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.

What To Do When Divorcing in the New Year

The start of a New Year is typically when many couples will file for divorce. If you are going to start the process of a divorce or if you have just received divorce papers, here are a few “To-Dos” to make sure you are properly prepared.

  1. Create a Budget: Although a divorce may be better for your mental health and also make you happier, in almost every divorce, it costs more to live separately than to live together. To help you prepare, you should create a budget. There are many budget worksheets that you can obtain for free. Having a budget will help you realize how much you will need and perhaps what expenses you can either reduce or eliminate.
  2. Gather and Organize Important Documents: Start getting all your important financial documents, including your bank statements, tax returns, W2 statements, retirement statements and credit card statements. Your attorney will need these statements. Most attorneys will accept electronic (pdf) copies, so you probably do not have to print out your statements.
  3. Get Your Credit Report: A Credit Report will help you identify your credit history, loans, and credit cards. You may discover that your spouse has been using your credit cards or taking out loans in your names. You should be able to obtain your credit report for free as there are a few websites that offer this service.
  4. Start Researching Attorneys Now: If you don’t have an attorney or don’t know one, you should start researching divorce attorneys now. Since so many couples choose to get a divorce in January, many divorce attorneys are very busy in January. Do your research as soon as possible and be flexible when you can meet your attorney.
  5. Find a Therapist/Counselor: Too many people make the mistake of using their divorce attorney as a therapist or counselor. A divorce attorney is not trained to be a therapist or counselor. In addition, it will cost you a lot less to see a therapist than to call your attorney for therapy.
  6. Make a List of Your Goals: Are you seeking sole custody? Joint custody? Are you looking to sell your house? Move out of your house? Do you want to retain your retirement assets? These are just a few of the goals that you may want and that your attorney will need to know.

If you will be seeking a divorce in the New Year or you have just been served with Divorce Papers (Summons or Complaint), then contact David Badanes at 631-239-1702.

Preparing to File for Divorce in the New Year

The end of the year is a common time for unhappy couples to start thinking about divorce. People in troubled marriages may think of the new year as having a fresh start. Although you are looking to file for divorce after January, there are some things you can do to prepare for divorce that will make the process smoother.

  • Know your Debts: Make a list of all the debts that you have. This would include credit cards, mortgages, car loans, student loans, personal loans and any other debts you might have. Make sure you include both “your” debts, your “spouse’s” debts, and any joint debts.
  • Know Your Assets: Know your assets and make a list of the same. Most divorces will require you to fill out a document called the “Statement of Net Worth”. The Statement of Net Worth is similar to a budget statement. When considering your assets, make sure to include:
    1. Real Estate (both your primary home and any vacation homes)
    2. Cars
    3. Financial Accounts: i.e.: Checking, Savings, Money Market Accounts, CD’s.
    4. Stocks, Securities, Mutual Funds
    5. Pension and Retirement Accounts: i.e.: 401(k), IRA, Profit Sharing, etc.
    6. Life Insurance
    7. Business Interests
    8. Personal Property: i.e.: Art Work, Jewelry, valuable collections
  • When making your list of assets, try to determine their value and if you are claiming them as joint or separate property.
  • Gather and Organize Important Documents: Important documents include tax returns, W2 Statements, and Banking Statements.

David Badanes and the Badanes Law Office, P.C., have represented countless clients in their divorces. If you have questions regarding filing for divorce, contact David Badanes at 631-239-1702.

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

Why You Should File for Divorce BEFORE the New Year Starts

In December, for those persons considering to file for a divorce, many times they will wait until January to file. However, there may be a good reason why you should file before the New Year starts.

It is important to know, that you can file in December, and you do not have to serve your spouse in December. You can file in December and then wait until January to serve your spouse with the divorce papers. In this manner, you get the benefit of filing early, yet, you do not have to upset the holiday season.

What are the potential benefits of filing in December and before the New Year:

  1. Debts: For most debts, the amount of marital debt that is considered is determined as of the date of filing. The most common example is credit card debt. Credit card debt is a joint marital debt. So, no matter whose credit card it is, you most likely will owe 50% of the amount of credit card debt that existed as of the date of filing for a divorce. Once, you file for divorce, you most likely will not be responsible for any additional credit card debt that is incurred after the date of filing. Of course, there are many exceptions to this rule, but, you may benefit from filing in December to freeze the amount of credit card debt you are responsible for.
  2. Valuation of Assets: The valuation of assets almost always changes. Whether or not an asset has a higher or lower current value may benefit you. You may want to file early to “lock-in” the valuation of an asset.
  3. Changes in Income: When determining child support or spousal maintenance (alimony), the starting point is last year’s W2 or income. So, if you file in December, you first look at last year’s W2. If your income is less last year than this current year, you may benefit from filing in December.

David Badanes and the Badanes Law Office, P.C., have helped numerous clients in determining whether or not to file in December or in January. If you are contemplating getting a divorce or if you have been served divorce papers, contact David Badanes at 631-239-1702.

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

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.