Tag: divorce law

National Law Day (May 1st) and What It Means for Your Divorce

by David Badanes | April 19, 2021

In 1958, President Eisenhower declared May 1st to be Law Day in the United States. Although it is not an officially recognized government holiday, it is a day to celebrate law universally and spend time discussing how the law is meant to protect the people. In many cases, people are unaware about the many laws that affect them on a daily basis and this day is meant to raise awareness and inform them of these matters.

In the case of divorce law, it’s even more common for couples facing distress to have a hard time understanding the divorce process and how these laws will affect them. David Badanes, Esq. and The Badanes Law Office, P.C. are taking the time this Law Day to explain the history of divorce law and how each individual’s cases can be impacted.

It is often stated that it is much easier to get married than it is to get divorced. This is generally a true statement. For example, in New York, there are very few legal requirements in order to get married.  You certainly never have to get a Judge’s permission or get a Court Order in order to get married. In contrast, once married, to dissolve a divorce you will need to obtain a Court Order – called a Judgment of Divorce (or colloquially a “divorce decree”). When seeking a divorce or if you are the Defendant in a divorce case, your divorce is governed by New York State’s Domestic Relations Law.  This law provides the basis of how a Court will rule on all the issues involved in your divorce.

The intent of the divorce laws is to provide fairness in whatever means necessary. Spousal maintenance, what was once called “alimony,” is in the law to provide economic support for the spouse who might have sacrificed their career or income to support a family. When there are children, the intent of the divorce laws is shifted instead to protect and provide for the children. This means that there is a requirement to pay child support.

In New York, over the last 40 years, there have been significant changes to the divorce laws. One of the most significant changes in New York, is prior to 2010, in order to get divorced you had to prove “fault” or “grounds,” such as (i) abandonment for one or more years; (ii) cruel and inhuman treatment; or (iii) adultery. This was often an impediment to getting a divorce and also costly to the parties. Since October, 2010, New York now allows no fault divorces, where you don’t need to prove any fault, you simply file for divorce and once the issues in the divorce are resolved or determined by the Judge, a divorce will be granted.

While this process and many of these laws may feel overwhelming at first glance, The Badanes Law Office, P.C. is here to help you make sense of all of this.

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, email at david@dbnylaw.com or visit our web site: www.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

by David Badanes | February 18, 2021

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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Timeshares in a Divorce

by Generations Beyond | August 6, 2020

If you and your spouse have a timeshare, then you should make sure that to take care of what happens to the timeshare after the divorce. There are three different ways to handle your timeshare:

One Party Keeps It: If one party wants to keep the timeshare and the other party is okay with not owning the timeshare after the divorce, then it should be possible for one party to keep the timeshare. If one party keeps it, there is the question of how much the timeshare is worth. Then the next question is how much current debt there is and how much will it cost to maintain and keep the timeshare going forward. You will also have to make sure that your contract to purchase or rent the timeshare allows for one party to take over the entire timeshare. It is important that all these considerations are specifically in your divorce agreement

Sell It: In most divorces, the divorcing couple finds that it may be easier to sell the timeshare than to keep it. Yet, selling a timeshare has its own issues. There may be a soft market for the timeshare and you may not be able to sell it. There are companies that will purchase your timeshare. In most cases, the timeshare’s value is minimal, but the companies that purchase it will at least get you out of any long-term contract.

Share It. Some couples decide that they both want the timeshare and neither wants to sell it. In those cases, the couple can agree to share the timeshare after the divorce. Of course, this could lead to problems post-divorce. The divorce agreement must be clear about who will pay for the timeshare and for the yearly maintenance fees. It will also need to be very clear about who gets to use it and how that time period is defined.

Like any property, what happens with a timeshare has to be determined in the divorce process. If you are getting divorced, David Badanes and the Badanes Law Office, P.C. can help you decide what to do with all of your property, including timeshares.

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When and How Can I Withdraw My New York Divorce?

by Generations Beyond | August 4, 2020

Once you start a divorce and file a Summons (or Summons With Notice), you may not be able to simply cancel or withdraw your divorce. To determine when and how you can cancel/withdraw your divorce, you need to follow these general guidelines.

If your Summons hasn’t been served yet: If you filed your Summons, but have yet to serve it, then withdrawing your divorce action is very simple. You simply file a Notice of Discontinuance.

If your Summons has been served, but, the other parent hasn’t responded yet. If the Summons was filed and served, but, the other parent hasn’t responded yet, then withdrawing is still very simple. Once again, the filing of a Notice of Discontinuance will suffice, however, the Notice also has to be served upon the other parent.

If your Summons has been served and the other parent has responded. If the Summons was filed and served and the other parent has responded, then to withdraw requires both parent’s signature and approval. Once both parents approve then the Notice will be filed with the Court.

If you want to withdraw your New York Divorce, you should consult with an attorney to make sure that it is done correctly. David Badanes and the Badanes Law Office, P.C. have years of experience and can help you in getting your divorce cancelled/withdraw.

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Do I Need to File for a Legal Separation Before Filing for a Divorce?

by Generations Beyond | July 29, 2020

In New York State, you do not need to file for a legal separation before a divorce. Although, it is not necessary, some married couples want to first obtain a legal separation before filing for a divorce.

In general terms, the number of legal separations has significantly been reduced in the last few years. The main reason for that is that in the past, many couples chose a legal separation, instead of a divorce, so that they could remain on the other party’s health insurance plan. At least in New York, that reason is now somewhat diminished, as an individual can obtain very good health insurance that is inexpensive and comparable to what they would have had if they stayed married.

There are two ways to obtain a legal separation: (1) Enter into a legally binding legal separation agreement, which then must be entered into the County Clerk’s office; OR (2) get a Judgment of Legal Separation from a Court. The vast majority of legal separations are obtained by a legal separation agreement. It is important to note that just having an agreement is not sufficient, it must be filed with the County Clerk’s Office to be considered a legal separation agreement.

A legal separation does not dissolve the marriage. When a couple files for legal separation, they are still legally married. This is the main difference between a legal separation and a divorce. The other main differences are the effects on health insurance, taxes and potentially retirement assets.

Choosing between a divorce and a legal separation is a personal choice. Some couples want to first have a “trial separation” before they obtain a divorce. Other couples have religious reasons on why they don’t want a divorce. A few couples stay technically married for the children. There is no right or wrong as a legal separation agreement can typically take care of all the financial aspects that a divorce agreement would have.

David Badanes and the Badanes Law Office, P.C. David Badanes and the Badanes Law Office, P.C. have years of experience and can help you obtain a legal separation or a divorce.

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Basic Legal Requirement to File For a Divorce in New York

by David Badanes | June 15, 2020

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

by Generations Beyond | June 4, 2020

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?

by David Badanes | May 12, 2020

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

by David Badanes |

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

by David Badanes |

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.