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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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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I’ve Been Served With Divorce Papers – Now What?

Many divorces are started in January.  If you have just been served with divorce papers (in New York called either a “Summons With Notice” or a “Summons” and a “Complaint”), then this is what you need to know.

First, the “Summons With Notice” or a “Summons” combined with a “Complaint” is the formal and legal way of informing you that your spouse wants a divorce. Those documents will also state (or should state) what your spouse is seeking (e.g., child support, spousal maintenance).  However, these requests (which in legal terms are called a “demand”) will be very general in nature.  For example, if there are children involved, it will probably state something like this: “Awarding Plaintiff custody of the children”.

Second, the “Clock is ticking”, this means that in New York, you typically have twenty (20) days to formally respond to the Summons. What you should do is immediately search for a divorce attorney.  You do not want to wait until your time runs out. Once, you have determined which attorney you want to hire, your attorney will respond to the Summons.

Third, although your attorney will respond to the Summons, you will stay have some work to do.  Your attorney will guide you through the process, but you will need to obtain financial documents and provide your attorney with the facts and documents of your case.

Fourth, if you feel overwhelmed, seek out professional mental health.  Although, receiving the divorce papers may be a shock, most likely you knew that your marriage was failing.  However, if you are feeling overwhelmed, sad or depressed, it is important to speak to a mental health professional.

When served with divorce papers, the important thing to remember is not to panic.  Your divorce attorney will help you through the legal process.

David Badanes, Esq. and the Badanes Law Office, P.C. know that receiving divorce papers can be disconcerting.  David Badanes has the experience to help you through the process and to make sure that you are protected.  Contact David Badanes today at 631-239-1702 or email at david@dbnylaw.com to schedule a free consultation. The Badanes Law Office has offices in Northport and Uniondale.

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4 Ways High Net Worth Divorces Are Different

Scott Fitzgerald famously stated that “the rich are different from you and me”, to which Ernest Hemingway responded “Yes, they have more money.” Clearly, they were both stating the obvious. It is also true that couples who are “rich” (have a high net worth or a high income) usually have different concerns when they are going through a divorce.

Here, are a couple of ways that the high net worth divorces are different:

  1. Complex Compensation Packages: Many high-net-worth individuals have complex compensation contracts. For example, in addition to their base salary, they may earn various stocks or percentages of a company.  In these situations, it is important to identify all the income streams that are available to each of the spouses.
  2. Complex Tax Considerations: High wage earners and high net worth spouses typically have complicated tax considerations. The selling of assets may trigger capital gains.  For high net worth individuals, it is extremely important that the divorce attorney work with an accountant to make sure that potential tax obligations are considered in any divorce settlement.
  3. Child Support and Spousal Maintenance: Typically, in a high net worth divorce, one spouse will be the high wage earner. The standard child support and spousal maintenance (alimony) formulas may not result in a fair and equitable solution for high net worth divorces.  The divorce attorney must be able to demonstrate that in a high net worth divorce, that the standard formulas do not adequately compensate the spouse who earns less money.
  4. Financial Advisors: In a high net worth divorce both spouses should obtain their own independent financial advisor.  The spouse who is not the high wage earner may need a financial advisor to assist him/her in managing the amount of money or assets that they will be receiving in the divorce.  The high wage earning spouse will want their financial advisor to assist him/her in handling the reduction in their financial portfolio.

David Badanes, Esq. and the Badanes Law Office have the experience you need in handling your high net worth divorce.  To discuss your situation, contact them at: (phone) 631-239-1702 or email at david@dbnylaw.com.  The Badanes Law Office has offices in Northport and Uniondale.

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Divorce Delayed? Here’s Why

You started your divorce months or maybe even a year or two ago, and you still can’t see an end in sight – why? Well, it’s a complicated answer because divorce is a complicated area. Most divorces take a while to finalize because there are many legal and financial steps that need to be taken. When you add a global pandemic to the situation, the amount of time it takes to finalize a divorce increases immensely.

If your divorce has not been settled, you should ask your attorney why it is taking so long to get resolved. However, there are some common reasons that lead to this situation. Mr. David Badanes Esq. of Badanes Law Office on Long Island shared some common reasons for why divorce settlements may take so long.

Discovery is not done. In divorces, discovery is the gathering and exchange of evidence, information, documents, etc. Discovery is a very broad term and will become more specific depending on the financial assets and specific conflicts of the two parties. The time it takes to complete discovery depends mainly upon the types of documents and information that need to be gathered, the complexities of the personal and financial situation, and the cooperation of the two parties. As a result, discovery may take a while to complete.

Waiting for an appraisal of a house or business. The appraisal of certain assets is a normal step in a divorce. Unfortunately, companies that perform appraisals operate on their own schedule. The two parties in a divorce may need to wait for appraisals to be completed in order to proceed in the divorce process.

COVID-19. This is a massive reason for delays in divorce proceedings over the past year and a half. The pandemic affects many aspects of the divorce process, slowing everything down as a result. Most courts are incredibly backed up, but still need to give each case on the docket their due time and care. Additionally, many judges, attorneys and clients have become ill, leading to delays in the divorce process. The pandemic has also impacted the workforce in significant ways. There may be fewer clerks working to handle divorce cases, so even if your divorce has been settled and all the documents have been submitted, that may not be enough to finalize it quickly.

No matter what the reason is for the delay in your divorce settlement, the situation is understandably frustrating. Divorces rarely get finalized quickly, so it’s best to prepare yourself for what may take longer than expected.  Make sure you are confident in your Long Island divorce attorney to handle any delays that may come up.

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 an 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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How Divorce Affects Your Children’s College Education

One of many issues that need to be resolved in a divorce with children, is the issue of college.  Here is what you need to know about how college expenses in a divorce.

Who gets to pick the college the child attends? 

It is very rare for a divorce agreement to specify exactly which college the child will attend.  However, there are agreements that will state that the child has to at least apply to College X and in other agreements that the child has to apply to at least one State University of New York college or university.  In virtually all cases, the child will get to choose which college he/she wants to attend.  If one of the parents disputes that choice, then they will have a heavy burden to show why that particular college is not right for the child.

Who pays for college?

Your divorce agreement should contain the terms and conditions on how much each parent will need to pay for college.  If your divorce agreement is silent on this issue, then one parent may be able to go back to Court to have the other parent pay part or perhaps even all of the college expenses.

If, the Court has to decide who pays for college, then there are a few factors the Court will consider in making that decision.  In simple terms, if you or your spouse attended college, then most likely, the Court will make the parents pay for the child’s college education.  Also, if the child has other attributes that makes the child a good candidate for college, then the Court will also most likely make the parents pay for the child’s college education.

How much do I have to pay for college?

In addition to deciding who has to pay for college, your divorce agreement should specify how much each parent will have to pay for college. Typically, there will be an upper limit to how much each parent has to pay.  In most agreements, the parties will agree that the most they have to pay is what it would cost for the child to attend a SUNY school.

If there was no agreement, then the Court will decide how much each parent has to pay.  In that instance, it is likely that Court will make each parent pay their pro-rata share of the child’s college expenses.

What about college tours?

These days, it is common for parents and their children to go on several tours of different colleges.  Whether or not you go on a college tour with your child, will be something you should be able to work out with your child.

If you are getting divorce, there are several issues you will need to address.  David Badanes and the Badanes Law Office has the experience to guide you through these issues. Contact David Badanes and the Badanes Law Office at 631-239-1702 or email at david@dbnylaw.com.

The Badanes Law Office has offices in Suffolk County (Northport) and in Nassau County (Uniondale, across from the Nassau Coliseum).

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Why You Should See an Attorney Before the Holidays

For couples who are thinking about getting divorced or having marital difficulties the Holidays can be a very stressful time of year.  Many couples will wait until January to start a divorce.  However, there are a many good reasons why you should see an attorney before the Holidays start or before the New Year.

#1: You and your attorney will have more time to focus on your case. Many attorneys will have more time before the Holidays start and before the New Year.  Many attorneys get very busy after the New Year.  By making an appointment before the Holidays start, you and your attorney will have more time to focus on your case.  It also just might be easier to get a more convenient time for an appointment before the Holidays start.  It is important to remember, that you can see your attorney and even retain your attorney without actually filing for the divorce until after the New Year.

#2: You will have more time to get your documents together.  Although, you might not formally start your divorce until after the New Year, with the added time, you can start gathering the financial documents that your divorce attorney will need.  You may also have more time off which will also give you the opportunity to get these documents.

#3: You will have more time to adjust to the divorce.  With the added time, you can use this extra time to see a counselor, social worker or other mental professional.  A divorce is stressful and seeing a counselor or social worker may be a good idea.

If you are considering getting divorced, it might be a good idea to see an attorney before the Holidays start.  David Badanes and the Badanes Law Office, P.C. have the experience and knowledge to help you.  David Badanes has represented hundreds of clients.  See how David Badanes has helped others and read his reviews on Google.  Mr. Badanes represents clients in Suffolk County, Nassau County and in New York City.

David Badanes and the Badanes Law Office can be contacted at 631-239-1702, email at david@dbnylaw.com or visit our website at www.dbnylaw.com.  The Badanes Law Office has offices in Northport and Uniondale.

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What to Do if Your Ex Doesn’t Have Life Insurance

In most divorce agreements, your ex-spouse may have to maintain a certain amount of life insurance. The purpose of life insurance is to provide money for child support or spousal maintenance (alimony) in case the ex-spouse dies. However, what should you do if your ex-spouse doesn’t maintain his/her life insurance policy?

First, you have to make sure that your ex is required to maintain life insurance as part of the divorce. In order for you to obligate your ex-spouse to maintain life insurance, the divorce agreement and/or the Judgment of Divorce must explicitly state: (1) that your ex-spouse has to maintain life insurance; (2) the amount of the life insurance benefit; (3) who the beneficiaries of the life insurance are: and (4) the remedy if your ex-spouse does not maintain life insurance.

Second, once it is clear that your ex-spouse has to maintain life insurance, you most likely will need to notify your ex-spouse that they are in violation (breach) of the divorce agreement and that they are to obtain a life insurance plan. Your notification letter should be very specific as to what your ex-spouse has to do. You may want to hire an attorney to write the notification letter.

Third, if, after sending your notification letter, your ex-spouse still fails to obtain life insurance, then, you may need to file a Motion with the Court, so that the Court can force your ex-spouse to obtain life insurance. The Court will determine if your ex-spouse is in violation of the divorce agreement and can force your ex-spouse to obtain life insurance or declare your ex-spouse in contempt of the divorce agreement (which may have more serious consequences, including incarceration).

David Badanes, Esq. and the Badanes Law Office, P.C. has helped numerous individuals with their divorces and in making sure that the ex-spouse is required to maintain a life insurance policy. Visit us on Facebook to get important legal news, tips, and articles: www.facebook.com/BadanesLawOffice.

In a Divorce, Should You File Your Taxes Jointly?

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

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

You always have the option to file a separate tax return during the period that you are still married. However, as stated above, you most likely will have to pay more in taxes compared to if you filed a joint tax return. This is because some tax deductions, credits, and other benefits are not available or are limited when you file separately.

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

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