settlement: In New York, a Stipulation of Settlement is typically the agreement that resolves all the issues in the divorce. It will be signed by both parties and also notarized. In most divorces, this will be a very extensive document.
  • Note of Issue: This informs the Court that all discovery has been completed and that the divorce is ready for trial. If the parties have settled the divorce, the Note of Issue will indicate that no trial is necessary.
  • Judgment of Divorce: Once the Judgment of Divorce is signed, you are officially divorced. The Judgment of Divorce will contain the basic findings and orders of the Court. Oftentimes, the Judgment of Divorce will refer to the parties’ Stipulation of Settlement.

Divorce is complicated and there are many legal documents that will be filed with the Court. In order to make sure that your Divorce is handled properly you need an attorney who can explain all these documents to you and make sure they are properly completed and filed. 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.

What is a Receiver (in a Divorce)

In some divorces, the Court will appoint a receiver. A receiver will typically be an attorney who will act as the custodian of some (or in rare cases, all) of the parties’ assets. A typical situation where a receiver will be appointed is when there is a piece of real property that needs to be managed. For example, if the couple owns a rental property, a receiver may be appointed to collect the rent, make sure repairs are done and also make sure that any mortgages and property taxes are paid.

Another example of when a receiver will be appointed is when the divorcing couple owns a business or when one of the parties own a business. In this situation, the receiver will actually manage the business (usually by hiring someone).

The Court will appoint a receiver when the divorcing couple is unable to manage certain assets. This could be because one party is not properly taking care of the asset or is simply not capable of taking the case of the asset.

If a receiver is appointed, that receiver will be entitled to earn a reasonable fee. Therefore, if possible, it is better for the divorcing couple to avoid having a receiver appointed.

If the Court or you want to appoint a receiver, you need expert legal advice. David Badanes and the Badanes Law Office, P.C., are very familiar with the receivership process and can protect your rights.

If you need legal advice about your divorce or you are seeking a divorce, then contact David Badanes and the Badanes Law Office. They have helped numerous individuals in their divorce. Call David Badanes, Esq. and the Badanes Law Office, P.C 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.

In a Divorce – Does it Matter if I’m the Plaintiff or Defendant

For New York Divorce cases, there will be a Plaintiff and a Defendant (in other States, they may be called a Petitioner and a Respondent). Does it matter if you are the Plaintiff or the Defendant? The short answer is that it really doesn’t matter.

Unlike most every other type of case, in a divorce, whether you are the Plaintiff or the Defendant, has virtually no effect on the ultimate result of the divorce. This is because New York, like every other State is a “no-fault divorce State.” Therefore, you do not have to “prove” that you are entitled to a divorce. So, you do not have to meet your burden of proof to show that you are entitled to a divorce. In contrast, in other types of cases, the Plaintiff has to establish that they “win” by a preponderance of the evidence, clear and convincing evidence or in a criminal case, by showing the Defendant is guilty beyond a reasonable doubt.

In a divorce case, no one is deemed guilty and no one is deemed to be “at fault.” This is why it really doesn’t matter which person is the Plaintiff and which person is the Defendant.

In a divorce case, the Plaintiff is the person who filed for the divorce. If there is a trial, the Plaintiff will be the person who has to present their witnesses first. After the Plaintiff presents all their witnesses, then the Defendant will then bring forth their witnesses.

However, there are some small differences in being the Plaintiff compared to being the Defendant. The Plaintiff will pay the fee to file the Summons ($210) and typically will have to file the fees for getting a Judge assigned ($95) and a document called the Note of Issue ($30). In general, the Plaintiff is also responsible for making sure all the documents are filed to finish the divorce process. In addition, the Plaintiff will have to make sure that the Defendant is properly served and will usually hire a process server to effectuate the service.

The Court and the Judge do not give an advantage or disadvantage to whether you are the Plaintiff or the Defendant.

There are many other issues in a divorce, and they can be complicated. You need an expert attorney who can guide you through the process. David Badanes, Esq. and the Badanes Law Office, P.C. have represented countless clients and have achieved excellent results. Contact 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.

Lori Loughlin’s and Felicity Huffman’s Choices and How that Relates to Your Divorce

As you may have heard, two actresses made very different choices when it came to the criminal charges against them. Lori Loughlin has decided to plead “not guilty”, while, it has been reported that Felicity Huffman has decided to plead “guilty”. Although their choices were made in the context of a criminal matter, they illustrate how different cases and situations result in different choices. This article explains some of the choices you have in your divorce matter.

In a divorce, there are two major choices to be made:

  • Go to Trial; OR
  • Settle

It is estimated that 95% of divorce cases settle. Of that amount, some people settle at the very last minute, meaning on the day of trial.

The reasons why people settle is that typically if you choose to go to trial, they will be spending a lot of money in attorney fees, while if they choose to settle, the opposite will most likely be true, as they will be saving a lot of money in attorney fees.

In addition, choosing to settle, typically results in a better outcome. This is because, in a trial, most Court Orders are not as extensive as the settlement agreement. This could mean that the Court’s order will leave out important details. In contrast, a settlement agreement usually is very detailed.

Of course, in some cases, choosing to go to trial may be the best option. In order to decide which choice you should make, you need to consult with your attorney.

There are many other choices that most likely will have to be made in your divorce case, they include:

  • Housing: Do you choose to retain the marital home or do you choose to sell it. If you choose to try to retain it, for how long?
  • Child Custody: Do you choose to agree to joint custody? Do you fight for sole custody?
  • Parenting time: There are numerous choices to be made in deciding what your parenting time will be and what your spouse’s parenting time will be.

When signing an agreement, a client may state: “I had no choice”. That is incorrect, I tell them, that there is always a choice. Here, the choice is to either sign the agreement or if you don’t sign the agreement, then a Judge will make a decision. The client’s choice is to weigh out the positives and negatives of signing the agreement versus the potential outcome if the case goes to trial.

Divorce presents many choices. One of your first choices will be who you decide to hire for your attorney. If you are seeking an experienced attorney who will present all the choices and explain them to you, in plain English and how those choices affect you, then contact David Badanes, Esq. and the Badanes Law Office, P.C. 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.