What Happens to the Mortgage in a New York Divorce?

What happens to the mortgage on your home (or other real property) in a New York Divorce?  There are a few possible answers to that question.

Possibility No. 1:  Nothing – although relatively rare, the mortgage can remain the same, with no changes.  However, even here, the fact that “nothing” is changing would still require appropriate language in the divorce settlement agreement to reflect this fact.

Possibility No. 2:  Paid off by one or both parties:  this is typically what occurs.  Either one party pays off the mortgage or the real property (house) is sold and the mortgage is paid off by the sale of the house.

Possibility No. 3:  Assumed by one of the parties:  Here, one of the parties “assumes” the mortgage and takes over paying the entire mortgage.

If there is a mortgage on your marital home, then how that mortgage will be paid is just one of many questions that have to be answered in your divorce.

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.

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

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Divorce Mediation: Advantages and Disadvantages

The following are the advantages and disadvantages of divorce mediation.

Advantages:

Less Expensive: As long as your mediation “works” (see below for disadvantages), then mediation is almost always less expensive than a contested divorce. This is because instead of each spouse having their own attorney and paying that attorney, there is only one mediator to pay. Furthermore, the mediator’s hourly rate is most likely less than a typical attorney.

Less Time: Divorce mediation will typically be a much faster process than going to court. Most mediations are done within two to three months.

Less Stressful: Most divorcing couples experience a lot less stress in using a mediator than hiring their own attorneys. With mediation, the couple is working together to create a divorce agreement. In comparison, in a contested divorce, the couple is working against each other.

More Creative: In mediation, a good mediator will be able to present more creative solutions to the issues faced in a divorce.

More Control: In mediation, you and your spouse have more control over the process. With the mediator’s help, you decide how the divorce process will proceed and as stated above, you can be more creative in solving the issues of the divorce.

Disadvantages:

Potential to be More Expensive: If your mediation “fails”, then you have spent money on the mediator and now have to spend money on attorneys. This most likely will make your overall divorce process more expensive.

Must be Willing to Compromise: If one or both parties are not willing to compromise, then divorce mediation will not work. When using a mediator, both parties must be able to compromise and discuss issues rationally and amicably.

Not For Alcoholics, Drug Abusers: Most mediators will tell you that if one or both parties are an alcoholic or abuse illegal (or prescription) drugs, that mediation most likely is not the proper forum for your divorce.

Not For Domestic Violence: Similarly, if there is domestic violence, then mediation most likely will not work.

Not For Complicated Cases, High Income Couples: If your divorce is one where the parties earn a high income or is a complicated case, then mediation most likely will not work for you.

In addition to being an attorney, David Badanes, Esq. is also a mediator and has helped numerous couples in mediation sessions. If you want a mediator, then call David Badanes at 631-239-1702 or email at david@dbnylaw.com.

David Badanes typically conducts his mediation in his Northport office; however, mediation is also available in Uniondale and virtually.

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What Does New York’s “No Fault” Divorce Law Mean?

In 2010, New York enacted its “No Fault” Divorce law.  Here is what you need to know about New York’s “No Fault Divorce Law”.

Before the 2010 law was passed, in order to get a divorce, you needed to show that your spouse was “at fault”.  This meant that you had to “prove” that your spouse did “something wrong” (this is also called “grounds for a divorce”). This sometimes meant that you could not get a divorce because you could not convince a Judge that there were “grounds” for your divorce.

With a “No Fault” divorce, you do not need to prove grounds, all you have to do is state you want a divorce and you will get a divorce. In other words, it does not matter “why” you want a divorce and you do not have to prove “grounds” or that someone was “at fault”. However, not so fast, before a court can grant a “no fault” divorce, you still have to resolve the following issues:

Since the law was passed, virtually every divorce is now a “no fault” divorce.  Although, you have the right to state “grounds” in your divorce (for example, adultery or cruel and inhuman treatment), most Judges will want to resolve your divorce with the “no fault” divorce law.

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.

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

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Can I Force My Ex-Wife to Lose My Last Name?

In many marriages, typically the Wife has taken on the last name of the Husband. In a divorce, the Wife has the opportunity to revert back to her maiden name. However, I am often asked in the Husband can force the Wife to stop using his last name and force her to go back to her maiden name.

The answer is “No”. The Wife, is she chooses to do so, may keep her current last name and does not have to go back to using her maiden name.

David Badanes, Esq. and the Badanes Law Office, P.C. provides real-world advice to help you through this challenging time. If you are contemplating getting a divorce, and need a divorce attorney to represent you, call David Badanes and the Badanes Law Office today at 631-239-1702 or email at david@dbnylaw.com. The Badanes Law Office has offices in Northport, Suffolk County and Uniondale, Nassau County.

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What Kind of Questions Might the Judge Ask at a Contested Divorce

In a contested divorce, before there is a trial, typically, there would be several court conferences.  At each of these conferences, it is possible, that a Judge might ask you some questions. Most likely, you would be under oath when answering these questions. If there is a trial, sometimes a Judge will ask a clarifying question to the witness. Again, you would be answering these questions under oath.

Here is a summary of the types of questions you might be asked, either during a court conference or at a divorce trial.

  • Clarification: If you state something and the Judge is needs to clarify your answer or statement. A Judge may ask you to clarify your answer/statement.  For example, if you stated that you worked in New York City, the Judge may ask you what Borough you worked in.
  • Further Information/Explanation: If your answer contains information that a Judge is not familiar with, the Judge may ask you to explain your answer. For example, if you state that you work with “magnetic medical devices”, the Judge may want to know more information about exactly what you do.
  • Instruction/Speak up/Don’t answer the question or You must answer the question: This is not really a question, but an instruction. If the Judge can’t hear you, they may ask you to “Please speak up”. If you answer a question with a “shake of the head” or  “mmm”, the Judge may tell you to please answer the question with a “Yes” or a “No”.  If there is an objection, then the Judge may instruct you to either “Answer the Question” or “Don’t Answer the Question.”

In general terms, you should not be afraid of what a Judge may ask you.  A Judge is not there to cross-examine you or to ask you a question to demonstrate that you are lying. Indeed, most Judges may not ask any questions at all.

If you are getting divorced, there can be lots of stressful situations. One of those situations, is going to Court. David Badanes and the Badanes Law Office can help prepare you for Court and for what happens in Court. If you need an experienced contested divorce attorney, then call David Badanes.

For more information, call the Badanes Law Office, P.C. at 631-239-1702 or email at david@dbnylaw.com. The Badanes Law Office has offices in Northport and Uniondale.

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Why You Should File First In A Divorce (And Why You Should Not)

Most couples know that their marriage is failing. One or both spouses are probably considering filing for a divorce. There are several reasons why you should file first in a divorce and there are also reasons why might want to wait for your spouse to file.

The following are the reasons why you should file first in a divorce.

  1. Preparation: If you are thinking of getting a divorce, then this is also the time to start planning for the divorce. This is the time to start seeking out an attorney. This is the time to start gathering your financial documents. This is the time to consider the financial implications of the divorce. By filing first, you probably have had the opportunity and time to prepare for the divorce.
  2. Reduces the chance of being “kicked out of the house”: If you file first, this will reduce the chance that you will be “kicked out of the house” or removed from the house due to a false allegation of domestic violence. Unfortunately and unethically, some spouses prior to a divorce being filed will file for an Order of Protection based on false allegations. However, if a divorce has been filed prior to an Order of Protection, it is typically harder to be removed from the marital home due to a false allegation of domestic violence.
  3. Choice of County: Although it is not that common, if the two spouses are not living together and they are living in different counties, then you get to choose which county to file in. You might want to file in a different county based on what your attorney has informed you about how cases are typically handled in that county.
  4. You set the “cut-off” date: Once a divorce is filed, then typically that sets the cut-off date for the acquisition of marital assets and also the acquisition of marital debts. It also sets the cut-off date for retirement assets.

Now, here are some reasons why you might want to wait and let your spouse file first.

  1. Easier to get an Order of Protection Before a Divorce is started. If there is domestic violence, it may be easier to obtain an Order of Protection before you file for a divorce.
  2. You get to delay the “cut off” date: Although, typically it is better to have an earlier cut-off date than a later one, sometimes it is beneficial to delay the cut-off date. By delaying filing for a divorce, you delay the actual cut-off date.
  3. Save on Court fees: The person who files first has to pay the first filing fee (currently $210.00), that person may also have to pay the bulk of the rest of the court fees, which can range from about $400 to many thousands.

If you are unsure of whether or not to file first in your divorce, then contact David Badanes, Esq. today. David Badanes, Esq has the experience to guide you in your divorce.

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

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Do You Have To Split Your 401(K) In A Divorce?

If you have a 401(K), then most likely some or all of the funds in those accounts are considered a marital asset and your spouse is entitled to his/her marital share. So, the short answer is “MOST LIKELY YES”, a 401(K) is a marital asset that has to be shared.

While you are married, any funds that you accumulate in a 401(K) account are considered a marital asset. However, as with any asset, instead of splitting the 401K account, the parties can decide to waive those funds or substitute the amount owed with some other assets of equal value.

When getting divorced, a 401(K) account is analyzed as follows:

#1: Did the 401(K) account exists prior to the marriage date?

#2: If the answer to #1 is “NO”, then all the funds in the 401(K) are considered marital funds.

If the answer to #1 is “YES”, then the next question is: “Is there any documentation or evidence that demonstrate how much was in the 401(K) account at the time of the marriage (or close to the marriage date)?

If you can demonstrate how much was in the 401(K) account at the time of the marriage, then those funds are considered that person’s separate property and are excluded from the other spouse.

If you can NOT demonstrate how much was in the 401(K) account at (or around) the time of the marriage, then all the funds in the 401(K) account will be considered a marital asset.

#3: The “cut-off” date – meaning the date that any NEW monies/funds in the 401(K) account will no longer be considered a marital asset – is either: (i) the date the divorce was started; (ii) the date that a separation agreement or other agreement sets as the “cut-off” date; or (iii) by selecting a different date in the divorce agreement.

#4: The funds or monies that accumulated in the 401(K) during the marriage and before the “cut-off” date are absolutely considered marital funds. 

Once you know how much of the funds in the 401(K) are considered marital funds, then each spouse is entitled to 50% of those marital funds. Most of the time, each spouse will take their share and the funds will be split between the parties. In some cases, instead of splitting the funds in the 401(K) account, another asset can be used to substitute for the amount of funds in the 401(K) account. However, it is important to remember that the funds in the 401(K) account are worth less than the current value in the account. This is because the funds in the 401(K) account have a taxable component.

The bottom line is that YES, you most likely have to split the funds in your 401(K) account.

David Badanes and the Badanes Law Office have helped their clients in deciding how to handle their 401(K) accounts in their divorce. 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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Ten Tips for Testifying in A Divorce Trial

Most divorces do not actually go to trial. Indeed, it is estimated that in New York, only about 5% of cases actually go to trial, the rest of the cases will settle – although, some of those cases will settle AFTER a trial has started BUT before the trial has ended.

If you do have to testify in court, here are ten tips:

#1 Prepare: You and your attorney should prepare for your testimony. This means going over the topics. Each divorce attorney has their own method of preparation. However, most attorneys will give you an idea of the types of questions you will be asked.

#2 But, Do Not “Over-Prepare”:  If you “memorize” your answers to the point where it looks like you are reading from a script, then the Judge may discount your testimony as “over-coached.  You do not want to sound like a “robot” or a “recording”.

#3 Answer the Question – do not volunteer information that is not asked: When asked a question, you do not want to volunteer information that is not necessary. For example: if asked “What was your income last year?” The answer should be something like: “I made $80,000 last year.”  Your answer should NOT be: “I only worked part-time last year, so I only made $40,000.00.” The question did not ask you if you worked full-time or part-time, so you volunteered information that was not necessary to answer the question.

#4 If you hear an Objection – stop talking: Once you hear an attorney say “Objection” – stop talking – even if you are in the middle of answering a question. Let the Judge rule on the Objection and tell you whether you need to answer the question or you can ignore the question as the Objection was “sustained”.

#5 Try not to say “always”, “never” or “every”:  In every-day conversation, it is easy to state terms like “always”, “never” or “every”, but, when testifying, it is extremely rare that you do something 100% of the time or 0% of the time. For example, if you testify that “Yes, I always pick up our children after school”. If another person even picked up your children once, your statement is not 100% accurate. It is better to state something like this:  “Yes, I almost always pick up our children after school.”  Or “Yes, I would pick up our children most every day, once in a while, my spouse would also pick them up from school.”

#6 Tell the truth: Although, this is obvious, Judges are very good at determining if you are not telling the truth. You do not want to look evasive in your answers.

#7 Do not get Angry (or lose your temper):  Many times, the attorney for your spouse will try to get you angry. Do not fall for this trap. Always answer every question calmly. In addition, never argue with your spouse’s attorney. If you get angry on the witness stand, the Judge is going to believe that you must get angry when you are home.

#8 Do not answer a question with “wrong facts”:  Sometimes your spouse’s attorney will ask you a question that contains a fact that is wrong.  For example: “On May 1st, last year, you had a fight with your spouse, what happened?” Even if you had a fight with your spouse, but, it did not occur on May 1st, you can then answer this question by saying: “No we did not get into a fight on May 1st”.

#9 Look the attorney (or Judge) “in the eye”:  When an attorney or the Judge asks you a question it is important to look that person “in the eye” (straight on). Even if you have to turn your head.

#10 It is OK to be nervous:  Judges know that testifying is something that is new to you and not something you do every day. It is ok to be nervous, however, you do not want to look like you are being evasive in your answers.

If you believe that your divorce will go to trial, then you need an experience trial attorney. David Badanes has conducted several trials and hearings. Mr. Badanes makes sure that you are prepared for trial. For more information, call the Badanes Law Office, P.C. at 631-239-1702 or email at david@dbnylaw.com.  The Badanes Law Office has offices in Northport and Uniondale.

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Your Spouse’s Cell Phone Is Off Limits

You may know that if you open your spouse’s mail, without their permission, that you are committing a Federal crime.  Similarly, if you open up your spouse’s cell phone, without their express permission, you also may face criminal or civil charges.

This means that if your spouse has not given you express explicit authority to search through their cell phone, then you can’t use anything you might find on that cell phone.  Therefore, even if there is incriminating evidence on your spouse’s cell phone, you probably cannot use it as evidence. So, if you want to present evidence that exists on your spouse’s cell phone, you need their permission, otherwise a Court will not allow it.

Another reason you should not use your spouse’s cell phone, is that if a court finds out that you have been impermissibly using your spouse’s cell phone, then this would have serious negative consequences on your divorce.

Therefore, if you are in the process of getting a divorce, or you are already divorced, you should not use your spouse’s cell phone records.

David Badanes, Esq. and the Badanes Law Office, P.C. represent clients on Long Island, NY in their divorce and family court matters. If you are seeking a divorce, or have been served with divorce papers, please contact David Badanes.

David Badanes has offices in Suffolk County and Nassau County.  To make an appointment or to learn more, 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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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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