I Want a Divorce but My Spouse Doesn’t

You may want a Divorce, but your spouse does not. What can you do? New York State is a “No Fault” Divorce State, so, you can get a divorce with or without your spouse cooperating or “wanting” the divorce.

The first step in starting the divorce process is to file a Summons and Complaint (or in some instances, you can file a “Summons With Notice” and then subsequently file the Complaint). Then the Summons and Complaint must be properly served upon your spouse. The key is here is that you must have “proper service”. This means you cannot just give the Summons and Complaint to your spouse. It is highly recommended that you hire an experienced process server to serve the Summons and Complaint upon your spouse. If you hire an attorney, your attorney will most likely handle the entire process of filing the Summons and Complaint and also making sure it is properly served upon your spouse.

What if my spouse states that he/she will not respond to the Summons and Complaint?

Technically, your spouse does not have to respond to the Summons and Complaint. However, if your spouse does not respond to the Summons and Complaint, then you can still get divorced. You would request that the Court give you a default divorce. Your attorney will know how to make sure that you make the request for a default divorce correctly.

In the process of granting a default divorce, the Court will schedule a special court hearing called an “Inquest”. At the Inquest, your attorney will present evidence that your spouse was properly served and will also present the basic facts of your divorce. If applicable, you will be able to make a request for child custody, child support, alimony, distribution of assets and the payment of debts as well of all the other issues of your divorce. In general, terms, since your spouse has not responded to the Summons and Complaint, the Court will grant most of your requests.

The bottom line is that you can get a divorce regardless of whether or not your spouse also wants the divorce.

If you are contemplating getting divorced and believe that your spouse does not want the divorce, 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, even if your spouse doesn’t want the divorce.

Divorce, Judges and Court – What You Need to Know

If you are getting divorced, unless your case is a simple “uncontested divorce”, then a Judge will be assigned to your case and you will need to go to Court. You may even have to go to trial. Therefore, it is important to know what the Judge’s role is and what you need to know when you go to Court.

  1. What Does a Judge Do? Unlike a criminal case, in a divorce case, a Judge does not find you “guilty”, “innocent”, or sentence you to jail (unless they find you in contempt of court, more on that later).


    Before there is a divorce trial, typically there will be many court conferences. Although every Judge handles their court conferences differently, in general terms, at a court conference, the Judge determines the basic facts of the case. Also, before a trial, there may be temporary orders or decisions that apply while the divorce case is pending. A typical example is a temporary order of child support.

    Sometimes, a Judge will tell the attorneys their general feeling about the case. Although these are not formal rulings, your attorney will be able to know which way the Judge is leaning towards and guide you accordingly.

    If there is a trial, the Judge will hear the evidence, rule on any objections and sometimes ask the witness some of their own questions. At the end of a trial, it is extremely rare for a Judge to issue a ruling. Instead, the Judge will compare his/her notes and consider the evidence. The Judge will issue a written decision which is usually mailed to the attorneys.

    As mentioned above, a divorce case is not a criminal case. However, if you disobey a Judge’s Order or act in such a manner that causes you to be in “contempt”, then it is possible that a Judge could find you in “contempt of court” and in extreme cases, decide that you should be in contempt.

  2. Dress Appropriately. What you wear to Court will impact how a Judge sees you. If you are claiming that you do not have any money or resources, then you should not be wearing expensive jewelry or thousand-dollar suits. In contrast, if you are someone who does earn a good income, then going to Court in old pants and a ripped shirt, will make the Judge know that you are not telling the truth. Generally, you should wear “business casual” attire and not a lot of jewelry.

  3. Don’t Interrupt the Judge. When the Judge speaks, you listen. If the Judge asks you a question, then answer the question. Sounds simple enough, but, I’ve seen clients who talk over a Judge and I’ve seen clients who don’t directly answer the Judge’s question. If a Judge asks you a question, typically keep your answers short and to the point. Your attorney can always expand upon your answer.

  4. Don’t Waste the Judge’s Time. A Judge will have hundreds of cases. Do not bring frivolous issues or simple disputes to the courtroom. A Judge does not want to be bothered with something that should be worked out between divorcing couples. A good example is what to do with your personal property (furniture, TVs, computers, clothing). Most Judges do not want to be bothered with dividing up personal property. They expect the clients to be able to divide the personal property in a fairly equal manner. Of course, there are exceptions to this rule. If you have expensive jewelry, art collections, sports collections or other things of value, a Judge may have to decide how those items are divided up.

  5. Be Prepared, but, Don’t Be Like a Robot: If you are going to trial, then you need to be prepared. Your attorney will review your case with you. However, when you are a witness, you do not want to look like you have memorized your answers or look like a robot when answering your questions. Most clients are very nervous when they are on the witness stand. That is to be expected, and a Judge will understand that you are nervous. In contrast, if you look like you have memorized your answers, a Judge may hold that against you.

  6. Do Not Lie. This may be the most important rule. If a Judge catches you lying or believes that you are either lying or not telling the whole truth, this could ruin your whole case. It is much better, to tell the truth — no matter, how damaging it might be — then to lie.

  7. A Judge will be one of the most important parts of your divorce matter. Each Judge handles their divorce cases differently. David Badanes and the Badanes Law Office, P.C. has extensive experience with all the Suffolk County and Nassau County Judges. Mr. Badanes is well respected and knows that the Judges what an attorney who is honest and does not waste their time. If you are contemplating a divorce or just served divorce papers call David Badanes at 631-239-1702.

What To Do When Divorcing in the New Year

The start of a New Year is typically when many couples will file for divorce. If you are going to start the process of a divorce or if you have just received divorce papers, here are a few “To-Dos” to make sure you are properly prepared.

  1. Create a Budget: Although a divorce may be better for your mental health and also make you happier, in almost every divorce, it costs more to live separately than to live together. To help you prepare, you should create a budget. There are many budget worksheets that you can obtain for free. Having a budget will help you realize how much you will need and perhaps what expenses you can either reduce or eliminate.
  2. Gather and Organize Important Documents: Start getting all your important financial documents, including your bank statements, tax returns, W2 statements, retirement statements and credit card statements. Your attorney will need these statements. Most attorneys will accept electronic (pdf) copies, so you probably do not have to print out your statements.
  3. Get Your Credit Report: A Credit Report will help you identify your credit history, loans, and credit cards. You may discover that your spouse has been using your credit cards or taking out loans in your names. You should be able to obtain your credit report for free as there are a few websites that offer this service.
  4. Start Researching Attorneys Now: If you don’t have an attorney or don’t know one, you should start researching divorce attorneys now. Since so many couples choose to get a divorce in January, many divorce attorneys are very busy in January. Do your research as soon as possible and be flexible when you can meet your attorney.
  5. Find a Therapist/Counselor: Too many people make the mistake of using their divorce attorney as a therapist or counselor. A divorce attorney is not trained to be a therapist or counselor. In addition, it will cost you a lot less to see a therapist than to call your attorney for therapy.
  6. Make a List of Your Goals: Are you seeking sole custody? Joint custody? Are you looking to sell your house? Move out of your house? Do you want to retain your retirement assets? These are just a few of the goals that you may want and that your attorney will need to know.

If you will be seeking a divorce in the New Year or you have just been served with Divorce Papers (Summons or Complaint), then contact David Badanes at 631-239-1702.

Preparing to File for Divorce in the New Year

The end of the year is a common time for unhappy couples to start thinking about divorce. People in troubled marriages may think of the new year as having a fresh start. Although you are looking to file for divorce after January, there are some things you can do to prepare for divorce that will make the process smoother.

  • Know your Debts: Make a list of all the debts that you have. This would include credit cards, mortgages, car loans, student loans, personal loans and any other debts you might have. Make sure you include both “your” debts, your “spouse’s” debts, and any joint debts.
  • Know Your Assets: Know your assets and make a list of the same. Most divorces will require you to fill out a document called the “Statement of Net Worth”. The Statement of Net Worth is similar to a budget statement. When considering your assets, make sure to include:
    1. Real Estate (both your primary home and any vacation homes)
    2. Cars
    3. Financial Accounts: i.e.: Checking, Savings, Money Market Accounts, CD’s.
    4. Stocks, Securities, Mutual Funds
    5. Pension and Retirement Accounts: i.e.: 401(k), IRA, Profit Sharing, etc.
    6. Life Insurance
    7. Business Interests
    8. Personal Property: i.e.: Art Work, Jewelry, valuable collections
  • When making your list of assets, try to determine their value and if you are claiming them as joint or separate property.
  • Gather and Organize Important Documents: Important documents include tax returns, W2 Statements, and Banking Statements.

David Badanes and the Badanes Law Office, P.C., have represented countless clients in their divorces. If you have questions regarding filing for divorce, contact David Badanes at 631-239-1702.

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Why You Should File for Divorce BEFORE the New Year Starts

In December, for those persons considering to file for a divorce, many times they will wait until January to file. However, there may be a good reason why you should file before the New Year starts.

It is important to know, that you can file in December, and you do not have to serve your spouse in December. You can file in December and then wait until January to serve your spouse with the divorce papers. In this manner, you get the benefit of filing early, yet, you do not have to upset the holiday season.

What are the potential benefits of filing in December and before the New Year:

  1. Debts: For most debts, the amount of marital debt that is considered is determined as of the date of filing. The most common example is credit card debt. Credit card debt is a joint marital debt. So, no matter whose credit card it is, you most likely will owe 50% of the amount of credit card debt that existed as of the date of filing for a divorce. Once, you file for divorce, you most likely will not be responsible for any additional credit card debt that is incurred after the date of filing. Of course, there are many exceptions to this rule, but, you may benefit from filing in December to freeze the amount of credit card debt you are responsible for.
  2. Valuation of Assets: The valuation of assets almost always changes. Whether or not an asset has a higher or lower current value may benefit you. You may want to file early to “lock-in” the valuation of an asset.
  3. Changes in Income: When determining child support or spousal maintenance (alimony), the starting point is last year’s W2 or income. So, if you file in December, you first look at last year’s W2. If your income is less last year than this current year, you may benefit from filing in December.

David Badanes and the Badanes Law Office, P.C., have helped numerous clients in determining whether or not to file in December or in January. If you are contemplating getting a divorce or if you have been served divorce papers, contact David Badanes at 631-239-1702.

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Common Lies Told During a Divorce

Here are some common lies that you may hear during your divorce.

LIE: You can’t make me move out of the house

In New York, as part of the divorce process, the Court will determine who can stay and who has to move out of the house (or apartment). This may happen at the end of the divorce or at some point during the divorce. If there is domestic violence, then you may be able to get a Court order immediately removing your spouse from the house. Even, if there is no domestic violence, as part of the divorce, the Judge can order the sale of the house or that one spouse “buys-out” the other spouse’s interest in the house. At some point, the Judge will order that one spouse has to leave the house. So, yes, a spouse can be made to “move out of the house.”

LIE: I will ignore (or not accept) the divorce papers, so you can’t get divorced

Although your spouse can ignore (or not accept) the divorce papers, you can still get divorced. Your attorney (or you) can petition the Court that your spouse is ignoring the divorce papers (that is your spouse is not responding to the Summons or other divorce documents). In New York, if your spouse ignores the Summons or divorce papers, then the Court can conduct what is called an “inquest.” At the inquest, the Court can grant you a divorce.

LIE: I will not pay you any child support

Technically, this could be true. However, if you are awarded child support, there are many ways you can try to get payment from your spouse. Most of the time, there are ways to find money and payment from your spouse. Yet, if your spouse does not have an “on the books” job and has hidden all of his/her assets, then they may be able to not pay you any child support. This is typically very rare. If your spouse does not pay child support, then the Court can hold the person in contempt and your spouse can be imprisoned for failing to pay child support. Many times, right before facing imprisonment, your spouse will come up with the amount of child support that is owed to you. If the spouse still refuses to pay child support, then they can go to prison. So, technically, your spouse does not have to pay child support, but, they will face serious consequences.

LIE: You have no money, so you can’t afford an attorney

In New York, the spouse who earns all the money can be ordered to pay most, or even all, of your attorney’s fees. If you are a stay-at-home-parent and have no income, your attorney can immediately petition the Court to have your spouse (who does have income) to pay your attorney’s fees. Therefore, the fact that you have no money does not automatically mean that you can’t hire or afford an attorney.

LIE: If you divorce me, you will never see the children

It is extremely rare that a Court will determine that a parent has no rights to see the children. In certain situations, a Court may order “supervised visitation”, which means that the parent must be properly supervised when the parent sees the children. Even if a parent is in prison, a court can order you to bring the children to visit the imprisoned parent.

As for the parent “kidnapping” the children, despite what you see on the news, this is also extremely rare. For the few times that a parent does attempt to kidnap the children, they are caught virtually every time.

If you are not sure what to believe when you are going through a divorce and need an attorney, contact David Badanes and the Badanes Law Office, P.C.

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Top Five Divorce Tips For Men

The following are the top five divorce tips for men. Remember, this is general advice, as each divorce is different.

#1: Don’t move out of the house.

Before moving out of the house, you should consult with an attorney. Generally, it is much better for you to keep the status quo and remain living in the same house as your spouse. Even, if you sleep in the basement, on the couch or in a different room, it is usually better to remain in the house then to move out. Of course, if there is a Court order forcing you to move out, then you must abide by the Court order.

#2: Don’t lie about your finances.

As part of the divorce, you will most likely complete what is called the Statement of Net Worth. The Statement of Net Worth is similar to completing a budget, but, you include information about assets and debts as well as your monthly expenses. If you “lie” on the Statement of Net Worth or on any other part of your finances, then you will face serious consequences.

#3: Focus on the big issues.

During a divorce, sometimes it can be easy to get caught up in a minor issue or event. Your time and efforts are better spent focusing on the major issues of your divorce.

#4: Listen to your attorney.

If your attorney tells you something, then listen to their advice. Disregarding your attorney’s advice will almost always put you at a disadvantage or in making a bad decision.

#5: Be careful when consulting with your friends or family (even if they are an attorney).

Your friends and family mean well. They may tell you that in their divorce they got something and you should get the same thing. Divorce laws are always changing and even if there is not a formal change in the law, the Judge’s attitudes and decisions are also changing. Even if your friend/family member is an attorney, unless they are a matrimonial attorney, they may not know the nuances of divorce law. Before following your friend’s or family’s advice, ask your attorney if that is good advice.

David Badanes and the Badanes Law Office, P.C., give commons sense and everyday advice to help you through your divorce. If you are thinking of filing for a divorce or you are going through a divorce, contact David Badanes and the Badanes Law Office, P.C.

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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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