What Happens To Your House During A Divorce

For most divorcing couples, their main financial asset is their house. In most of those situations, the house is a marital asset that must be distributed in the divorce process. If the house is a marital asset there are three basic ways that the house can be distributed in the divorce:

  1. Selling the House: This is the simplest of the options, the divorcing spouses decide to sell the house to a third-party and each party typically would get 50% of the net profits.  In some situations, due to various other credits or other factors, the divorcing party may decide that one party receives more than 50% of the net profits.  As for who the house gets sold to, usually it is a third-party that neither divorcing spouse knows.  However, there are situations where the house will be sold to a close relative.
  1. Buy-Out:  Here, one spouse will “buy-out” the other spouse’s interest in the house.  That person completing the buy-out will then own the house free and clear, with the deed in their own name (or if they bought it with a third-party, in their name and the third-parties name).  If there was a mortgage, prior to the buy-out, then that mortgage would be fully satisfied and a new mortgage would be in the person completing the buy-out’s name.
  1. The Delayed Sale:  Typically, when there is a child involved, the Court and/or the parents may prefer to keep the house so that the child can remain living there until the child graduates from college.  In these situations, the divorce will be very specific on when the house can be sold.  At that time, either the house will be sold to a third-party (as in #1 above) or one party will buy-out the other party’s interest (as in #2 above).

In a delayed sale, it is extremely important to make sure that the following issues are addressed in the divorce:

  1. Who pays the mortgage?
  2. What happens if the person paying the mortgage is late in making those payments?
  3. Who pays for house repairs? House maintenance?
  4. What happens if a third-party puts a lien on the home?
  5. Can either party take out a home equity loan on the home?

David Badanes, Esq. is one of the few divorce attorneys who has also been an investor in real estate. He has experience to guide you in how to handle your home in a divorce. If you need an experienced divorce attorney with real estate experience to represent you in your divorce, call David Badanes, Esq. 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.

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

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How Will A DWI Affect My Divorce Case

If you are getting divorced, what happens if you have an “old” DWI (Driving While Intoxicated), recently were convicted of a DWI or just got arrested and charged with a DWI? In addition to whatever criminal consequences you may be facing, a current DWI or one that is only one or two years old may also significantly impact your divorce.

Typically, a DWI will only matter when there is also a child custody issue. If you were caught driving drunk with a child in your car, it is very likely that in addition to serious criminal charges, that in your divorce, you will lose custody of your child.

In situations where there were no children in your car, a DWI will still seriously negatively impact your chances of gaining custody of your children. The Court may view you as a risk or as someone who is irresponsible and not able to control hour alcohol and therefore not fit for custody.

If you were just arrested for a DWI and not yet convicted, you should make sure that your criminal defense attorney and your divorce attorney coordinate their legal defenses. If possible, you want to make sure that you are not convicted of a DWI charge and instead either negotiate a lower charge or go to trial and found innocent.

Finally, even if you have a DWI, not all is “lost”.  If you can show the Court that this was an isolated incident and that you are also seeking alcohol counseling, that can help convince the Court that you are fit to have custody. Certainly, you want to make sure that you inform your divorce attorney that you have a DWI on your record, so that they can give you the proper advice.

David Badanes, Esq. and the Badanes Law Office has helped numerous individuals who have been convicted or charged with a DWI.  David Badanes works closely with an experienced criminal defense attorney to coordinate the best plan of attack. If you have a DWI or been charged with DWI and need an attorney to represent you in your divorce, call David Badanes and the Badanes Law Office today at 631-239-1702, email me at david@dbnylaw.com or visit our web site: www.dbnylaw.com. The Badanes Law Office has offices in Northport and a satellite office in the middle of Nassau County.

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Why NOT Having An Attorney Can Hurt You

Although, you have the right to represent yourself in your divorce or in any other legal matter, you do so at your own risk. Recently, I was in Court waiting for my case to be called. While waiting, there were two cases that were being handled by the Court in which one of the parties decided to represent themselves. Each of these cases provide a good example of why NOT having a divorce attorney can hurt you.

CASE #1: Child Custody Case

This was a child custody case. The Mother represented herself, while the Father had an attorney. They had one child together. Prior to the summer and prior to going to Court, the Mother had most of the parenting time with the child. However, for the summer, she decided to let the child spend most of the time with the Father.

Now, after the summer, the Father brings a petition for custody to the Court. The Judge asks a lot of questions to both sides. Then the Judge asked the ultimate question to the Mother, which was: “Do you want to continue to allow the Father to have most of the time with the Child once school starts?”

If the Mother had an attorney, she would have known that the best way to answer this question was a simple “No”, with the second best answer would have been “I need time to consider this question.”

Instead, without an attorney, the Mother asked the Judge: “What are my rights?”.  Since, the Judge can’t represent the Mother or give legal advice to the Mother, the Judge took this non-responsive answer as a way of saying that she was “OK” with the Father having the Child most of the time.

It was clear to me that without a child custody attorney, the Mother “froze” and was “unprepared” for the Court proceeding. With an attorney, the Mother clearly would have done much better.

CASE #2: DIVORCE CASE

This was a divorce case, where the Husband decided to represent himself and the Wife had an attorney. The parties had no children and so the only issues to be decided were the distribution of assets, spousal maintenance (alimony) and attorney fees.

Here, the Wife was the so-called “monied spouse”, as she earned significantly more income than the Husband. During testimony, the Husband testified that he owned the marital home prior to the marriage. It was only several years after the marriage that he put the Wife’s name on the Deed. What the Husband did not know was that his testimony was not sufficient to allow him to claim a credit for the portion of the home that was his “separate property.” If the Husband had a divorce attorney, the attorney would have brought forth evidence of how much the home was worth at the time he put the Wife’s name on the Deed. In this way, the Husband would have been entitled to a credit equal to that amount.

Because the Husband failed to put forth the correct evidence, he lost out on hundreds of thousands of dollars.

If you are getting divorced or have any issues involving children, you need an experienced attorney to represent your interests.  You might think that you can represent yourself, but, there are too many areas of the law where you can make a vital mistake.

David Badanes and the Badanes Law Office, P.C. have represented hundreds of clients and can help you.  If you need an experienced divorce or child custody attorney, then call David Badanes and the Badanes Law Office at 631-239-1702, email at david@dbnylaw.com or visit our web site: www.dbnylaw.com.

The Badanes Law Office main office is in Northport, Suffolk County and he has a satellite office in Uniondale, Nassau County.

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Pot (Marijuana) is Now Legal so How Does it Affect My Divorce Case

Since 2021, it is legal to be in possession and to smoke a certain amount of marijuana (pot).  Soon, it will be legal to buy and sell pot. If you are getting divorced, you may want to know about some of the following questions:

  • What if I smoke pot?
  • What if I possess pot?
  • What if I sell pot?

Now that pot is legal to possess, the landscape has changed as far as divorces are concerned.  However, this does not mean that you are completely free to smoke/possess/sell pot while getting divorced – especially if there are children involved in your divorce.

If your divorce does not involve any children, then most likely whether or not you smoke pot, possess pot or even sell pot will probably make little difference in your divorce case.

It is when children are involved, that issues involving pot could have a negative impact. Most Judges are still fairly conservative and view “pot” as something that should not be around children.  Therefore, if you do smoke pot, you should do it when you don’t have the children.

If you do smoke pot, you could argue that your spouse condones it and knew about it for years and did nothing to stop you.  In this manner, your spouse has, through their own actions, has indicated that your smoking pot was not an issue.

As with alcohol, even though pot is legal, the Court doesn’t want you driving while “high” and prefer that you don’t expose the children to excessive use of pot.

If you smoke pot and are getting divorced or thinking about getting divorce, contact David Badanes, Esq. and the Badanes Law Office.  David Badanes has represented numerous clients who smoke pot. You can contact David Badanes, Esq. and the Badanes Law Office, P.C. today at 631-239-1702, email at david@dbnylaw.com or visit his web site at: www.dbnylaw.com.  The Badanes Law Office has offices in Northport and Uniondale.

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In A Divorce: When Does One Thousand Dollars Not Equal One Thousand Dollars

Assume that I owe you $1,000.00 (One Thousand Dollars), I could pay you back as follows:

  1. One Thousand Dollars in one lump sum in one month’s time.
  2. Two payments of Five Hundred Dollars.
  3. Five payments of Two Hundred Dollars.
  4. One Thousand Dollars in one lump sum, but I’ll pay it five years from now.
  5. One Thousand payments of One Dollar.

Most people would recognize that the fourth and fifth options are not fair and although each one adds up to One Thousand Dollars, because of inflation and the time-value of money, it is not really One Thousand Dollars.

This illustrates the “time-value” of money. In other words, money today is worth more than money tomorrow. As time goes on, inflation reduces the value of your money. So, even if I pay you $1,000 in five years (as an example), its real worth would be something like $950 – $990, depending on inflation and other factors.

Therefore, in a divorce, when you are making or accepting payments, you have to take into account the time-value of money. Typically, if you owe money, it is better to pay it over time (this assumes that there is no interest payments). Alternatively, if you have to pay money and have to pay it in one-lump sum, you can argue that because your money today is worth more than money in the future, that you deserve a discount in what you pay.

For example, if you have to pay spousal maintenance (alimony) and your payments come out to $1,000 per month for 5 years, for a total of $60,000, then you might want to agree to pay a lump-sum of $55,000. Your argument would be that a lump sum payment of $55,000 is worth more than 5 years of payments, with each payment of $1,000.

Pre-payment of amounts owed can work in many situations, not just for a payment of spousal maintenance. However, typically, you cannot pre-pay your child support obligation.

If you are considering getting divorced or are seeking a new divorce attorney on Long Island, then David Badanes and the Badanes Law Office can help you.  David Badanes can explain how the time-value of money can help your situation.

If you need an attorney to represent you in your divorce, call David Badanes, Esq. and the Badanes Law Office, P.C. today at 631-239-1702 or email me at david@dbnylaw.com. The Badanes Law Office has offices in Northport and Uniondale.

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Getting Divorced: Should You File Joint or Separate Tax Returns?

If you are getting divorce or recently divorced, one of the many questions you will have is, “Should I file my tax return separately or jointly?”

Most accountants will tell you to file a joint tax return as you will pay less taxes than if you both file a separate return.  If you and your soon-to-be-ex use the same accountant, you can have the accountant calculate your tax return by first using a joint tax return and then calculate your tax returns by using two separate returns. Your accountant can then explain the difference in taxes between the two alternatives.

There might be good reasons why you want to file two separate tax returns. If you believe your soon-to-be-ex is filing false or misleading information, then filing a separate tax return will protect you. Filing a separate tax return may also help you qualify for more financial aid for college or for more government programs.

However, if you are going to file a separate tax return, you might have to take into consideration the Court’s viewpoint on whether or not you can file separately.  Since, filing separately most likely will result in paying more taxes, a Court might view this as “wasteful”.  If you are unsure and want to file a separate return, you or your attorneys should request the Court’s permission to file a separate return.  In that application, you should be prepared to inform the Court on the monetary difference between filing a joint return and two separate returns.

If you have children and you are going to file two separate tax returns, you need to determine who is going to claim the children as an exemption (also known as a deduction).  Each exemption could be worth thousands of dollars.

Since each person’s financial situation is different, before making the decision on whether to file a separate or joint tax return, it is imperative that you talk to an accountant (or other tax professional) before filing your taxes.  You also need to inform your divorce attorney on what you want to do.

If you are seeking a divorce and have questions on your taxes, then call David Badanes and the Badanes Law Office at 631-239-1702, email at david@dbnylaw.com or visit our website at www.dbnylaw.com.

The Badanes Law Office main office is in Northport, Suffolk County and he has a satellite office in Uniondale, Nassau County.

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Divorce and Rising Gas Prices

Every day, it seems that gas prices are getting higher and higher.  Even, if gas prices go down a bit, it is likely that in the future, the price you pay for gas is going to be more than the price you paid more than a year ago.

How does inflation or the rising price of gas affect your divorce?  For example: What if you have been divorced for several years, can you request additional child support or additional spousal maintenance (alimony) due to the increase in the cost of living?  What if you are the parent responsible for transportation expenses, are you able to get a modification of your child support obligation?

Whether or not inflation will be a basis for obtaining a change in child support depends on a few factors.  Typically, you have to show that the cost of living has gone up by more than 10% (since the time your order went into effect or the last time it was increased).  If your child support order is through the Support Collection Unit, then they will typically automatically compute whether or not there has been more than a 10% increase in the cost of living.  When the cost of living has increased by more than 10% (cumulatively), the Support Collection Unit, will also automatically increase the amount of child support that you either have to pay or that you receive.

However, if your child support order is not through the Support Collection Unit, then it is up to you to demonstrate to the Court that the cost of living has increased by more than 10%.  You would have to file a petition to Family Court to get an increase in child support.

Since gas prices are just one component of inflation (or the cost of living), increased gas prices, by themselves, may not be sufficient for obtaining a modification of child support, spousal maintenance or for transportation expenses.

Another basis to obtain a change in your child support is to show that the child support order is more than three years old.  Here, you might be able to get an increase (or decrease) in child support, simply because the last change is more than three years old.  If your child support order is more than three years old, then even if the cost of living has increased less than 10%, then you may be able to get an increase in child support.

In summary, no one likes paying more for gas, however, the increase in the price of gas may not be enough to qualify for a change in your child support or spousal maintenance.

David Badanes and the Badanes Law Office provides real world advice and can help you in your divorce.  If you need an experienced divorce attorney, then call David Badanes and the Badanes Law Office at 631-239-1702, email at david@dbnylaw.com or visit our web site at www.dbnylaw.com.

The Badanes Law Office main office is in Northport, Suffolk County and he has a satellite office in Uniondale, Nassau County.

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The Three Most Important Things to Know About Your Contested Divorce Case

If you are involved or going to be involved in a contested divorce, you need to know the three most important things about your case.

#1: Always follow the Court’s Orders: In a contested divorce, the Court – meaning the Judge – will probably issue various Orders. It is imperative that you follow the Court’s Orders. Every Judge wants their Orders to be followed. Disregarding a Judge’s Order will almost always get you “in hot water”. You could be held in contempt, face court fines or pay your spouse’s attorney’s legal fees.

#2: Never argue with the Judge: If you disagree with what the Judge is saying or doing, arguing in Court will typically make things worse. Let your attorney argue for you. You can certainly let your attorney know that what the Judge is saying or doing is “wrong”. The Court is used to a divorce attorney advocating (arguing) for your benefit. However, it is a rare Judge that wants to hear a party arguing themselves. Even, if you are representing yourself, although you may present your facts and legal arguments, arguing with the Judge is still not recommended.

#3: Consistently being late to Court or not going to Court at all. If you are required to be in Court (or in a virtual session), then you must: (i) attend; and (ii) be on time. No Judge wants to be waiting for you to arrive or told that you will not be arriving (unless you have a very good reason).  Even worse, if you are consistently late or absent, the Court can impose sanctions and penalties on you. Show up and be on time.

During a divorce, it is important to make sure that you follow the Three Things in this blog. Not following court orders, arguing with the Judge and/or being late will only hurt your case and worse, can lead to fines and for you to pay your spouse’s attorney’s fees.

If you are seeking a divorce, then call David Badanes and the Badanes Law Office at 631-239-1702 or email at david@dbnylaw.com.  The Badanes Law Office main office is in Northport, Suffolk County and has a satellite office in Uniondale, Nassau County.

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How An Order of Protection Affects A Divorce Case

An Order of Protection, also known as a Restraining Order, may be issued against you or your spouse before or during a divorce. An Order of Protection can affect your divorce case in many ways.

In New York, an Order of Protection can be a criminal matter or a civil matter. If it is a criminal matter, the case will be prosecuted as a crime and the District Attorney’s office will most likely serve as the prosecution. As with any criminal case, the District Attorney has to show that you committed the crime by the standard of “beyond a reasonable doubt.”

In contrast, if the case is a civil matter, then the burden of proof is “preponderance of the evidence”, which essentially means that you prove your case by greater than 50%. Another difference is that there is no District Attorney who prosecutes the case. If you are the accuser, you either have to hire an attorney or you can prosecute the case yourself.

There are also two types of penalties granted in an Order of Protection, they are: (i) a “Refrain From” action(s); and (ii) ‘Stay Away”.

A Refrain From will state what actions or laws you should “refrain from”. Typically, a Refrain From order will state that you are to refrain from harassment, disorderly conduct, assault and a whole litany of other illegal acts.

A Stay Away Order will typically order you to stay away from the residence of the victim, the victim’s employment and other places the victim usually is.

Obviously, if a Stay Away Order is granted and you have to move from one residence to another, this could have profound consequences in your divorce. Not only will you need to find alternate housing in addition a court can take into account domestic violence (i.e. the Order of Protection) in its award of spousal maintenance and child custody.

Although, a Refrain From Order does not automatically result in relocation, it also has serious consequences. If you violate a Refrain From Order, then you could be immediately arrested and face imprisonment and fines. Similar to a Stay Away Order, the court can take into account the Refrain From Order in its award of spousal maintenance and child custody.

David Badanes, Esq. and the Badanes Law Office have helped many individuals who have been a victim of Domestic Violence or who have been falsely accused of Domestic Violence.

If you need a Long Island divorce attorney to help you navigate through a Domestic Violence case and your divorce, then 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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Why Adultery Can Still Matter In A Divorce

Since, 2010, New York has been a no-fault divorce state. This means, that for the vast majority of divorces, you do not have to allege any grounds (meaning reasons) why you want to get divorced.  Prior to this law, one of the most common grounds that was cited was adultery. Now, it is extremely rare for adultery to be stated as one of the grounds for your divorce. However, there are a few exceptions to this general rule.

One of the main exceptions, is if there is a pre-nuptial or post-nuptial that states that if a spouse commits adultery, then the other spouse may get more assets or more maintenance. This would be a very good reason why you would need to cite adultery as one of the grounds.

Indeed, in a recent case, this is exactly what happened. The parties had a post-nuptial agreement, that stated if the husband engaged in adultery, that he would have to give to the wife 80% of all the marital assets. When filing for divorce, the wife made sure to state adultery as one of the causes of divorce.

There are two other main areas where adultery can still matter. First, if the adulterous spouse spent large amounts of money on the “other person”, then this may be deemed to be wasteful spending and the innocent spouse may be entitled to monetary compensation. For example, if the spouse took the “other person” on an expensive vacation, the amount of money spent on this vacation would most likely be considered wasteful spending.

Adultery can also matter when it comes to the amount of spousal maintenance that is awarded.  In considering the amount of maintenance, a court can take into account if a spouse had an affair. Although, this is technically available, most courts do not take into account adultery when setting the amount of spousal maintenance.

It is also important to know when adultery does not matter. In deciding child custody, whether or not, one spouse committed adultery, will have little to no effect on which parent gets custody or the amount of time that a parent gets with a child.

David Badanes, Esq. and the Badanes Law Office, P.C. provide real-world advice to help you through this challenging time. If you suspect that your spouse has committed adultery, contact the Badanes Law Office to see what your rights are.

If you are contemplating getting a divorce on Long Island, and need an attorney to represent you, 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 Uniondale, Nassau County.

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