What is a Receiver (in a Divorce)

In some divorces, the Court will appoint a receiver. A receiver will typically be an attorney who will act as the custodian of some (or in rare cases, all) of the parties’ assets. A typical situation where a receiver will be appointed is when there is a piece of real property that needs to be managed. For example, if the couple owns a rental property, a receiver may be appointed to collect the rent, make sure repairs are done and also make sure that any mortgages and property taxes are paid.

Another example of when a receiver will be appointed is when the divorcing couple owns a business or when one of the parties own a business. In this situation, the receiver will actually manage the business (usually by hiring someone).

The Court will appoint a receiver when the divorcing couple is unable to manage certain assets. This could be because one party is not properly taking care of the asset or is simply not capable of taking the case of the asset.

If a receiver is appointed, that receiver will be entitled to earn a reasonable fee. Therefore, if possible, it is better for the divorcing couple to avoid having a receiver appointed.

If the Court or you want to appoint a receiver, you need expert legal advice. David Badanes and the Badanes Law Office, P.C., are very familiar with the receivership process and can protect your rights.

If you need legal advice about your divorce or you are seeking a divorce, then contact David Badanes and the Badanes Law Office. They have helped numerous individuals in their divorce. Call David Badanes, Esq. and the Badanes Law Office, P.C at 631-239-1702, email at david@dbnylaw.com or visit us on Facebook to get important legal news, tips, and articles: www.facebook.com/BadanesLawOffice.

Lori Loughlin’s and Felicity Huffman’s Choices and How that Relates to Your Divorce

As you may have heard, two actresses made very different choices when it came to the criminal charges against them. Lori Loughlin has decided to plead “not guilty”, while, it has been reported that Felicity Huffman has decided to plead “guilty”. Although their choices were made in the context of a criminal matter, they illustrate how different cases and situations result in different choices. This article explains some of the choices you have in your divorce matter.

In a divorce, there are two major choices to be made:

  • Go to Trial; OR
  • Settle

It is estimated that 95% of divorce cases settle. Of that amount, some people settle at the very last minute, meaning on the day of trial.

The reasons why people settle is that typically if you choose to go to trial, they will be spending a lot of money in attorney fees, while if they choose to settle, the opposite will most likely be true, as they will be saving a lot of money in attorney fees.

In addition, choosing to settle, typically results in a better outcome. This is because, in a trial, most Court Orders are not as extensive as the settlement agreement. This could mean that the Court’s order will leave out important details. In contrast, a settlement agreement usually is very detailed.

Of course, in some cases, choosing to go to trial may be the best option. In order to decide which choice you should make, you need to consult with your attorney.

There are many other choices that most likely will have to be made in your divorce case, they include:

  • Housing: Do you choose to retain the marital home or do you choose to sell it. If you choose to try to retain it, for how long?
  • Child Custody: Do you choose to agree to joint custody? Do you fight for sole custody?
  • Parenting time: There are numerous choices to be made in deciding what your parenting time will be and what your spouse’s parenting time will be.

When signing an agreement, a client may state: “I had no choice”. That is incorrect, I tell them, that there is always a choice. Here, the choice is to either sign the agreement or if you don’t sign the agreement, then a Judge will make a decision. The client’s choice is to weigh out the positives and negatives of signing the agreement versus the potential outcome if the case goes to trial.

Divorce presents many choices. One of your first choices will be who you decide to hire for your attorney. If you are seeking an experienced attorney who will present all the choices and explain them to you, in plain English and how those choices affect you, then contact David Badanes, Esq. and the Badanes Law Office, P.C. Contact David Badanes and the Badanes Law Office, P.C. today at 631-239-1702, email at david@dbnylaw.com or visit us on Facebook to get important legal news, tips, and articles: www.facebook.com/BadanesLawOffice.

How To Handle An Ex-Spouse That Does Not Abide By The Divorce Agreement

A divorce agreement issued by the court is a legally binding contract. As such, if either party refuses to follow the divorce agreement, you have a few options on how to handle this situation.

  1. You can have your attorney (or you can do this yourself), send a letter outlining exactly how your ex-spouse is not following the divorce agreement (in other words, how they are in breach of the agreement). Depending on what your divorce agreement states, you may have to give your ex-spouse a certain number of days to rectify their breach.
  2. If your ex-spouse ignores your letter or does not fully rectify their breach, then you will have to file a Motion or an Order to Show Cause to the Court. The Motion (or Order to Show Cause) will state that your ex-spouse is in breach and what you are seeking. In many situations, you may be able to request your attorney’s fees.
  3. You may also ask the Court for a finding of “contempt” and that your ex-spouse should be incarcerated. If your ex-spouse is found to willfully breach the divorce agreement, and the Court believes the breach is serious enough, they could order that your ex-spouse be incarcerated.

In general terms, these are the most common examples of how an ex-spouse breaches a divorce agreement:

  • Failure to pay Child Support: The Court treats the failure to pay child support very seriously. If your ex-spouse is not paying you child support, you should immediately go to court to seek relief.
  • Failure to pay Spousal Maintenance (alimony): Similar to not paying child support, the Court will treat this very seriously.
  • Failure to follow the parenting time arrangements: Unlike the failure to pay child support or spousal maintenance, here the Court will be more lenient.
  • It is important to note that just because your ex-spouse doesn’t pay child support, this does not mean that you can prevent your child from visiting your ex-spouse.

Divorce can present many challenges, even after the divorce is finalized. David Badanes, Esq. and the Badanes Law Office, P.C. can help you and will answer all your questions about the divorce process. David Badanes and the Badanes Law Office, P.C. can be contacted 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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How Old Must A Child Be To Have A Say In Where They Live Or Visit?

In New York State, a child’s preference on where they want to live MAY be one of factors that a Court can consider when awarding custody. Once a child turns 18 years of age, they have the absolute right to decide where they want to live, and the Court cannot overturn that decision. However, what about before a child turns 18 years of age, how old must a child be for the Court to consider their preference?

The general rule is that the older a child is, the more influence a child’s preference will have on where they live. Certainly, most Courts will state that once a child turns 16 years of age, their preference will be strongly considered. However, this is not an absolute rule, and a Court can decide that even a 16 or 17 year old’s preference is not to be followed or considered.

A child between the age of 13 and 16, will also have their preference seriously considered. Yet, there are many Courts that will discount a child between these ages. In general, a child who is younger than 13 years of age, will have less of a say on where they live.

It is important to note, that each situation is unique and that there is no rule that says that a child younger than 13 doesn’t get to decide where they live.

What happens if the court grants one parent custody and years later the child wants to live with the other parent? What was once in the best interest of an 8-year old child may not be what is best for the child when they are 16. In those situation, a parent can petition the Court to modify the custody arrangement and based on the now 16 year’s old preference, may take that into serious consideration. The court makes these decisions on a case by case basis, and ultimately, the verdict will be the living arrangement that is in the best interest of the child.

Child custody and visitation can be a very difficult road to navigate. David Badanes and the Badanes Law Office, P.C., have represented countless clients and helped them navigate child custody issue in their divorce or in their family court action.. If you are seeking a divorce or custody, 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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What Does An Expert Witness Do In A Divorce?

When watching television or a movie with a legal case, you may have seen an attorney call on an “expert witness.”

What is an expert witness? What does an expert witness do in a divorce?

An expert witness is a person who has specialized knowledge about an issue. An expert witness can be anyone with knowledge about a specific issue or subject. Typically, the expert witness has years of experience or education about the issue or subject. There are experts in just about every human endeavor and subject area.

An expert is there to help the Court better understand a specific issue. Hopefully, the expert can explain a complex issue in easy to understand language. This helps the Judge, and if there is a jury, the jury understand that issue.

There are two types of expert witnesses: (i) a Neutral Expert Witness; and (ii) an Independently Hired Expert Witness.

A Neutral Expert Witness is typically appointed by the Court to give an opinion on a particular issue. In a divorce, a Court may appoint the following Neutral Experts:

  • A real estate appraiser – to appraise the value of a house, vacant lots, or any other type of property
  • A retirement valuation firm – to provide a valuation of the parties’ retirement funds and also to draft a Domestic Relation Order to distribute those funds
  • A forensic accountant – to provide a valuation of a business
  • A forensic psychologist – to provide an opinion on child custody issues
  • A jewelry appraiser – to appraise the value of jewelry

The Court will also determine how the neutral expert is paid, typically, the parties will equally share the cost of a neutral expert. However, in situations where one party earns much more than the other party, the wealthy spouse may have to pay all or most of the neutral expert’s fees.

An Independently Hired Expert Witness is where a party directly hires their own expert witness to provide an opinion at trial. In those instances, typically, both parties hire their own separate expert witnesses. When both parties have their own independent expert witnesses, you have what is commonly called a “battle of experts”. The Court can choose to follow one expert’s opinion, neither expert’s opinion, or a combination of both expert’s opinions.

In most divorces, it is very rare for the parties to hire their own independently hired expert witnesses. This is because it can be very expensive to do so, in addition, the Court would rather that a neutral expert be retained to limit the time it takes for expert witness testimony.

Experts are not just used at trial, especially in divorce cases. Usually, an expert will issue a written report prior to a trial, and in many cases, early in a divorce matter. The expert will help the parties understand the issues and the value of the parties’ home, retirement assets or other assets. The parties can use that knowledge to help them reach a settlement before the case goes to trial.

If you are thinking of getting divorced and need a divorce attorney on Long Island, NY, please contact David Badanes at Badanes Law Office. Mr. Badanes has represented hundreds of clients in their divorce. Mr. Badanes will help you in either finding an expert witness or in interpreting the expert witnesses’ report. Call today at 631-239-1702, email at david@dbnylaw.com.

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