Basic Legal Requirement to File For a Divorce in New York

In order to file for divorce in New York, you need to meet certain legal requirements. In other words, just because you live in New York now or got married in New York, may not qualify you for filing for a divorce in New York State.

In legal terms, you have to establish what is known as “residency”. The legal definition of “residency” is different than what is your current place that you live in. To establish “legal residency” so that you can file for a divorce in New York State, you must have ONE of the following:

  • Either you OR your spouse have lived in New York State for at least two years immediately prior to filing for divorce. You also have to properly plead grounds, here the grounds did not have to happen in New York (see below); OR
  • Both you AND your spouse currently live in New York State at the time of filing for divorce. Additionally, the grounds for divorce occurred in New York State (see below); OR
  • Either you OR your spouse has lived in New York for at least one year immediately prior to filing for divorce. Additionally, you were married in New York, you both lived in New York during your marriage or the grounds for divorce occurred in New York (see below).

As you can see, in addition to establishing legal residency, you have to establish “grounds”. “Grounds” give the Courts the basic reason why you should be granted a divorce. Since 2010, it is much easier to establish grounds, as now New York recognizes “no fault divorce.” No Fault divorce is explained below.

There needs to be a legally acceptable reason to get divorced in New York. There are seven acceptable grounds for divorce in New York. They are:

  • Cruel and inhuman treatment by your spouse. This is when your physical or mental health is jeopardized by continuing to live together.
  • Abandonment: your spouse abandons you for at least a year. This can include your spouse leaving you, kicking you out and/or not intending to return to the home.
  • Imprisonment: your spouse is imprisoned for three or more years.
  • Adultery: your spouse commits adultery. A witness is required to testify.
  • A separation agreement: You and your spouse have not lived together for at least one year due to a separation agreement. The agreement must be signed by both you and your spouse in front of a notary and the agreement must abide by the legal requirements for a Separation Agreement.
  • “No Fault Divorce.” To plead a no fault divorce, you state that there has been an “Irretrievable breakdown of the relationship for at least six months.” Since 2010, virtually every divorce, in New York State, uses this as the grounds for divorce. You don’t have to prove irretrievable breakdown, you simply tell the Court that this is your grounds. One possible issue is that you should be married at least 6 months to use the no fault divorce as your grounds.

Once you meet the residency and grounds requirements, you can begin to file for a divorce in New York State.

It is important to consider consulting with and retaining an attorney who has the experience to know if you can file in New York and to protect your legal rights. If you are contemplating getting a divorce, call David Badanes at 631-239-1702 or email us at david@dbnylaw.com. The Badanes Law Office has offices in Northport and Uniondale.

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Why it is Important to Have a Will in NY After COVID

You never know when tragedy will strike, which is why it is vital to be prepared. We have seen how rapidly the Coronavirus took the world by storm. We have also seen how the Coronavirus does not discriminate based on age; it is affecting people both young and old, the healthy and those who had previous health conditions.

All too often, too many people are not prepared with a Will nor do they feel the need to be. However, it is crucial to have a Will as illustrated by the sudden impact of the Coronavirus.

A Will is one of the most important things you can create for yourself and your family and ensures peace of mind. It allows your family to be protected and provides instructions for how you would like your affairs to be handled.

When tragedy strikes and a family member passes on, especially unexpected, it brings a heavy emotional burden. While mourning, it can be difficult to manage affairs, such as assets, bills, life insurance, etc. Having a Will prepared helps to eliminate the stress and worry associated with someone’s death. A Will provides the blueprint of how you want your estate to be handled. Additionally, deciding who is in charge of executing your Estate by naming an Executor in your Will is paramount.

The Coronavirus pandemic has shown us that you are never too young to prepare a will. Regardless of if you are married, divorced, single, or have children, etc. it is crucial to be proactive and give your loved ones the gift of having all of your affairs in order.

David Badanes and the Badanes Law Office, P.C. have helped numerous clients in preparing a Will. Whether you are interested in creating a new Will or updating an old Will, amending a present will, call David Badanes and the Badanes Law Office, P.C. as they have the experience to help you. Please like us on Facebook to get important legal news, tips and articles: www.facebook.com/BadanesLawOffice.

With COVID-19, How Long Will My Divorce Be Delayed?

As you may know, with COVID-19 the Courts and the Court’s Clerks have been essentially shut down and have been operating only sporadically. This means, that if you filed for divorce before the COVID-19 Pandemic, that your divorce will be delayed.

Each County has been handling their divorce cases slightly differently. Therefore, you need to know how your County is operating. For example, Suffolk County may be able to process your divorce papers faster than Nassau County. Yet, even in Suffolk County, it has been stated that already filed divorces may be delayed for two to four months. In Nassau County, it has been rumored that it may take longer than that.

If you have an attorney, the best thing to do is consult with your attorney. If you filed the papers by yourself, it may be difficult to get information from the court system.

David Badanes and the Badanes Law Office, P.C. have helped numerous clients in obtaining a divorce. If you are contemplating getting a divorce, call David Badanes at 631-239-1702.

I Want to Get Divorced Now, But Can’t Due to Coronavirus – Here’s What You Can Do

COVID-19 and the Coronavirus has had multiple effects and one of those effects is that the Court system has been virtually shut down and is not taking any new divorce cases (or by the time you read this, it may finally start taking some new divorce cases).

Although, the Courts may be closed or only operating partially, there are many things you can still do to start the divorce process.

  1. Hire an Attorney: If you haven’t hired an attorney, now is the time to do so.
  2. Financial Documents: Get electronic or hard copies of your financial documents. You most likely will need a copy of your recent Tax Returns and last year’s W2 statement. In addition, you will need Bank statements, Retirement statements and Mortgage statements. Now is the time to get a copy of these documents as your attorney will need them.
  3. Credit Cards: Make a list of your credit cards and also get at least one year of statements. Most credit card accounts have at least one year of statements available online.
  4. Get Your Own bank account: You should open up your own bank account (both checking and savings). It is also a good idea, to open up the new bank account at a different bank than the one you have with your spouse.
  5. Start Saving Money: Start putting money into the new bank account. If you are employed, then you may want to put your paycheck (or some of your paycheck) into the new bank account.
  6. Get a new accountant or talk to the one you have. In many divorces, you may want to obtain a new accountant. The time to start looking for one is now. Your new accountant can help you with your tax returns and maybe give you good financial advice. If you want to keep your existing accountant, you may want to talk to him/her and see what financial advice they can give you.

All the above steps will help to facilitate your divorce — even if the Coronavirus will delay things.

If you are considering getting divorced, then you need an experienced attorney who can help you. David Badanes can be contacted at 631-239-1702.

Tips for Managing Child Custody and Visitation During Quarantine

Currently, most of New York State is under quarantine orders. This has created some issues and problems as it relates to child custody and visitation. Here are some tips on how to manage child custody and visitation.

Follow Existing Orders: If you have a Court Order, then to the best of your ability you need to follow such Orders. If you have any questions about how to do this, then you should consult with your attorney.

  • If You Have the Coronavirus: If you have the Coronavirus or suspect that you have it, of course, the first thing you need to do is seek medical attention. If you have to isolate yourself, then do so. During your isolation or if you are instructed by medical professionals, do not see your children and let the other parent know that you have the Coronavirus or suspect that you have it.
  • Get re-tested: If you were diagnosed with the Coronavirus, then once you can, get re-tested to make sure that you are well enough to see your children. Inform the other parent that you now are symptom-free and that you can see your children.
  • Talk to your children: If your children are old enough to understand, then you should have an age-appropriate conversation with your children about the Coronavirus and how it affected you.
  • If you do not have the Coronavirus and the other parent prevents you from seeing your children, then you must contact your attorney.

David Badanes and the Badanes Law Office, P.C. have helped numerous clients in their child custody and visitation issues and in obtaining a divorce. Please like us on Facebook to get important legal news, tips, and articles: www.facebook.com/BadanesLawOffice.

Court Ordered Mediation in Suffolk County, NY

Suffolk County has recently implemented mandatory mediation for all divorce cases (although, there are some exceptions, such as cases involving domestic violence). The mediation is held at the courthouse. The mediators could be a retired Judge, a specially trained court mediator or an attorney.

Although, the mediation is mandatory, the parties only have to attend one mediation session. If, either party decides that mediation is not going to work, they can notify the court and they will not be required to attend any more mediation sessions. Similarly, at any time during the mediation process, either party could also end the mediation process.
The parties can attend the mediation sessions without their attorney or they can have their attorney present during the mediation session. However, most parties will choose to attend the mediation session without their attorneys.

One of the advantages of Court-Ordered mediation sessions is that they are free. Yet, like any mediation, there are also disadvantages of the mediation process — especially when it is Court-Ordered.

Typically, if parties have chosen to file a divorce through the court process, mediation may not be the best option for them. They probably do not trust each other. In addition, at least in this stage of the divorce, the parties may not be willing to compromise.

If you live in Suffolk County, David Badanes, Esq, and the Badanes Law Office, P.C. can explain how the Court-Ordered mediation service works. David Badanes, Esq. and the Badanes Law Office, P.C., have helped numerous clients in their divorces and can help you as well.

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If You Are Getting Divorced – Should You File a Joint Tax Return?

Even if you are in the middle of a divorce, you can still file a joint tax return. According to the IRS, you are still considered “married” if your divorce is not finalized on December 31st of the taxable year (for example, for your 2019 taxes, provided your divorce is not finalized on December 31, 2019, you can file a joint tax return). The IRS does not care if your divorce is “almost” final or you haven’t been living together for years. It is a strict rule, divorced by December 31st – yes or no?

As you may know, most married couples will receive a greater refund or pay less in taxes by filing a joint tax return as opposed to an individual tax return. However, by filing a joint tax return, you open yourself up to whatever tax fraud or under-reporting of income that your soon-to-be-ex may be engaging in.

If you believe that your soon-to-be-ex is engaging in the under-reporting of income or is filing a fraudulent tax return, then you should not file a joint tax return. Although, it was your spouse who engaged in the illegal action, you still might be liable for 50% (or even 100%) of the tax liability and tax penalties. To relieve yourself of liability, you can state that you were an “innocent spouse” and that you should not be held liable for your spouse’s wrongdoing. However, it is very difficult to prove that you were the “innocent spouse” and most of those claims are rejected.

It is important to note, that whether or not your divorce is final, or even if you are in a “happy” marriage, everyone has the option to file a separate tax return — while you are married. You cannot be forced to file a joint tax return. Just be aware, that 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.

If you are married, and you are going to file a separate tax return, then you may have to coordinate certain deductions and exemptions with your spouse. For example, if you have children, you will have to decide which spouse will receive the tax exemption for the children. This can be done either by an agreement between both parties or a Court order stating which spouse will receive it. Other examples include who will take the deduction for mortgage interest, real estate taxes and charity.

David Badanes and the Badanes Law Office, P.C. David Badanes and the Badanes Law Office, P.C. have years of experience and can guide you through the divorce process. David Badanes can make sure you make the right decisions, whether it is about your tax returns or other important decisions.

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What Happens To Your Inheritance When You Divorce?

You may receive an inheritance before you are married, after your marriage, but before your divorce is started, or while in the middle of your divorce. This blog will explain what happens to your inheritance in all of those situations. I’ll assume that the inheritance was cash and not jewelry, artwork or some other physical personal property. However, the basic rules apply to cash and to personal property.

Inheritance before you are married: Any inheritance you receive before marriage is 100% yours. However, it only remains 100% yours as long as you keep the money in a separate bank account. If you deposit the inherited money into a joint bank account, then it is likely that the money will be considered a joint asset, and one that has to be divided 50/50.

Inheritance after you are married (but before the divorce is started): Provided the inheritance you receive after marriage is clearly designated to go to you, then that inheritance is 100% yours. However, similar to money received before you are married, the money only remains 100% yours as long as you keep the money in a separate bank account. If you deposit the inherited money into a joint bank account, then it is likely that the money will be considered a joint asset, and one that has to be divided 50/50.

Inheritance after the divorce is started: Provided the inheritance you receive after marriage is clearly designated to go to you, then that inheritance is 100% yours. Now that the divorce has started, there should be no reason that you deposit the money into a joint bank account. Yet, if you did, once again, any money deposited into a joint bank account would almost definitely be considered a joint asset, and one that has to be divided 50/50.

Therefore, if you receive an inheritance, before you file for your divorce, or even in the middle of a divorce, you can easily protect the amount that you receive. You need to directly deposit the inheritance into your own separate bank account. You should also document the amount of the inheritance, by photocopying the inheritance check and keeping that in a safe place. You should also keep a copy of the bank statement, showing the amount of the inheritance.

By taking these simple steps, your inheritance will be considered your “separate property” and therefore is not part of the marital assets.

If you have a question about your divorce, or how you can protect your inheritance, then contact David Badanes, Esq. and the Badanes Law Office, P.C. David Badanes has represented countless clients in their divorces and can help you.

If you are thinking of getting divorced, and live in Suffolk County, Nassau County or New York City, call David Badanes and the Badanes Law Office at 631-239-1702, email at david@dbnylaw.com.

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What You Need to Know About Child Custody (in New York)

By David P. Badanes, Esq.
If you are getting divorced and have children, issues involving the children are usually the most difficult ones. As with most things in a divorce, either you and your divorcing spouse can enter into an agreement about child custody or the Court will issue a child custody order. When discussing child custody, it is important to distinguish the concept of decision-making and the concept of time with the child. Although, the two concepts are related, just because one parent has more time with the child does not necessarily mean that parent has decision-making authority. This article will focus on decision-making.

Most Judges will tell you that they prefer if the parents can come to an agreement about child custody. Most attorneys will agree with that assessment. A child custody agreement will almost always be more detailed than a Court’s Order. Having a more detailed agreement, will help to prevent future disagreements. Of course, there are situations where the parties just will not be able to agree and a Court’s Order will be necessary.

What does a Child Custody Order or Agreement decide? All custody orders should decide who gets to make the following Three Major Decisions: (i) Medical Decisions; (ii) Educational Decisions (including what school the child attends); and (iii) Religious Decisions. In addition, the following other areas should also be in any child custody order or agreement: (i) Extra-Curricular Activities; and (ii) Where the Children live.

When it comes to making the major decisions for a child, there is

  1. Sole Legal Custody: A parent who has sole legal custody will get to make all the major decisions for the child. Furthermore, in most instances, that parent will also get to make the decisions about what extra-curricular activities the child engages in.
  2. Joint Legal Custody: In theory, joint legal custody means that both parent have equal decision making power for the children. However, in practice this might not be true. Oftentimes, when there is a difference in opinion on a major decision, one parent may have the right to have “final decision making”. In other instances, one parent may have the right to make decisions on one area (for example, medical decisions), and the other parent may have to right to make decisions in a different area (for example, educational decisions).

Although, typically the parent who has sole legal custody will have more time with the children, that is not always the case. Similarly, just because the parties have joint legal custody does not mean that each parent will have 50% of the time with the children. Indeed, in most cases, one parent will still have the majority of the time with the children, but, they still may have joint legal custody and the right to share decision making.

If the Court is forced or makes the custody order, then it will almost always award one parent sole legal custody. The Court decides custody by determining what is in the “best interests of the child.” In order to do that, here are some of the main factors that the Court will consider:

  • Willingness to foster a relationship with the other parent
  • Child’s preference
  • Who has been the primary caregiver
  • Availability of the parent
  • Quality of Care
  • Abuse or neglect
  • Domestic Violence
  • Alcohol or Drug abuse

As already stated, whether or not there is sole legal custody or joint legal custody, does not necessarily direct which parent has most of the time with the children. There are many different ways that the children can spend time with each parent. That will be the subject of a separate blog.

If you have questions about child custody, you are seeking custody or you are seeking a divorce, contact David Badanes, Esq. and the Badanes Law Office, P.C. David Badanes and the Badanes Law Office, P.C. have represented numerous parents in their custody actions and in their divorce. If you live in Suffolk County or Nassau County, 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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Five Reasons Why You Should Not Wait To Start Your Divorce

The decision to get a divorce is never an easy one. As many Judges tell me: “No one gets Married thinking they will get Divorced.” Although, you may know that your marriage is “over”, yet, you may be reluctant to start your divorce. Here are five reasons why you should not wait to start your divorce:

  1. Alimony/Maintenance: If there is going to be alimony (now called spousal maintenance), then the longer you are married, the longer you may have to pay alimony.
  2. Marital Assets: Until you start your divorce, every asset and money you earn is typically going to be considered marital property. The sooner you start your divorce, the sooner that you cut-off your spouse getting half of your assets.
  3. Debts: The flip side of marital assets is marital debt. In general terms, any debt that is accumulated before the commencement of the divorce is considered marital debt and you could be required to pay half of that debt. So, if your spouse is accumulating marital debt, then the sooner you start your divorce, the sooner you can stop being held responsible for that debt.
  4. Children: If you have children, staying “unhappily married” or in a “toxic home” will have negative effects on your children. As difficult as a divorce may be for the children, living in a household where the parents are always fighting or the tensions are high are usually worse for the children.
  5. Domestic Violence: If there is domestic violence, clearly you should not wait to start the divorce process.

If you are considering getting divorced, then you need an experienced attorney who can guide you through the process. David Badanes and the Badanes Law Office, P.C. have the experience to get you through the divorce process. They have represented hundreds of clients. Check out our reviews on Google. 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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