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.

In a Divorce, Should You File Your Taxes Jointly?

If you are in the middle of a divorce and it is not finalized by December 31st, then you can still file a joint tax return. You are still considered “married” by the IRS if your Judgment of Divorce is not signed by December 31st. So, in some situations, all your divorce papers could be filed, prior to December 31st, but, if the Court (Judge) has not signed them, by the end of the year, you are still legally married.

In most situations, by filing a joint tax return, you will pay less in taxes than if you filed a separate tax return. Yet, there are some reasons why you might want to file a separate tax return, even if you are still legally married. As one example, if you believe your spouse is committing tax fraud, then it probably would be wise to file a separate tax return.

You always have the option to file a separate tax return during the period that you are still married. However, as stated above, 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.

So, in general terms, most likely you should file a joint tax return until your divorce is finalized. However, you should always consult with an accountant or tax attorney, before deciding whether or not to file a joint tax return or a separate tax return.

As with all areas of divorce, David Badanes explains the different tax consequences that occur in a divorce. If you are thinking of getting divorced, call David Badanes and the Badanes Law Office today at 631-239-1702 or contact us online.

Working Dads and Divorce

If you are a working dad and facing a divorce, here is what you need to know to protect your rights.

  1. Keep working. If you quit your job, the court will not reduce your child support obligation. Furthermore, you will need the income.
  2. Open a new bank account. You will need access to your own funds. Although you will most likely need to keep paying the monthly expenses, you are permitted to open up your own new bank account.
  3. Reduce your expenses. Where possible, reduce your expenses and save what you can. You may soon be facing child support and maintenance payments that will strain your budget.
  4. During the divorce process — don’t move out of the house.
  5. Once the divorce is over, if you must relocate from the marital home, then you should find a place to live as close as possible to where your children will be living.
  6. Stay involved with your children.
  7. Make the most of your time with your children. This does not mean that you have to be a “Disneyland Dad”. Find activities that you both you and your children enjoy.
  8. Make a budget.

If you are a working dad, then divorce may be very difficult. David Badanes and the Badanes Law Office, P.C. have represented numerous working dads and helped them in their divorce.

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Stay at Home Moms and Divorce

If you are a Stay At Home Mom and thinking of getting a divorce, or have been served with divorce papers, you need to know what your rights are.

You need to know that the courts will recognize your contribution as the caregiver for the children.

As a stay at home mom, while the divorce is in process you may be eligible for temporary child support and temporary spousal support.

Most likely your spouse will be required to pay some or most of your attorney fees.
Here are some other things you should know or do:

  • Keep a log (diary) of your daily and weekly caregiving duties with the children.
  • Determine what the monthly expenses are, including, the mortgage, utilities, car expenses
  • Determine how much support and money you will need after the divorce.
  • Open up your own bank account
  • Get a copy of the important financial documents

If you are a stay at home mom, you face specific challenges. David Badanes and the Badanes Law Office, P.C. have represented countless stay at moms and helped them in their divorce.

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Long Island Divorce: Should I Fight To Keep The House?

You may have an emotional connection with your home, however, deciding whether or not to keep it, requires a financial analysis of the pros and cons of keeping the home versus selling it.

The first thing to consider when deciding to fight for the house is whether or not you can handle the financial obligation by yourself. Keep in mind that keeping a house is more than just paying the mortgage. You will also have to pay the real estate taxes, insurance, maintenance, repairs and utilities associated with the house. In addition, most likely you will have to buy-out your spouse’s share of the house. This may require you to obtain a new mortgage.

Another factor in determining whether you should stay in the house: How long do you plan on staying in the home? Do you only need to stay a few years, for example, until the children graduate from high school? Or, do you plan on staying for a longer period of time? In either scenario, you need to make sure that you have enough funds to sustain the financial obligations of living in the home.

Although, typically you will need to buy-out your spouse’s share of the house, there are situations, where you can trade-off the value of the home for another asset. In many divorces, you can trade your share of retirement assets in exchange for the share of the value of the home. As an example, if the home is worth $500,000, and there is no mortgage, you would normally have to pay $250,000 to your spouse for his/her share of the home. However, if your spouse has a retirement asset (or other assets), that equal or exceed $500,000 in value, then you could waive your share of the retirement asset, provided your spouse waives his/her share of the house.

Yet, even when you can trade a retirement asset for exchange for a house’s value, you need to consider if this trade-off is worth it. By foregoing a retirement asset, you may not have enough money in retirement.

If you have questions regarding your home, property rights and your divorce, then contact David Badanes and the Badanes Law Office, P.C.  David Badanes has personally represented hundreds of clients in their divorce. Contact the Badanes Law Office’s at 631-239-1702, or email at david@dbnylaw.com. The Badanes Law Office has offices in Northport and Uniondale.

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New York Divorce Cost Saving Tips

If you are considering starting a divorce, or your spouse served you with divorce papers, you need to hire an attorney to represent you.  However, there are a few tips on how you can save money in the divorce process, they are:

  1. Make a List of Questions Before Seeing An Attorney. Before seeing a divorce attorney, make a list of questions. This will help you to focus on what questions you have.
  2. Identify Your Three to Five Most Important Issues. There are a lot of issues in a divorce, however, most likely, your most important issues are limited to three or five. By focusing on the most important issues, you can save time and money.
  3. Get Your Financial Records. Your attorney will need your financial records. Before seeing an attorney, it is a good idea to start getting those records now. At a minimum, you should get: tax records, bank records, retirement records, mortgage information and debt information (credit cards etc.).
  4. Save and Print Your Text Messages. In many divorces, text messages can provide excellent evidence. Make sure you save and print those text messages as soon as possible.
  5. Get Your Own E-Mail Address. By having your own secure e-mail address, you will be able to efficiently communicate with your attorney. There are several companies that provide free e-mail accounts (e.g. Gmail, Outlook, Yahoo, etc.)

David Badanes and the Badanes Law Office, P.C. has represented hundreds of clients and have helped them with common-sense tips on how to save money. If you are considering a divorce, need to hire an attorney, or are thinking of switching attorney, then you need to hire an attorney that will personally handle your divorce, that you can trust, knows the law, and represent you zealously.

David Badanes, Esq. and the Badanes Law Office, P.C. can help you and will answer all your questions about the divorce process.  Contact us today at 631-239-1702 or email David at david@dbnylaw.com. The Badanes Law Office, P.C. has offices in Northport, Suffolk County and in Uniondale, Nassau County.

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What Cats Can Teach You About Divorce

Yes, you read that right, cats can teach you something about divorce. As someone who has watched several cat videos, their behavior offers lessons for us humans on the divorce process. So, what can cats teach us:

  1. Cats don’t listen to other cats. Cats are not pack animals, they don’t blindly listen or follow what other cats do. When going through a divorce, your family and friends may give you lots of advice on how to handle your divorce. They may mean well, but, all too often their advice is not helpful. It is better to listen to your attorney’s advice.
  2. Cats can take care of themselves. Most cats are pretty independent and are good at taking care of themselves. In your divorce, you may need to learn how to take care of yourself.
  3. Cats are tough. If you have watched those cat videos, you are probably amazed at what cats can endure, and come out as if nothing happened to them. You will need to apply this advice in your divorce. A divorce can be very stressful and you may be faced with some difficult issues. Like a cat, you need to be tough and find a way to be successful, no matter what a divorce throws at you.
  4. Cats don’t need expensive jewelry or anything expensive. You buy a cat a cute little cat toy, and most likely it will play with the box it came in. Cats make do with what they have. So, in your divorce, you may be focused on what “things” you used to have, but, it may be better to focus on what is really important than on “things”.
  5. Cats will not tolerate bad behavior. Cat owners know that cats will not put up with crazy or annoying behavior. The same goes for your divorce. You may not be able to change your ex’s behavior, but, there is no need for you to tolerate it. If your ex’s actions are negatively affecting the children, you must take action.

You don’t have to love cats to know that they can teach you something about divorce. David Badanes and the Badanes Law Office recognize that a divorce is a stressful time, but, like a cat, will help you navigate the process. If you need a divorce attorney with cat-like reflexes, then call David Badanes and the Badanes Law Office. 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.

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