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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Can You Date Before The Divorce is Final?

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

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

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

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

If you need legal advice and are seeking an attorney, David Badanes and the Badanes Law Office, P.C. David Badanes and the Badanes Law Office’s phone number is 631-239-1702, email at david@dbnylaw.com or visit us on Facebook to get important legal news, tips and articles: www.facebook.com/BadanesLawOffice.

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

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

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

If you are seeking a divorce or need to hire an attorney, please contact David Badanes and the Badanes Law Office, P.C. David Badanes and the Badanes Law Office’s phone number is 631-239-1702, email at david@dbnylaw.com or visit us on Facebook to get important legal news, tips and articles: www.facebook.com/BadanesLawOffice.

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

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

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

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

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

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

In a divorce, there are many questions about debts and assets that will need to be answered. David Badanes, Esq. and the Badanes Law Office, P.C. can answer those questions for you. If you are seeking an attorney to represent you in your divorce, then contact David Badanes and the Badanes Law Office. If you live in Suffolk County or Nassau County, contact David Badanes and the Badanes Law Office, P.C. today at 631-239-1702, email at david@dbnylaw.com or visit us on Facebook to get important legal news, tips and articles: www.facebook.com/BadanesLawOffice.

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

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

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

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

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

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.