How Does Gambling Debts Affect My Divorce

Many divorces are caused by one spouse’s alcoholism or gambling addiction. The Courts recognize that alcoholism and gambling addictions are diseases. However, in many of those divorces, the spouse’s addiction has caused the parties to suffer severe debts or financial strain. This article will focus on how a spouse’s gambling addiction can affect your divorce.

When considering gambling, if your spouse’s gambling was only done infrequently or only resulted in small amount of losses, then the court may not consider that in its decision. Generally, a court will only consider a spouse’s gambling when it resulted in large spending and/or large losses.

It is important to note, that the general rule is that marital assets are typically divided evenly and that marital debts are divided 50% to each party. Yet, if one spouse was gambling the party’s funds, the court may consider that in dividing the party’s debts or their assets. If the court believes that one spouse wasted marital assets or marital funds with their gambling addiction, then the court may grant you a larger share of the marital assets or decide that you have to pay a lesser share of the marital debt.

However, the court may also consider that you encouraged or condoned your spouse’s gambling habit. You may have gone with your spouse to the casino etc. In those situations, the court may not sympathize with your situation and decide that you only get 50% or the assets and/or still have to pay 50% of the debts.

If your spouse was engaged in gambling, then you will have to demonstrate to the court the extent of your spouse’s gambling habit and also that you did not approve of the gambling. You can show that your spouse took large withdrawals at a casino or that they charged large amounts on a credit card at a casino. If your spouse’s gambling habit was at a different venue, you can show the spending at that venue. In addition, to show that you didn’t approve of the gambling, you can produce emails or text messages.

If you are considering getting divorced, and your spouse’s gambling addiction is one of the causes of the divorce, then you need an attorney who can protect you. Visit us on Facebook to get important legal news, tips, and articles: www.facebook.com/BadanesLawOffice.

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.

Immunizations and Divorce

New York State recently passed a new law, whereby children must be vaccinated against measles and other diseases to attend public or private school. The only exception, that would allow a child not be vaccinated and to attend public/private school, is if there is a valid medical exemption. Before the new law was passed, New York State recognized religious exemptions to the mandate that children must be vaccinated.

The change in the law will also affect child custody issues in a divorce (and in non-divorces where child custody is an issue). There are already examples where one parent wants to have their children vaccinated and the other parent does not want to vaccinate. Courts will now have to consider the issue of immunizations as it relates to child custody. Furthermore, lawyers will need to consider how immunizations are to be handled in their divorce agreements.

WHAT DOES THE NEW LAW SAY NOW?

As stated above, as of June 13, 2019, there is no longer a religious exemption to the requirement that children be vaccinated against many diseases in order to attend either: (1) public, private or parochial school (for students in pre-kindergarten through 12th grade) or (2) child daycare settings.

Although, the new law is being challenged, in the past, the United States Supreme Court has stated that a State can mandate that children are vaccinated in order to attend public school. To date, New York Courts have also agreed with the United States Supreme Court. In addition, New York Public Health Law § 2164 obligates parents to have their children vaccinated against diseases, and New York Education Law § 914 obligates schools to enforce and comply with the aforementioned statute.

Accordingly, as of now, it is constitutional for New York State to require that you vaccinate your child in order for that child to attend public/private school.

HOW WILL THIS EFFECT CUSTODY?

A Court or a Judge cannot force a parent to vaccinate their child. However, by granting custody to a parent that either want to vaccinate the child or to a parent that does not want to vaccinate the child, the Court is essentially deciding if the child will be vaccinated.

As always, a Court/Judge will decide custody on the basis of the “best interests of a child” test. One of those factors may be if a parent wants to vaccinate their child. Many judges would probably agree that vaccinating a child is safer for both the child and the general welfare of the community. However, that would be just one factor in the Court’s decision.
Clearly, the decision to vaccinate your child is a personal one. As it relates to a divorce or child custody, parents may have legitimate differences on whether or not to vaccinate a child. With the new New York State law, when considering child custody issues, Courts and Judges may find themselves having to consider this issue.

If you are u are considering getting a divorce or have a child custody issue, 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.

By David P. Badanes, Esq. and Hayley Hayden

Can I Cash Out My 401K (or other retirement assets) Before the Divorce is Final?

In almost every case, you cannot cash out your 401K or other retirement type assets before your divorce is final. In New York, once a divorce case is filed, neither party can withdraw (or cash out) any monies from a 401K, IRA or any other type of pension/retirement account.

The only exception to this rule, would be: (1) if the Court gave you an explicit order allowing you to do this; or (2) if both parties agree, in writing, to allow you to do this.

By the way, this rule applies whether or not you believe the 401K is “your” money or that it existed before the marriage. The rule is a blanket rule and does not make any exceptions as to whether or not the 401K is considered a marital asset or is your separate asset.

If your money is tied up in a 401K or pension/retirement asset and you want access to it, you should consult with your attorney on how you may be able to cash it out or to borrow from it.

If you have a 401K, IRA, pension or retirement asset and you are considering getting a divorce, then contact David Badanes, Esq. and the Badanes Law Office, P.C. David Badanes provides real-world advice and has helped countless clients in their divorce and can help you as well.

Please like us on Facebook to get important legal news, tips and articles: www.facebook.com/BadanesLawOffice.

Back to School Tips for Separated or Divorced Parents

Going back to school can be a stressful time for a child, especially when their parents are newly divorced. However, with proper communication and cooperation, the parents can make the transition to school much easier for the child.

  1. Make your child your top priority: Your child’s wellbeing should be your top priority. Any issues you have with your ex-spouse should not affect your child’s educational experience.
  2. Attend school events with your ex-spouse: Whether it be parent-teacher conferences or various school functions, it is important that you both attend school events and conferences. Your child will benefit from having both parents attend their school events.
  3. Work with your ex-spouse as much as possible: Although there may be tensions between you and your ex-spouse, it is important to keep these differences outside of the school setting.
  4. Review home routines and rules with your ex-spouse: Routines are crucial to your child’s success at school. The smoother the transition between the child’s homes, the easier it will be for your child to maintain focus on their school work. Be sure to communicate and standardize bedtimes, mealtimes, playtime, and screen time.
  5. Communication is key: Be sure to communicate any schedule changes, or relay important information given by the school, after school advisors, or coaches to your ex-spouse. It is especially important to do so when the child’s school activities conflict with the other parent’s time with the child.
  6. Back to school shopping expenses: Typically, back to school expenses are the responsibility of the custodial parent. However, offering to help with these expenses may help ease tensions between you and your ex-spouse.
  7. If you are going through a divorce and need an attorney, contact David Badanes at 631-239-1702 or david@dbnylaw.com. Please like us on Facebook to get important legal news, tips and articles: www.facebook.com/BadanesLawOffice.

    By: David P. Badanes, Esq. and Hayley Hayden

Google Maps and Your Divorce

You probably have used Google Maps or some other Internet Mapping Program to help you find an address or to give you directions. However, until recently, a New York Court did not have to automatically allow you to introduce into evidence Google Maps or any other Internet Mapping Program.

However, as of December 28, 2018, a New York Court can take judicial notice, subject to a rebuttable presumption, that Google Maps etc. is valid and can be entered into evidence.

Why is this important? and What does it mean?

In a divorce, sometimes the distance between the parties’ residence can be important, especially when it comes to child custody cases. If one parent lives far away from the child, then this can be an issue as it pertains to custody and parenting time. To establish distance or directions, your attorney may have to use Google Maps.

Prior to the new law, if someone wanted to use Google Maps etc., they had to prove to the Court that it was a valid map. This would take time and, in some instances the Court would reject the Google Map.

Now, the Court can take judicial notice, this means that the Judge should allow the Google Maps etc. to be admitted into evidence. There is a safeguard, as the other side can still object to the Google Map, but, that side has the burden of proof to show that the Google Map is invalid or does not fairly and accurately portray what is being offered to prove.

There are always changes in the law, David Badanes, Esq. and the Badanes Law Office, P.C. keeps up with these changes and makes sure that they are used to help their clients. Please like us on Facebook to get important legal news, tips and articles: www.facebook.com/BadanesLawOffice.

Can You Date Before The Divorce is Final?

Unless there is a specific Court Order stating that you cannot date before your divorce is final, you can date someone while the divorce is pending and before your divorce is final.

Although you are typically allowed to date, most Judges do not want you to have your new paramour introduced to any of the parties’ children. This means that you should not have dinner with your children and your new boyfriend/girlfriend. In general terms, you should not be spending time with your new boyfriend or girlfriend and with your children.

Furthermore, you should not be spending marital assets on the new boyfriend/girlfriend. This means that if you still have a joint bank account with your spouse, you should not be withdrawing monies from that account and then spending it on your new boyfriend/girlfriend.

You should also refrain from taking your new boyfriend/girlfriend on any vacations or on spending any exorbitant amount of monies on the new paramour.

If you need legal advice and are seeking an attorney, 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 us on Facebook to get important legal news, tips and articles: www.facebook.com/BadanesLawOffice.

Your Ex Never Shows Up For Scheduled Visits – What You Can Do

Unfortunately, in some divorces, one of the parents will constantly not show up for their scheduled visits (parenting time) with the parties’ children. This can be especially frustrating when the location for the exchange of the children is at a location that is not your residence. Here are some things you can do if your ex is not showing up for scheduled visits.

  1. Keep a log (diary) of each time that your ex does not show up. Make sure your log states the date and how long you waited. In general, you should wait at least 15 minutes before leaving the exchange location.
  2. Text your Ex. Since virtually everyone has text capability, you should text your ex prior to the exchange time (about 30 minutes before) and then also text your ex when you are at the exchange location. If the exchanges are at your residence, then you can text at the time when the ex is supposed to be there. Make sure to save and print out your text messages.
  3. Send letters to your Ex. After three or more “no shows”, you should send a letter to your ex, stating that he/she did not show up at the exchange time or location. In the letter, you can state that unless your Ex gives prior notice that he/she will arrive on time for the next visitation time, that you will not be there for the next exchange. It is good advice to have your attorney send this letter. It is also good advice to send the letter by certified mail, return receipt requested.
  4. Go to Court. You may want to go to Court to get a Court order stating that you do not have to wait for your ex to show up at the exchange location.

If you are seeking a divorce or need to hire an attorney, please 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 us on Facebook to get important legal news, tips and articles: www.facebook.com/BadanesLawOffice.

Am I Responsible for the Debt My Spouse Had Prior to Our Marriage?

If you are going through a divorce, you might be wondering if you are responsible for the debt that your spouse had prior to your marriage? Typically, the answer is that you are not responsible for any pre-marital debt that your spouse had.

Any debt prior to a marriage is not considered as part of the “marital debt” and therefore is not your responsibility. However, in order to escape any reliability that such debt is not your debt, you need to show documentation which shows that the debt existed prior to the marriage. Furthermore, if the debt was a credit card debt, then you have to show that you did not add to that credit card debt after the marriage. If you did use that credit card or added to that credit card debt, then it might be difficult to show which debt is pre-marital and which credit card debt is post-marriage.

In many cases, one party may have had student loan debt prior to the marriage, in almost all cases, you will not be responsible for your spouse’s student loan debt that was incurred prior to the marriage.

Similarly, if your spouse had personal loans or automobile loans that existed prior to the marriage, and that still exist after the marriage, you should not be responsible for that debt.

Although, it is a good idea to have a pre-nuptial agreement that discusses each parties’ debt, it is not necessary to avoid paying for your spouse’s pre-marital debt.

In a divorce, there are many questions about debts and assets that will need to be answered. David Badanes, Esq. and the Badanes Law Office, P.C. can answer those questions for you. If you are seeking an attorney to represent you in your divorce, then contact David Badanes and the Badanes Law Office. 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 us on Facebook to get important legal news, tips and articles: www.facebook.com/BadanesLawOffice.

What if My Ex-Spouse Excessively Calls or Texts Our Children During My Parenting Time?

With the ease of cell phones, your spouse may abuse his/her privileges to call or text your children during your parenting time. Here are a few tips of what you can do.

  • Establish Set Days & Times For Calls & Texts: One of the most effective methods to limit excessive phone calls and excessive texting, is to have set days and times for such communication. For example, depending on the age of the children, you might want to state that your ex can call or text every night from between 8 p.m. to 8:30 p.m. You also need to explain to your ex that any other calls or text messages will be ignored.
  • Use a Specialized Application (e.g. Family Wizard): If your ex still abuses phone calls and texting, then you can use a co-parenting application that can keep track of the excessive phone calls or text messages.
  • Contact Your Attorney: You can contact your attorney who can then send a “cease and desist” letter to your ex (or your ex’s attorney). The cease and desist letter will inform your ex that they are not to continue their excessive phone calls or excessive texting. If need be, your attorney may have to file a petition to court.

Although, there is no excuse for excessive telephone calls or excessive texting, your spouse does have the right to call and text the children (unless there is a court order that states otherwise). If your spouse is only calling once a day or has a few text messages, then that will be allowed.

Whether you are going through a divorce or you are already divorce, many times one of the issues that leads to conflict is your ex-spouse excessively calling or texting the children. If you are contemplating a divorce or you have been served with divorce papers, then contact David Badanes and the Badanes Law Office. The Badanes Law Office has offices in Suffolk County and Nassau County. Their phone number is 631-239-1702, David’s email is david@dbnylaw.com or you can visit us on Facebook to get important legal news, tips and articles: www.facebook.com/BadanesLawOffice.