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.

Child Support, Child Custody and Parenting Time in Mediation

Some divorcing couples choose to use mediation when resolving their divorce. For couples who can compromise, mediation may be a good alternative. In many divorces, child support, child custody, and parenting time issues are the most contentious issues. Those issues can also be resolved in mediation.

If you choose to use mediation, then this is how issues surrounding children can be resolved:
Child Support: In New York, there is a child support formula. However, with mediation (and also in a contested divorce), you can choose to modify the amount that the formula calculates. There are many reasons why you might want to modify the amount of child support. Some examples: (i) perhaps one spouse will pay the mortgage instead of child support; (ii) you might receive more in retirement assets: (iii) you might receive more in personal property; and (iv) because each parent has more parenting time, that might be a reason for less child support.

Child Custody: One of the best uses of mediation is in the area of child custody (and parenting time). Mediation allows the parents to be very creative with how to determine the issues of decision making and custody.

Parenting Time: Similar to child custody, mediation allows a lot of flexibility when it comes to parenting time. With mediation, parents can arrange their parenting time that fits their schedule and the children’s schedule.

As with any divorce agreement, it is important that in mediation the written agreement is clear and specific. If you choose to use mediation, make sure that the mediator actually drafts the final divorce agreement. Some mediators will only draft a summary or a “memorandum of agreement”, which is not a full blown divorce agreement.

Although mediation can be a good option, there are situations where mediation is not appropriate. For mediation to succeed, both parents have to be: (1) willing to compromise; (2) be able to talk in a civil and respectful manner to each other; (3) be able to listen to the other parent’s opinions and points of view; (4) ready to get divorced; and (5) willing to present fair and realistic options.

In addition to being an attorney, David Badanes, Esq. is also a mediator. Mr. Badanes has conducted numerous successful mediations. If you are seeking mediation, then contact 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.

What Do All the Legal Documents Mean in a Divorce?

In a divorce, there are many legal documents that get filed with the Court. Here is a brief summary and explanation of those documents:

  • Summons: This document states the names of the two parties (Plaintiff and Defendant), the name of the Court where the case is filed, the attorney’s contact information, and some other basic information. Once the Summons is filed, it will be assigned an Index Number. There are two types of “Summonses”, one is simply a “Summons”, the other is a “Summons With Notice”. If it is “Summons With Notice”, it will state that the Plaintiff is seeking a divorce and a brief summary of the relief the Plaintiff is seeking (for example, child support, spousal maintenance etc.). Both the Summons and the Summons With Notice have to be properly served upon the Defendant and upon serving the Defendant, the Defendant typically has 20 days to respond to either type of Summons.
  • Complaint: Will give the basic facts of the case, such as date of marriage; children’s names; parties’ addresses; and the cause of action (in a divorce, it is almost always “no fault divorce”) and finally, what relief the Plaintiff is seeking (similar to the type of relief that a Summons With Notice requests). The Complaint will also have to be properly served upon the Defendant, and the Defendant will need to respond with an Answer.
    Answer: The Defendant will respond to the complaint by providing the Answer. The Answer will typically state that the Defendant denies the substantive parts of the Complaint. In some cases, the Defendant may respond with an “Answer with Counterclaims”.
  • Counterclaims: A counterclaim is the mirror image of a Complaint, but, they are the Defendant’s “complaints” against the Plaintiff.
  • Reply: If the Defendant files a counterclaim, then the Plaintiff has to respond with a Reply, which is the mirror image of the Answer.
  • Request for Judicial Intervention (“RJI”): In New York, a Judge will not be assigned to your case until a RJI is filed. By filing a RJI, you are requesting that a Judge be assigned and depending on how the RJI is filled out, what you are asking the Judge to do.
  • Orders (and Decisions): During the divorce process, the Court may issue several Orders and/or Decisions. An Order is issued by the Court, and gives a specific command or direction for the parties to follow. A Decision may be how the Court decides a certain issue. For example, the Court may show how the Court decided child custody, spousal maintenance and a host of other issues. In some Orders, it may have several decisions. Depending on the Judge, a decision and an order may mean the same thing.
  • Stipulation of Settlement: In New York, a Stipulation of Settlement is typically the agreement that resolves all the issues in the divorce. It will be signed by both parties and also notarized. In most divorces, this will be a very extensive document.
  • Note of Issue: This informs the Court that all discovery has been completed and that the divorce is ready for trial. If the parties have settled the divorce, the Note of Issue will indicate that no trial is necessary.
  • Judgment of Divorce: Once the Judgment of Divorce is signed, you are officially divorced. The Judgment of Divorce will contain the basic findings and orders of the Court. Oftentimes, the Judgment of Divorce will refer to the parties’ Stipulation of Settlement.

Divorce is complicated and there are many legal documents that will be filed with the Court. In order to make sure that your Divorce is handled properly you need an attorney who can explain all these documents to you and make sure they are properly completed and filed. 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 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.

Adultery and Your Divorce (Adultery is Still A Crime in New York State)

New York is now a “no-fault” divorce State. This means, that you do not have to demonstrate fault in order to get divorced. This also means, that in a divorce, the Court is not concerned with why you are getting divorced, they are only concerned with the issues of the divorce (e.g., child custody, child support, spousal maintenance, distribution of assets, etc.).

However, some clients want the Court to find that their spouse committed adultery and want to punish their spouse for their actions. Although you can still add adultery as one of the reasons why you want to get divorced (called a “cause of action”), virtually every Judge will want to handle the divorce without deciding adultery. It is extremely difficult to prove your spouse committed adultery. Adding adultery as a cause of action will increase the time to get divorced and also add the amount of money you need to spend to get divorced. Accordingly, it is extremely rare to add adultery as one of the reasons why you are seeking a divorce.

Yet, despite the fact that the divorce court will not consider adultery as one of the reasons why you are getting a divorce, adultery is still a crime in New York State. Adultery is classified as a Class B misdemeanor. This means that technically you could go to jail for up to 90 days and pay a fine.

However, it is extremely rare for anyone to be arrested just for adultery. Indeed, since 1972, only 13 persons have been charged with adultery. Of those 13 persons, only five actually were convicted of the crime. In virtually every one of those cases, there was some other crime that was committed and the prosecuting attorney added adultery as just one of many crimes committed.

Therefore, although adultery is still technically a crime, there is extremely little chance that you will be prosecuted for the crime. Furthermore, in a divorce, whether or not you or your spouse committed adultery will not be the basis of your divorce.

If you live in Long Island and need an attorney, then call David Badanes and the Badanes Law Office 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.

Traveling With Your Children – During and After Your Divorce

Here is what you need to know about traveling with your child – during and after your divorce.

For International Travel:

  • Passports: If your child is under the age of 16 years of age, both parents must sign the child’s passport. Both parents should also be present when you obtain the child’s passport. However, if one parent is not there, that parent can sign a document giving their consent. If the child is over the age of 16, only one parent has to sign the child’s passport.
  • Children’s Passport Issuance Alert Program: This is a program run by the State Department that verifies that both parents have consented to allow a child to travel with a passport.

For Both International and Domestic Travel:

  • Itinerary (Knowledge) of Travel Plans: The parent who is not traveling, should be provided with the full itinerary of the traveling parent’s travel plans. They should know where the children are going, what airlines and flights they are taking, and what hotels they are taking. They should also know exactly what days that the children will be away from home.
  • Prior notice: In most divorce agreements, you will need to give adequate prior notice to the other parent on the information stated above.

What if you object to the children’s travel plans?

If you object to the children’s travel plans, you should first consult with your attorney. You may be able to present your objections to the Court (typically in the form of an emergency motion). However, in order to succeed, you need to have a very good reason why the children should not be permitted to travel.

One area where you may have a legitimate reason for concern is where there is a reason to believe that the parent is not going to return from their international travel. You should determine if the United States has extradition rights with the destination country or if the destination country is part of the Hague Convention treaty.

David Badanes and the Badanes Law Office, P.C., have provided legal advice and common sense advice to numerous parents about traveling with their children. If you have questions about traveling with your child or you are seeking a divorce, contact: 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.

In a Divorce – Does it Matter if I’m the Plaintiff or Defendant

For New York Divorce cases, there will be a Plaintiff and a Defendant (in other States, they may be called a Petitioner and a Respondent). Does it matter if you are the Plaintiff or the Defendant? The short answer is that it really doesn’t matter.

Unlike most every other type of case, in a divorce, whether you are the Plaintiff or the Defendant, has virtually no effect on the ultimate result of the divorce. This is because New York, like every other State is a “no-fault divorce State.” Therefore, you do not have to “prove” that you are entitled to a divorce. So, you do not have to meet your burden of proof to show that you are entitled to a divorce. In contrast, in other types of cases, the Plaintiff has to establish that they “win” by a preponderance of the evidence, clear and convincing evidence or in a criminal case, by showing the Defendant is guilty beyond a reasonable doubt.

In a divorce case, no one is deemed guilty and no one is deemed to be “at fault.” This is why it really doesn’t matter which person is the Plaintiff and which person is the Defendant.

In a divorce case, the Plaintiff is the person who filed for the divorce. If there is a trial, the Plaintiff will be the person who has to present their witnesses first. After the Plaintiff presents all their witnesses, then the Defendant will then bring forth their witnesses.

However, there are some small differences in being the Plaintiff compared to being the Defendant. The Plaintiff will pay the fee to file the Summons ($210) and typically will have to file the fees for getting a Judge assigned ($95) and a document called the Note of Issue ($30). In general, the Plaintiff is also responsible for making sure all the documents are filed to finish the divorce process. In addition, the Plaintiff will have to make sure that the Defendant is properly served and will usually hire a process server to effectuate the service.

The Court and the Judge do not give an advantage or disadvantage to whether you are the Plaintiff or the Defendant.

There are many other issues in a divorce, and they can be complicated. You need an expert attorney who can guide you through the process. David Badanes, Esq. and the Badanes Law Office, P.C. have represented countless clients and have achieved excellent results. Contact David Badanes and the Badanes Law Office 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.

Can My Soon-To-Be-Ex Legally Take the House I Inherited?

You may have inherited a house prior to your marriage or even during the marriage. Provided that you have not placed your spouse on the Deed to this house, then your soon-to-be ex-spouse does not have any legal right to the house. However, they may have some rights to be financially compensated.

If you did place your spouse on the Deed, then the house may be considered a marital asset that has to be equitably divided (not necessarily 50/50, but in a “fair” manner).

Even if you didn’t place your spouse’s name on the Deed, if your spouse can show that they paid the mortgage or other expenses for the house, then they may be entitled to financial compensation. For example, if the mortgage was paid from your spouse’s own bank account, then they may be entitled to receive some monies from the eventual sale of the house or from the divorce.

Therefore, if you inherited a house or any type of asset, you should make sure not to place your spouse on the deed. You will also want to keep an accounting of how the expenses were paid for the house.

David Badanes and the Badanes Law Office, P.C., have helped hundreds of clients in protecting their inherited homes. If you have questions regarding any property that you inherited, and how to protect it, 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 on Facebook to get important legal news, tips and articles: www.facebook.com/BadanesLawOffice.

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.