Is My Pension Considered an Asset in A Divorce?

The answer is Yes, as a pension is considered an asset in a divorce.

According to New York State law, pension benefits and retirement benefits earned during a marriage are considered marital property and subject to distribution in the event of a divorce. This means that each spouse is entitled to a share of the other spouse’s pension benefits and retirement benefits.

In general terms, there are two types of pension/retirement benefits, they are:

Defined Benefit Pensions: Typically, this the type of benefit an employee would receive from working for the government or public entity. For example, teachers, police officers, New York City firefighters, other school employees are typically entitled to a defined benefit pension. Some large companies also may offer a defined benefit pension. A defined benefit means that the benefit formula that an employee is entitled to is defined and known in advance. It also typically means that the employer funds typically funds 100% of the amount that the employee is entitled to.

Defined Contribution Plans: In this type of plan, both the employee and employer will make contributions to an account in which the employee is entitled to upon the employee’s retirement or in leaving the company. Typically, the accounts are invested in the stock market or sometimes in bonds.

Regardless, of which type of pension/retirement plan a spouse has, the other spouse is entitled to the portion of that plan that was earned during the marriage. Here, is how that works:

Assume the following facts: If the spouse was earning pension benefits for 4 years prior to the marriage, then you were married for 15 years before the commencement of the divorce, the spouse continued to earn pension benefits after the commencement of the divorce for another 6 years. So in total, the souse worked earned pension benefits for 25 years (4 + 15 + 6), and during that time earned 15 years while married.

In this example, the formula (which is called the Majuskas Formula), states:

50% X Number of years earned during marriage
———————————————— (divided by)
Total Number or years earning pension benefits

So it would be 50% X 15/25 or 30% of the spouse’s pension benefits.

In virtually all divorce cases, a third-party expert company will be hired to determine the exact amount of pension benefits each spouse is entitled to.

If you have questions regarding your rights to pension benefits or retirement benefits during a divorce, 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 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.

Five Things You Did Not Know About Child Custody in New York

Here are Five Things You Did Not Know About Child Custody in New York:

  1. No Court Order means No Rights: For unmarried parents — without a Court Order, you do not have any enforceable rights to custody. This is why if you are an unmarried parent, it is very important to go to Court to get a Court Order for your rights. If you are married, you have certain rights, but, again, to make your rights clear and enforceable, it is important to consult with an attorney to determine if you need to get a Court Order.
  2. Failure to Pay Child Support Does Not Necessarily Affect Custody: If a parent does not pay their child support, it does not necessarily affect their custody rights. Therefore, even if that parent is not paying child support, you cannot unilaterally refuse that parent their parenting time. However, you may want to consult with an attorney to see what can be done with a Court order.
  3. Children’s Wishes May Effect Custody: The key word here is “May”. The older a child is, then the more that their wishes will have an effect on which parent gets custody. However, until a child is 18 years of age, the Court does not have to follow the child’s wishes.
  4. Parental Alienation and False Allegations are Two “Negative” Factors: There are a few factors that the Court will consider when awarding custody. If one parent has engaged in parental alienation or has made false allegations against the other parent, then that will be considered a negative factor against the parent engaging in parental alienation or making the false allegations. In many cases, a Court will award custody to the “innocent” parent even if there are other factors that normally would grant custody to the parent who is engaging in parental alienation or is the one making the false allegations.
  5. In New York, Joint Custody means …: Typically, the term joint custody means that both parents have joint legal custody. This gives both parents the right to make major decisions in the upbringing of their child. Major decisions are usually defined as: medical decisions, religious upbringing, educational decisions, and sometimes what extracurricular activities the child engages in.

David Badanes and the Badanes Law Office, P.C. have represented numerous parents in their custody actions and in their divorce. Contact the Badanes Law Office, P.C. today at 631-239-1702, email at david@dbnylaw.com or visit our web site: www.dbnylaw.com.

How Does a Divorce Effect Social Security Benefits?

Social Security benefits are available to most American workers. For married couples, even if only one spouse is eligible for Social Security benefits, the other spouse may also receive benefits based on the marriage. When couple’s divorce, in order to collect Social Security benefits from your former spouse, you need to meet the following requirements:

  • Your marriage must have been for at least 10 years
  • You must be at least 62 years of age (at the time that you want to start collecting your benefits)
  • You need to remain unmarried — however, if you do re-marry, then you may still be able to receive benefits from your first spouse
  • Your own Social Security benefits must be less than the amount of benefits you would receive from your ex-spouse

If you do qualify for Social Security benefits, the benefits you receive do not reduce the amount of Social Security benefits paid to your former spouse. Therefore, getting divorced does not reduce your benefits, it only allows your former spouse to collect Social Security benefits as well.

You should also know, that if your ex-spouse qualifies for their Social Security benefits, but, has not applied for them, that you can still receive your Social Security benefits, based on that ex-spouse (provided that you have been divorced for at least two years).
Finally, it is important to know that Social Security benefits are subject to Federal Law and are not subject to change based on changes in New York law.

If you are contemplating divorce and you are close to being married for 10 years, you may want to delay filing for divorce until you are married for more than 10 years. This way you may be eligible to receive Social Security benefits from your former spouse.

If you are thinking of getting a divorce, you need an experienced Matrimonial and Divorce Attorney to guide you through the process. Call David Badanes and the Badanes Law Office 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 and Uniondale.

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What To Do If Your Soon-To-Be-Ex or Ex-Spouse Slanders You On Social Media?

Divorce can be an emotionally charged time, but venting about it on social media can get you in trouble and potentially lead you into court. During the divorce process and even after the divorce is over, your ex-spouse may post negative comments about you.

The number one rule in these situations: Do not retaliate against your soon-to-be-ex-spouse or your ex-spouse with your own post or try to rebut any of their posts.

If your ex-spouse posts something negative about you, what you should do is take a screenshot of the post, save it and send it to your attorney. Your attorney can then guide you on what the best course of action will be. That may consist of filing a lawsuit, writing to your ex-spouse’s attorney or some other action.

It is important to note, that not everything your ex-spouse posts or writes about you may be improper or illegal. For example, your ex-spouse may be able to post factually correct details about your divorce. Although this might be upsetting, it is probably not improper.

However, if your ex-spouse is clearly posting false information about you, then you may be able to take legal action against your ex-spouse. It is important that the statement must be entirely false and caused you some type of harm.

If you are in the middle of your divorce, any negative posts or statements should be given to your attorney, who then may show those posts to the Court (and to your spouse’s attorney). Although the post may not qualify as slander or defamation, it still may be useful to you in your divorce. Virtually every Court and every Judge will not want to see negative posts being stated about you, especially if there are children involved. Furthermore, if you are worried that your spouse will continue to post negative information about you, even after the divorce is final, you can ask your attorney to add protections into your settlement agreement.

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What Kinds Of Questions Will A Judge Ask At A Divorce Hearing?

At a divorce trial or hearing, a Judge typically does not ask many questions. In fact, a Judge doesn’t have to ask any questions. The attorneys are supposed to ask all the questions.

However, there are times that a Judge may ask a clarifying question. For example, if you are asked what you do for a living, and you answer “engineer”, the Judge may ask what kind of engineer or what an engineer does.

If there is a signed divorce agreement, then the Judge will probably do an allocution of the parties. An allocution is done so that the Judge knows that you entered into the divorce agreement on your own free will and that you fully understand the agreement. The Judge will ask a series of questions, some of which may include:

  1. Do you understand the agreement?
  2. Did anybody force you to sign the agreement?
  3. Did your attorney explain the agreement to you?
  4. Are you satisfied with the agreement?
  5. Are you currently under the influence of drugs/alcohol that would impair your ability to understand the agreement?
  6. Is that your true signature?

If you are just appearing for a court conference (and not a trial/hearing), especially in the beginning of your divorce, a Judge may ask you more questions. For example, the Judge may want to know: (i) if you have children; (ii) the children’s ages; (iii) if you own a house; (iv) if you have a mortgage; (iv) what you do for a living; and (v) your general income.

Divorce can be complicated, David Badanes and the Badanes Law Office can help you understand the process and guide you through it. David Badanes and the Badanes Law Office have represented countless clients and have achieved excellent results.

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Do We Have To Split Our Child’s Medical Bills Or Does Child Support Cover That?

You are divorced (or have a child in common with the child’s parent), and you have a medical bill (due to a co-pay or a deductible). Does child support cover that?

Unreimbursed medical expenses are paid pro-rata and are separate and apart from child support payments. This means that the person paying for child support will pay both child support and a portion of the medical expenses.

The term “pro-rata”, means that each parent will pay their proportional share of the medical expenses based on their yearly income. For example, if one parent earns $100,000 and the other parent earns $50,000, then the parent earning $100,000 would pay 2/3 (two-thirds) and the other parent would 1/3 (one-third) of the medical bills. If both parents earn the same income, then each parent would pay 50% of the medical expenses.

Typically, the non-custodial parent does not have to pay for cosmetic medical expenses or for over-the-counter medicines.

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Some Motivational Quotes for Your Divorce

Going through a divorce may one of the hardest experiences you may have. There are many things you can do to help you get through a divorce. One of them is motivational quotes.

Here are a few of my favorite motivational quotes, I hope they help you.

“Even the darkest night will end and the sun will rise.” Victor Hugo

“The most common way people give up their power is by thinking they don’t have any” Alice Walker

“The way I see it, if you want the rainbow, you’ve got to put with the rain.” Dolly Parton

“It is never too late to become what you might have been.” George Eliot

“If you’re going through hell, keep going.” Winston Churchill”

“Fall down seven times, stand up eight” Unknown

“A ship is always safe at shore, but, that is not what it’s for.” Albert Einstein

“You can’t change how people treat you or what they say about you. All you can do is change how you react to it.” Ghandi

And here are just a few funny ones:

“I have never hated a man enough to give him his diamonds back.” Zsa Zsa Gabor

“Stephen Hawking is getting a divorce. That’s scary. If the smartest guy in the world can’t figure out women, we’re all screwed.” Jay Leno

“Arguing with a lawyer is like wrestling with a pig in mud. Sooner or later you realize they like it!”

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I’m Getting Divorced: Should I Keep The House Or Sell It?

For many married couples their greatest asset is the house they own. In a divorce, you may have the option to “buy-out” your spouse and therefore keep the house, or you can sell the house. In order to evaluate whether you should keep the house (that is buy-out your spouse) or sell it, here are a few things you need to keep in mind.

Do you have the funds to buy-out your spouse? If you don’t have the funds to buy-out your spouse, then the question of whether to keep or sell, may be a moot point. Similarly, if you have the funds, but, it by buying out your spouse, it will leave you “cash-poor”, it may not be a good idea to use your available funds to buy out your spouse.

  • Do you have the funds for any repairs or emergencies? Even if you have enough funds to buy-out your spouse, you also should have enough funds in reserve for any repairs or emergencies that may occur in the future.
  • If you need to obtain a mortgage to buy-out your spouse, can you afford the mortgage? You may qualify for a mortgage, but, that does not necessarily mean that you can actually afford to pay the mortgage ever month. Or if you pay the mortgage, you will have very little left over for any other funds.
  • Is a smaller home or a less expensive home a better idea? It may be better to sell the home and then buy a less expensive home. It is at least worth thinking about.
  • Are you only keeping the house for sentimental reasons? You may love the house and you may want to stay for sentimental reasons. Yet, it may be better to sell the house, despite its sentimental value.

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Going To Court: What You Should Wear

If you ever watch an old movie, you will see that anyone who went to court was dressed in a suit. Although, I’m not too sure how true that was in the so-called old days, I can tell you from experience, that what people wear to court today is vastly different. I’ve seen people go to court in outfits more fit for the beach. Although, it really should not matter what you wear, what you wear to court, does matter. So what should you wear when going to court?

When selecting what you should wear to court, the general rule is to look neat and not too flashy.

For Men: at a minimum you should wear “business casual”, that is dress pants and dress shirt, it may not be necessary to wear a tie. However, if you feel more comfortable wearing a tie, then I recommend that you do so. You should also wear dress shoes. You should not wear a lot of jewelry.

For Women: at a minimum, you should also wear “business casual”, a dress suit or pantsuit is fine. Most experts will also recommend a solid-colored blouse and conservative dress shoes.

In many ways, it is probably easier to tell you what not to wear, that list would include:

  • T-shirts
  • Sundress
  • Strapless dress
  • Exercise outfits
  • Sleeveless shirts (muscle shirts)
  • Shorts
  • Hats
  • Revealing tops
  • Short Skirts
  • Sneakers
  • Flip-Flop Sandals

David Badanes provides real-world and practical advice that will help you in your divorce. From what to wear to court to how to prepare for a complicated divorce case, David Badanes and the Badanes Law Office, will make sure you get the best advice.

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