Who Gets The House In A Divorce?

You and your spouse are getting divorced and you own a house.  Who gets to own the house after the divorce?

Neither spouse has “better” rights to the house.  However, there are a few factors that may decide who gets to live in the house, before it is owned by either party.

Children:  If you have children and one spouse is granted custody of the children, then it is possible that spouse may also be allowed to live in the house for a few years (usually until the children graduate high school).  This is a complicated situation and if this is your situation, you should seek more information from your attorney.

Was the House Bought Before Marriage:  If the house was bought before marriage and the house is considered that spouse’s “separate property”, then that spouse will almost always be given the right to retain ownership of the house.

By Agreement:  In most situations, the divorcing couple reach an agreement on who will get to own the house after the divorce.

All other situations:  If you don’t fit into any of the above categories, then the Court will have to decide who gets the house after the divorce.  In virtually all of those situations, the Court will state that the house has to be sold to a third-party and neither spouse gets to keep the house.

For many divorcing spouses, their house is their greatest asset.  If you are getting a divorced and have questions about your house and the divorce, then call David Badanes, Esq. and the Badanes Law Office, P.C.  David Badanes and the Badanes Law Office, P.C. have helped countless divorcing couples.

If you need a divorce attorney to represent you, then 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 and in Nassau County.

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In New York: What Is The Difference Between Supreme Court And Family Court

In New York, there are several layers and several different types of Courts.  This article will give an explanation of the differences between Supreme Court and Family Court.

Supreme Court:  Unlike many other States and unlike the Federal Government, in New York, the Supreme Courts are not the highest Courts.  Instead, New York Supreme Courts are generally one of the “lowest” Courts, and is the trial court of New York.  The New York Supreme Courts, generally handle: (i) Civil litigation cases; (ii) Divorce cases; (iii) Real Estate Disputes; (iv) Disputes against government agencies; and (v) other general cases.

As it pertains to “family” matters, New York Supreme Courts is the Court that handles all divorce cases.

Family Court: Will handle the following kinds of cases: (i) for unmarried couples: child custody disputes and child support disputes; (ii) non-criminal orders of protection; (iii) adoptions; (iv) child abuse and other child protection type cases; (v) spousal support cases; (vi) paternity determinations; and (vii) juvenile delinquency cases.

Therefore, for unmarried couples, if there is a dispute involving their children (under the age of 21), then they will be in Family Court.  It is important to note that Family Court cannot grant you a divorce, for that, you must go to Supreme Court.

If you are not sure what Court you need to go to, call David Badanes and the  Badanes Law Office. David Badanes and the Badanes Law Office have helped numerous individuals in all areas of matrimonial and family law.

If you need an attorney to represent you, then 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 and Garden City.

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The Top Five Ways to Avoid A Long Drawn Out Divorce

You want a divorce or you have just been served with divorce papers.  Either way, you don’t want a long drawn-out divorce process.  Here are the top five ways to avoid such a fate:

  1. Provide your attorney with all the requested documentation. Most divorces will require each party to provide their financial documentation.  This will include: bank statements, credit card statements, tax returns, deeds, mortgage information.  The sooner you provide those documents, the sooner your divorce should be able to be completed.
  2. Respond to your attorney’s emails and other requests. During the divorce process, your divorce attorney is bound to have questions and other requests for you to respond to.  By responding quickly, you help your attorney in quickly resolving the issue.
  3. Focus on the important issues. Too often, clients get caught up in fighting about every issue, even ones that really are not that important.  It is important to identify which issues are important and concentrate on fighting those.
  4. Decide what issues can be settled early on. Related to the above, if there are issues that can be settled, then you may be able to resolve them early in the divorce process and then litigate the rest.  By reducing the number of issues, this will reduce the time your divorce is in the court system.
  5. Be available to attend all court conferences. There may be several court conferences.  If you are requested to attend a court conference, it is better to make yourself available for all court conferences.  Every time that you request an adjournment or a continuance of a court conference will add more delays to your divorce.

David Badanes, Esq. and The Badanes Law Office, P.C. have represented and helped numerous clients in their divorce and in helping them get their divorce over as soon as possible. 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 Garden City, Nassau County.

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How Do Judges Decide Divorce Cases?

In New York State, a Judge, not a jury, will hear your divorce case and that person is the sole person who decides what happens in your divorce case.  As with every case, a Judge will listen to the evidence and testimony of the parties.  However, unlike most cases, it doesn’t matter who the Plaintiff is and who the Defendant is.  Also, unlike most cases, neither party is “guilty” or “innocent” or “at fault”.  Instead, in a divorce, both parents come to the Court on equal footing and each parent must demonstrate that they should prevail in the different areas that will be determined.

Most importantly, only about 1% to 5% of divorce cases actually go to trial.  Therefore, although, a Judge will preside over your divorce, it is only in the rare instance of a trial, that a Judge actually “decides” your entire divorce case.  However, an exception to this is that throughout the litigation of your divorce (which will be many months and may be 1 to 3 years), a Judge may make several rulings that will affect the final outcome or final trial decision of your divorce.

From the start of the divorce case until a trial, 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.  Depending on the Judge, in some court conferences, the Judge will indicate their general opinions about your divorce.  These informal opinions are not formal orders or rulings; however, they do indicate which way the Judge is leaning towards.

Furthermore, before a trial, there may be temporary orders or decisions that apply while the divorce case is pending.  Some examples of these temporary orders are: (i) temporary order of child support; (ii) temporary orders of attorney fees; and (iii) temporary orders of spousal maintenance.

If there is a trial, the Judge will hear the testimony, evidence, rule on any objections and sometimes ask the witness some of their own questions.  The Judge will apply the evidence that is heard to the facts of the case.  Once the trial is concluded, unlike what you see at the movies or on television, it is extremely rare for a Judge to issue a decision “from the bench”.  Instead, the Judge will issue a written decision which is usually mailed (or emailed) to the attorneys.  Typically, a Judge’s written decision will come in 2 – 4 weeks after the conclusion of the trial.

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 want a divorce attorney who is honest and does not waste their time.   If you are contemplating a divorce or just served divorced papers, then you should call David Badanes, Esq. and the Badanes Law Office, P.C.  David Badanes can be contacted 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 and Uniondale.

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How To Handle A Co-Owned Family Business In A Divorce

You and your spouse own a business together. The business is doing well (or perhaps not so well), but, unfortunately, your marriage is about to dissolve and you are getting divorced. Along with all the other issues involved, you and your spouse have to decide what to do with your co-owned business.

In general terms, there are three different ways to determine what to do with your co-owned family business in a divorce.

#1: Continue to own the business together. Believe it not, many divorcing couples will continue to co-own their business after the divorce. Of course, this means that the divorcing couples must put aside any personal animosity to the side, and be able to work together to make the business successful.

The benefits of continuing to co-own the business are as follows:

  • You both probably put a lot of work and effort in the business, and neither party wants to give up their share. By continuing to co-own, neither party has to give up, what they worked so hard to see succeed.
  • You both get to keep the income generated from the business.
  • There is no need to spend money on valuing the business.
  • It may force you to re-evaluate your roles in the business.

Of course, there are a few negatives in continuing to co-own the business, after the divorce, they are:

  • If you have children, any disagreements about the children may spill over into your business decisions.
  • You will still be in close contact with your ex-spouse. This may be too much to bear.
    You will need to maintain a good working relationship with your ex-spouse.

#2: Buy-out your ex-spouse’s half of the business. In New York, whether it is a house, a car, or any other type of asset, a co-owned business is treated the same way, it is divided “equitably” (meaning fairly). This typically, but not always, means, that each party is entitled to 50% of the value of the asset, and in this case, 50% of the value of the business.

In order to buy-out your ex-spouse’s half of the business, the first thing that will have to happen is to obtain a valuation of the business. This will require hiring a business appraiser. There are a few companies that specialize in valuation of businesses. Their fees can range from a few thousand dollars to over twenty-thousand dollars.

Once the business is valued, then one person can buy-out the other person’s half of that business. If the parties can’t agree on which party will buy-out the other party, the Court will most likely order you to sell the business.

#3: Sell the business. The easiest option, is probably to sell the business. This avoids the issue of working together, and also avoids the issue of which spouse gets to keep the business. You may still want to obtain a business appraiser to value the business, this way you will know what is the actual worth of the business and what you should sell it for.

If you do sell the business, it is important that you also have a limited non-compete and limited non-solicitation agreement. A limited non-compete means that you both can’t open the same or similar type business in the same geographical area. For example, if you both co-owned an ice cream shop, the limited non-compete may state that neither party may subsequently own an ice cream store in the same town.

A limited non-solicitation agreement means that you both can’t solicit the same clients that you previously had. For example, if you both co-owned a tax preparation business, then you may want to evenly split up the existing clients of that business, and prevent the other party from soliciting or using those existing clients.

If you co-own a family business, or any type of business, and you are thinking of getting a divorce (or you are in the middle of a divorce), it is important to hire an attorney that understands your particular situation. David Badanes and the Badanes Law Office, P.C., have represented numerous clients who own a business and can help you.

Contact David Badanes and the Badanes Law Office, P.C. 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 and Uniondale.

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Is It Considered Abandonment If I Leave The Marital Home?

There is a misconception concerning “abandonment” or leaving the marital home. Prior to 2010, New York State required divorcing couples to establish “fault” in order to get divorced. One of the grounds was abandonment. One way to show abandonment was to establish that one spouse left the house for a period of one year or more.

However, since, 2010, New York State is now a “no fault” divorce state. Therefore, divorcing spouses do not have to establish any fault, and can simply file for divorce without any grounds. Accordingly, since 2010, virtually every new divorce is filed using the no fault statute, and very few divorces are filed under the old basis of abandonment.

Although, leaving the marital home will no longer be used as a legal basis for a divorce, it still may have some negative consequences. If there are children involved, leaving the home may hurt your ability to gain custody of the children. It is often better to stay in the marital home, until you can discuss, with your attorney, strategies on how you can leave the home without injuring your ability to gain custody.

Even in situations without children, it may not be a good idea to leave the marital home. If you establish another residence, outside the marital home, and you are paying the expenses (mortgage, rent, etc.) for both the marital home and your other residence, that may work against you when computing spousal maintenance (alimony).

Therefore, although leaving the marital home, will not be considered “abandonment”, at least in the legal sense, you should consult with an attorney prior to leaving the home.

David Badanes, Esq. and the Badanes Law Office, P.C. can help you with your divorce and other family law issues. Please call or contact David Badanes, Esq. and the Badanes Law Office, P.C. at 631-239-1702, email at david@dbnylaw.com or visit our web site: www.dbnylaw.com. The Badanes Law Office, P.C. has offices in Northport, Suffolk County and in Uniondale, Nassau County.

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Facebook Posts Including Private Message Posts Are Discoverable

In New York State, if you are involved in any type of litigation, including divorce, most documents and communications, including Facebook posts, Twitter, Instagram, and SnapChap are discoverable.  This means, if the opposing attorney makes a request for those documents and communications, you have to produce them in discovery.

The highest New York State Court (what is called the Court of Appeals) has reaffirmed this very basic principle.  The Court stated that the discovery rules are liberal.  In addition, the Court made it clear, that just because the communication, posts or document is in the “private” portion of Facebook or a “private message” does not shield it from normal discovery.  In making its ruling, the Court noted that there is nothing so unique about Facebook that protects the “private” section of Facebook from discovery. 

In other words, just because you label something as “private” or put into a “private” part of Facebook etc., does not make it privileged or shielded from disclosure on the basis of “privacy.”

The Court did note that there are three categories of protected materials: (1) privileged matter (typically attorney-client communications); (2) attorney’s work product (i.e., attorney’s notes and research); and (3) trail preparation materials.

Furthermore, if you want to protect any documents or communications from discovery, you have the burden of showing the document/communication is privileged or has some other right to protection. 

If you are involved in a divorce case, then you should know that anything you post of Facebook or any other social media site can be discovered by your spouse or ex-spouse.  This is why you need to be very careful in what you do post.

David Badanes and the Badanes Law Office, P.C. can guide you and give you the legal advice you need when it comes to Facebook and other social media sites.  If you are seeking a divorce or have been served with divorce papers, 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 has offices in Northport (Suffolk County) and in Uniondale (Nassau County).

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A Parent’s Sexual Identity (Or Preference) Does Not Affect Child Custody

In New York State, a parent’s sexual identity or sexual preference will normally have no impact on the court’s determination in a child custody dispute.

The Court will remain neutral regarding a person’s sexual identity or sexual preference and should not take this fact into account when deciding custody. 

As with any custody determination, the court’s focus will be what is “in the best interest of the children.”  Indeed, it may be improper to even bring up a person’s sexual identity or sexual preference, as there is an element of privacy.  It would also be improper to attempt to show that the parent’s sexual identity or preference is somehow harmful to the child.

It also will not matter if a parent’s sexual identity or sexual preference was exhibited after the child’s birth.

If you have a legal question regarding child custody, please contact David Badanes and the Badanes Law Office, P.C.  David Badanes and the Badanes Law Office’s phone number is 631-239-1702, email at david@dbnylaw.com or visit our web site: www.dbnylaw.com.  The Badanes Law Office has offices in Northport and Uniondale.

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Keeping In Touch With Your Children After Relocation With Child Vacation Rights

movingIf your ex-spouse is allowed to relocate, with your children, out of state (or within New York State, but, more than 100 miles away), then your parenting and visitation rights will be effected.  It is important to know that before your ex-spouse is allowed to relocate, you can petition the Court to prevent the relocation (see article: Relocation (After Divorce) for more information).  This article will assume that the Court has allowed your ex-spouse to relocate.

Since your   will be a great distance away, typical parenting time arrangements will usually not work.  Therefore, it is important to come up with creative solutions so that you can still have a good relationship with your children.

With today’s technologies, you can Skype or Video Chat with your children for little to no cost.  This allows you to keep in touch and see your children.

As for parenting time, here are some ideas:

  • You should request that you have parenting time once a month, for a full weekend.
  • You should request four weeks of parenting time during the summer.
  • You should request that you have parenting time during the children’s extended school vacation weeks (December recess, February recess and Spring recess).
  • You should always request that your ex-spouse pays for all travel expenses to and from your residence.

David Badanes and the Badanes Law Office excel in seeking creative and innovate solutions to difficult problems.  The Badanes Law Office has helped several individuals who have faced relocation issues.  If you live in Suffolk County, Nassau County or New York City and need a divorce lawyer, then Contact David Badanes and the Badanes Law Office at by calling, 631-239-1702,  or email at david@dbnylaw.com The Badanes Law Office has offices in Northport, Garden City, Brooklyn and Manhattan.

 

What is Equitable Distribution?

divideIn New York State, you and your spouse’s assets will be distributed by “equitable distribution.” Equitable Distribution is basically a fancy word for dividing your property in a fair manner. This typically means that marital assets will be divided in a manner that is close to 50% to each party. However, the Court does not have to divide marital assets such that each party receives 50% of the marital assets or even close to 50%.

The first step in dividing assets is to determine all the assets and liabilities of both spouses. This involves a careful inventory. If you fail to identify an asset or liability, then it will be impossible for the Court to determine if it is a marital asset or a separate property asset.

Once an inventory of all property is performed, the next step is to determine if the particular asset is to be classified as either marital property or separate property. If the asset is classified as separate property, then it is your property and the Court will award you that property. The same applies to separate liabilities, if the liability is yours, then you will be liable for it.

In contrast, if the asset or liability is classified as marital property, then the Court needs to determine how it will be divided.

There is a presumption that all property is to be classified as marital property. Accordingly, if you want a property to be classified as your separate property, then you have the burden of proof to show that it is separate property.

Some typical examples of separate property are: (i) inherited property; (ii) gifts before marriage; (iii) gifts from a third-party during the marriage, that are specifically designated as a gift; and (iv) a house that was owned prior to the marriage and kept in your own name.

Once a property is classified as marital property, then the value of the asset must be determined. There are three different valuation dates: (i) at the time of the commencement of the action; (ii) at the time of the divorce; or (iii) sometime in between those two dates. Which date is chosen is complicated and depends on several factors. In general terms, your house will usually be valued at the time of the divorce while pensions and retirement accounts will usually be valued at the time of the commencement of the action.

The final step is to distribute the marital assets and liabilities in an equitable (fair) manner. Again, this does not mean that all the marital assets and liabilities will be divided exactly 50/50.

If you are thinking of getting divorce and need advice on equitable distribution, the Badanes Law Office can help you. Call Long Island divorce lawyer David Badanes and the Badanes Law Office today at 631-239-1702, or email David at david@dbnylaw.com. The Badanes Law Office has offices in Northport, Suffolk County and Garden City, Nassau County.

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