If We Are Separated Or Divorced, Can I Open My Spouse’s Mail?

If you open mail addressed only to your spouse or to your ex-spouse, your actions could have serious consequences.  Under the law, tampering with, hiding or opening mail addressed to someone else, even if to your spouse or ex-spouse, is a Federal crime.  

There are two exceptions.  You may open mail addressed to your spouse or ex-spouse when: 

  • You are given explicit authority by your spouse or ex-spouse; or
  • The letter or mail is also addressed to you.

Even if you do not face criminal charges or are not prosecuted, your spouse or ex-spouse could still start a civil suit which could lead to monetary damages.

In addition to being a crime or opening yourself to a civil suit, if a court finds out that you have been opening the mail of your spouse or ex-spouse, this could have serious consequences on the divorce.

Therefore, if you are in the process of getting a divorce, or you are already divorced, you should never open your spouse’s or your ex-spouse’s mail.

If you are seeking a divorce, or have been served with divorce papers, please contact David Badanes.  David Badanes has offices in Suffolk County and Nassau County. To make an appointment or to learn more, 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

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

What Happens if I Miss Court?

If you are scheduled to go to Court, you should attend. However, if you can’t attend or just “miss” your court date, then this is what you should do.
If you have an attorney, then the first thing you should do is contact your attorney and tell your attorney that you cannot attend court. Your attorney will advise you on what to do.

  1. If you do not have an attorney, then as soon as possible, you need to contact the court and explain why you could not attend. This should typically be done by a letter to the Judge. In your explanation, you should explain that you are sorry that you missed court. Then you should explain why you did not attend.
  2. If you do not attend Court, then you could face the following penalties: (1) the Judge could issue a warrant for your arrest; (2) the Judge could hold you in contempt; and/or (3) the Judge could order you to pay your adversary’s legal fees to attend court (while you were not there).

You should do everything possible to make sure you attend Court. As stated above, if you miss Court, then you could face serious consequences. Furthermore, your absence will not bode well as to how the Judge handles your case.

David Badanes, Esq. and the Badanes Law Office, P.C. represents clients in their divorce and family court matters. To make an appointment or to learn more then 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.

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

How To Protect Your Credit During A Divorce And After A Divorce

Going through a divorce is difficult. One of the many areas that a divorce can affect is your credit. The following are some ways you can protect your credit during a divorce and after your divorce.

• Credit Cards. If you and your spouse have joint credit cards, it is extremely important to make sure that the use of the credit card and the payment of the credit card is resolved in the divorce.

For your separate credit cards, then it is very important to pay more than the minimum amount due. Even if you only pay a few more dollars than the minimum this will help in avoiding the large credit card interest rates.

As for which credit cards to pay off, there are a few schools of thought. Typically, most experts advise you to pay off the credit card with the highest rate of interest. Generally, that is good advice. However, some people find it easier to pay off the credit card with the lowest outstanding balance. By paying off the entire balance on a credit card with the lowest balance, it is easy to see that you are taking care of one credit card at a time. Of course, it is important, that while you are paying off that credit card, that you cannot use that credit card.

After the divorce is final (or if permitted by the Court, then during the divorce), you should remove your spouse (or ex-spouse) as an authorized user from any of your credit cards. Similarly, you should remove yourself as an authorized user from your spouse’s (or ex-spouse) credit card accounts. This is because the credit card companies will include your spouse’s credit history on any account where you are an authorized user.

• Reduce expenses. In almost all situations, it is possible to reduce some non-essential expenses. By using those savings to pay off higher interest credit cards, you will be saving significant amount of money and helping your credit.

• Pay all your bills on-time. In addition to your credit card bills, it is important to pay all of your other bills on-time. This includes: mortgage, rent, student loans, car loans, bank loans, utilities.

These are just a few areas that will help you protect your credit, both during and after a divorce. David Badanes, Esq. and the Badanes Law Office, P.C., give real world advice and practical advice to their clients who are going through a divorce on Long Island, NY.

If you are thinking of getting divorced, please contact David Badanes and the Badanes Law Office, P.C. Call 631-239-1702 or email at david@dbnylaw.com. The Badanes Law Office has offices in Northport and Uniondale.

Get important legal updates, tips and divorce articles by liking Badanes Law Office Facebook page here.

Can A Spouse Stay On A Mortgage After The Divorce?

If you and your spouse are both on a mortgage, in most divorces, either the property will be sold or one party will buy-out the other parties’ interest in the property. In those instances, either both spouses will be removed from the mortgage or only one spouse will remain on the mortgage.

However, there are some cases, where both parties want to keep the property and do not want to change the mortgage. Can both spouses stay on a mortgage after the divorce? Can one spouse stay on a mortgage after the divorce? The short answer is “yes”, it is possible that either one or both spouses can stay on a mortgage after the divorce. However, in order for that to happen, you will need to do the following.

1. If the divorce is settled, then in the settlement agreement, it must be very clear that one or both parties will remain on the mortgage. The agreement will also have to specify what happens if the mortgage is not paid. It is very important to place safeguards in the agreement, so that if the mortgage is not paid, on time, that either the other party can pay the mortgage, or the property will be sold.

The agreement should also state what happens when the property does get sold or what happens when one party no longer wants to be on the mortgage.

The bottom line is that the agreement has to think of all the things that can go wrong (i.e. the mortgage not getting paid) and also has to deal with situations where even if the mortgage is getting paid, on time, how long that will be allowed to happen.

2. If the divorce goes to trial, most likely a Judge would not allow both parties to remain on the mortgage (except, perhaps for a very short time). Usually, a Judge would order the property to be sold. If only party was on the mortgage, then a Judge may allow that party to continue to remain on the mortgage, but, the Judge will put strict limits on how long and what happens if the mortgage is not paid.

There are many contingencies and scenarios that have to be considered with a mortgage. David Badanes, Esq. and the Badanes Law Office, P.C. have drafted numerous divorce agreements that arrange for how a mortgage is handled after a divorce.

If you are thinking of getting divorced, call David Badanes and the Badanes Law Office today at 631-239-1702 or email at david@dbnylaw.com. We have offices in Northport, Suffolk County and in Uniondale, Nassau County.

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Are Separate Bank Accounts Considered Marital Property?

In general terms, all assets acquired after marriage are considered marital property. Also, generally, it does not matter if one person is listed as the owner of the property, it is still considered marital property.

To determine if a separate bank account is considered marital property, ask yourself the following questions:

1. Was the bank account opened after marriage? If yes, then it almost always will be considered marital property. The exceptions would be if the monies placed in the bank account came solely from an inheritance, gift or a personal injury award. If all the monies placed in the bank account did come from an inheritance, gift or personal injury award, then that money is considered separate property and therefore the bank account and the money in it is also your separate property.

If the bank account was opened before the marriage, then go to question number 2.

2. If after the marriage: Did you place any joint monies, your wages or other marital funds into the bank account? If after the marriage, you put your pay check, or other marital funds into this bank account, then at the very least that money would be considered marital property. Furthermore, depending on the circumstances, all of the money in the bank account could be considered marital property.

If you answered no to this question, then most likely all the monies in the separate bank account will be considered your separate property. This is because you did not place any marital funds into the bank account.

If you have questions about what is marital property or separate property, David Badanes, Esq. and the Badanes Law Office, P.C. can answer your questions and help you. If you are considering getting a divorce or you have been served with divorce papers, then call David Badanes, Esq. at 631-239-1702 or email at david@dbnylaw.com. The Badanes Law Office has offices in Northport and Uniondale on Long Island, NY.

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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.

In a Divorce, Should You File Your Taxes Jointly?

If you are in the middle of a divorce and it is not finalized by December 31st, then you can still file a joint tax return. You are still considered “married” by the IRS if your Judgment of Divorce is not signed by December 31st. So, in some situations, all your divorce papers could be filed, prior to December 31st, but, if the Court (Judge) has not signed them, by the end of the year, you are still legally married.

In most situations, by filing a joint tax return, you will pay less in taxes than if you filed a separate tax return. Yet, there are some reasons why you might want to file a separate tax return, even if you are still legally married. As one example, if you believe your spouse is committing tax fraud, then it probably would be wise to file a separate tax return.

You always have the option to file a separate tax return during the period that you are still married. However, as stated above, you most likely will have to pay more in taxes compared to if you filed a joint tax return. This is because some tax deductions, credits, and other benefits are not available or are limited when you file separately.

So, in general terms, most likely you should file a joint tax return until your divorce is finalized. However, you should always consult with an accountant or tax attorney, before deciding whether or not to file a joint tax return or a separate tax return.

As with all areas of divorce, David Badanes explains the different tax consequences that occur in a divorce. If you are thinking of getting divorced, call David Badanes and the Badanes Law Office today at 631-239-1702 or contact us online.