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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More Millennials Are Getting Prenups – Here’s Why

More and more millennials are getting prenuptial agreements. Unlike the past, millennials do not view a prenuptial agreement as a taboo or as a negative. So what is a prenuptial agreement?

A prenuptial agreement, commonly referred to as a prenup, is a legal document that dictates how a married couple will divide their assets and also how their debts are handled in case of a divorce.

There are many reasons why millennials are entering into prenuptial agreements. One reason that I have heard is that instead of New York State decide how your assets and debts would be handled in a divorce, you can make those decisions. In other words, you have control instead of New York State.

Another reason is that millennials are getting married later in life then generations before them. Millennials (and anyone else who is older) tend to have more assets. They want to make sure that those assets are protected in case of a divorce.

A few other reasons:

  • Female Millennials tend to have more financial information and assets than females in the past.
  • Student Loans: Unfortunately, millennials also tend to have student loans. With a prenuptial, you can make sure that only the person who has the student loan will be responsible to pay it back.
  • Growing up with Divorced Parents; Many millennials grew up with divorced parents. They recognize that not all marriages last forever.

David Badanes, Esq. and the Badanes Law Office have helped many millennials in creating a prenuptial agreement that works for them. If you are about to get married and have assets you would like to protect, 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 our web site: www.dbnylaw.com. The Badanes Law Office has offices in Northport and Uniondale.

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My Ex Spouse and I Have a Verbal Agreement to Modify Our Divorce: Is that Binding?

After your divorce, especially if you and your spouse have children, there may be many times when you and your ex-spouse want to modify or change what your divorce agreement states. Most likely you will just “verbally agree” (or do it via text messaging or email). Is your verbal agreement binding? Is your text message or email binding?

Generally, a verbal agreement is not binding. Similarly, a text message or email is not binding — even if it is signed.

In New York State, in order or a modification of your divorce agreement to be binding, it has to be in writing, have a proper acknowledgment and also be notarized. Simply, having a written agreement that is signed is not sufficient. Even if the document is signed and it has a notary public stamp that is also not sufficient. The agreement must be signed, notarized and have what is called a “proper acknowledgment.”

A proper acknowledgement states that in an addition to a notary recognizing your signature on the document, the notary must also state that the party signing the document orally acknowledged to the notary public that he/she signed the document and that the notary indicate that they ascertained that the signer was the person described in the document.

Therefore, even if you and your ex-spouse come to a verbal agreement and you then want to challenge that verbal agreement you probably can do so. However, the Court can consider your verbal agreement as evidence and still may uphold the verbal agreement.

There will be many times that in practice, you and your ex-spouse should feel comfortable in entering a verbal agreement. Clearly, having to enter a written agreement every time you want a small change to your agreement could be unwieldy and prohibitive. You and your ex-spouse should have at least enough trust that a verbal agreement should suffice.

Of course, if the modification or change to your divorce agreement is a big change, then it probably would make sense to enter into a written agreement and also to hire an attorney to make sure that the written agreement is property drafted.

David Badanes, Esq. and the Badanes Law Office have drafted many modifications and amendments to divorce agreements and have also given advice on what divorced couples need to do to modify their divorce agreements.

If you want to change your divorce agreement or you are considering getting divorced, then 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 our web site: www.dbnylaw.com. The Badanes Law Office has offices in Northport and Uniondale.

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How Are Divorces Being Affected by the Coronavirus?

The Coronavirus is affecting all aspects of our “normal” life. The Court system is no exception. The Courts have decided that only “emergency” applications and filings will be allowed.

So far, in Suffolk County, they are not accepting new divorce actions. In Nassau County, you can commence a new divorce action by e-filing. If you have a pending divorce, most likely any court appearances have been adjourned to a date in May or even to a later month. If there are any pending motions, they will be extended.

If there are any temporary orders of custody or support, they are continued. If there is a temporary order of protection that is scheduled to end, then the end date has been indefinitely extended until the Coronavirus emergency is over.

In summary, your divorce action is basically “on hold”. However, it is important to note that each Judge may be handling your case differently. Therefore, you should always check with your attorney to confirm what exactly has happened to your divorce case.

David Badanes, Esq. and the Badanes Law Office, P.C. is keeping apprised of the new developments as it pertains to the Coronavirus. David Badanes have helped countless clients going through their divorce and navigating them through the process.

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After a Divorce Can I Still Collect as a Beneficiary?

It is fairly common that during a marriage, you will name your spouse as a beneficiary to your life insurance policy, mutual funds, retirement accounts, trust and other similar assets. When you get divorced, your divorce agreement should explicitly state that you revoke that designation — with one very large exception. If there are children involved, the divorce agreement can state that the children are the beneficiary and that your ex-spouse is just a trustee or guardian of the assets.

However, even if the divorce agreement does not explicitly revoke your ex-spouse as a beneficiary, New York State law provides that a divorce automatically revokes such designations. There is an exception to the law, namely if the insurance policy, retirement account or trust expressly states that a divorce does not revoke a beneficiary designation, then in that case, it would not be expressly revoked.

If you have questions about your divorce or you are seeking to get a divorce, contact David Badanes, Esq. and the Badanes Law Office, P.C. David Badanes and the Badanes Law Office, P.C. 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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How the Coronavirus Will Impact New York Divorces

The Coronavirus — that nasty little virus that is causing people to get sick (and unfortunately death), people undergoing self-quarantined, everyone washing their hands, a run on Purell and other disinfectants, and the general upheaval of our daily lives — will also affect your divorce or may even cause more divorces.

As this is being written, New York Courts have issued guidelines to extend timelines, postpone proceedings (whenever possible) and to consider the use of video and telephones in conferences. The goal is to minimize courthouse appearances, maximize adjournments and also to promote the use of remote appearance via video or telephones. Attorneys and their parties may be excused from physically appearing in Court.

However, as of now, adjournment requests for hearings and trials will be determined by each Judge and on a case-by-case basis.

Therefore, it is likely that if you have an existing divorce case, that it will be delayed. If you are thinking of filing for a divorce, you can still do so, but, again, your court dates may be delayed.

Clearly, the Coronavirus and its full impact are still not known and this is a fluid situation. This blog will be updated as more information becomes available.

David Badanes, Esq. and the Badanes Law Office, P.C., keeps track of recent news and makes sure that its clients are well informed on how recent events can effect their divorce.

If you are thinking of getting divorced, please contact David Badanes and the Badanes Law Office, P.C. 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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I Want a Divorce but My Spouse Doesn’t

You may want a Divorce, but your spouse does not. What can you do? New York State is a “No Fault” Divorce State, so, you can get a divorce with or without your spouse cooperating or “wanting” the divorce.

The first step in starting the divorce process is to file a Summons and Complaint (or in some instances, you can file a “Summons With Notice” and then subsequently file the Complaint). Then the Summons and Complaint must be properly served upon your spouse. The key is here is that you must have “proper service”. This means you cannot just give the Summons and Complaint to your spouse. It is highly recommended that you hire an experienced process server to serve the Summons and Complaint upon your spouse. If you hire an attorney, your attorney will most likely handle the entire process of filing the Summons and Complaint and also making sure it is properly served upon your spouse.

What if my spouse states that he/she will not respond to the Summons and Complaint?

Technically, your spouse does not have to respond to the Summons and Complaint. However, if your spouse does not respond to the Summons and Complaint, then you can still get divorced. You would request that the Court give you a default divorce. Your attorney will know how to make sure that you make the request for a default divorce correctly.

In the process of granting a default divorce, the Court will schedule a special court hearing called an “Inquest”. At the Inquest, your attorney will present evidence that your spouse was properly served and will also present the basic facts of your divorce. If applicable, you will be able to make a request for child custody, child support, alimony, distribution of assets and the payment of debts as well of all the other issues of your divorce. In general, terms, since your spouse has not responded to the Summons and Complaint, the Court will grant most of your requests.

The bottom line is that you can get a divorce regardless of whether or not your spouse also wants the divorce.

If you are contemplating getting divorced and believe that your spouse does not want the divorce, 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, even if your spouse doesn’t want the divorce.

Divorce, Judges and Court – What You Need to Know

If you are getting divorced, unless your case is a simple “uncontested divorce”, then a Judge will be assigned to your case and you will need to go to Court. You may even have to go to trial. Therefore, it is important to know what the Judge’s role is and what you need to know when you go to Court.

  1. What Does a Judge Do? Unlike a criminal case, in a divorce case, a Judge does not find you “guilty”, “innocent”, or sentence you to jail (unless they find you in contempt of court, more on that later).


    Before there is a divorce trial, typically there will be many court conferences. Although every Judge handles their court conferences differently, in general terms, at a court conference, the Judge determines the basic facts of the case. Also, before a trial, there may be temporary orders or decisions that apply while the divorce case is pending. A typical example is a temporary order of child support.

    Sometimes, a Judge will tell the attorneys their general feeling about the case. Although these are not formal rulings, your attorney will be able to know which way the Judge is leaning towards and guide you accordingly.

    If there is a trial, the Judge will hear the evidence, rule on any objections and sometimes ask the witness some of their own questions. At the end of a trial, it is extremely rare for a Judge to issue a ruling. Instead, the Judge will compare his/her notes and consider the evidence. The Judge will issue a written decision which is usually mailed to the attorneys.

    As mentioned above, a divorce case is not a criminal case. However, if you disobey a Judge’s Order or act in such a manner that causes you to be in “contempt”, then it is possible that a Judge could find you in “contempt of court” and in extreme cases, decide that you should be in contempt.

  2. Dress Appropriately. What you wear to Court will impact how a Judge sees you. If you are claiming that you do not have any money or resources, then you should not be wearing expensive jewelry or thousand-dollar suits. In contrast, if you are someone who does earn a good income, then going to Court in old pants and a ripped shirt, will make the Judge know that you are not telling the truth. Generally, you should wear “business casual” attire and not a lot of jewelry.

  3. Don’t Interrupt the Judge. When the Judge speaks, you listen. If the Judge asks you a question, then answer the question. Sounds simple enough, but, I’ve seen clients who talk over a Judge and I’ve seen clients who don’t directly answer the Judge’s question. If a Judge asks you a question, typically keep your answers short and to the point. Your attorney can always expand upon your answer.

  4. Don’t Waste the Judge’s Time. A Judge will have hundreds of cases. Do not bring frivolous issues or simple disputes to the courtroom. A Judge does not want to be bothered with something that should be worked out between divorcing couples. A good example is what to do with your personal property (furniture, TVs, computers, clothing). Most Judges do not want to be bothered with dividing up personal property. They expect the clients to be able to divide the personal property in a fairly equal manner. Of course, there are exceptions to this rule. If you have expensive jewelry, art collections, sports collections or other things of value, a Judge may have to decide how those items are divided up.

  5. Be Prepared, but, Don’t Be Like a Robot: If you are going to trial, then you need to be prepared. Your attorney will review your case with you. However, when you are a witness, you do not want to look like you have memorized your answers or look like a robot when answering your questions. Most clients are very nervous when they are on the witness stand. That is to be expected, and a Judge will understand that you are nervous. In contrast, if you look like you have memorized your answers, a Judge may hold that against you.

  6. Do Not Lie. This may be the most important rule. If a Judge catches you lying or believes that you are either lying or not telling the whole truth, this could ruin your whole case. It is much better, to tell the truth — no matter, how damaging it might be — then to lie.

  7. A Judge will be one of the most important parts of your divorce matter. Each Judge handles their divorce cases differently. David Badanes and the Badanes Law Office, P.C. has extensive experience with all the Suffolk County and Nassau County Judges. Mr. Badanes is well respected and knows that the Judges what an attorney who is honest and does not waste their time. If you are contemplating a divorce or just served divorce papers call David Badanes at 631-239-1702.