Primarily servicing the greater New York City metropolitan area



LEONARD M.WEINER, ESQ, Ph.D.
DIVORCE SOLUTIONS
206 East 38th Street
New York, N.Y. 10016
(212) 370-1660

FINANCIAL ISSUES - MARITAL PROPERTY V. SEPARATE PROPERTY

Question #7:
My husband and I live in NY, and have been married for 5 1/2 years. We married 2 years after I divorced my first husband. There is no abuse or adultery involved, we simply have no reason to stay married. We have nothing in common, nothing to talk about and have not had marital relations since Jan of 1998. We also occupy separate bedrooms. I want to institute a legal separation or divorce, but he simply doesn't want to discuss it and just ignores the entire situation. Our conversations are limited to "good morning" and "good night" most days. In NY do I have other than to move to another state for a year and file for a no fault divorce outside of NY jurisdiction? We have a mortgage together, if I choose to move can I be held liable for mortgage payments even if I don't want any part of the value of the house? I also have a large inheritance from my mom which is in trust until my 40th birthday, can this inheritance be protected? We also work for the same company, can he trash me in my workplace to my coworkers and managers at will? I have no desire to harm him in any way, I want nothing from him. I just feel as if I've been sentenced to live imprisonment, and I need to get out. The longer we are together, the more resentment I feel towards him and I want that to be over.
Answer:
New York requires "grounds" for divorce (see some previous answers in this column defining the "grounds" in New York State). One of those grounds, however, is "abandonment" which includes "constructive abandonment", which means the refusal of one spouse to have sexual relations with the other, although the other spouse has requested such relations. If this is applicable in your situation, you may have adequate grounds for divorce even in New York.

Secondly, you may be able to convince your husband that continuing the marriage is no longer possible, and both of you may enter into a Separation Agreement and resolve all outstanding matters (e.g. child custody, child support, spousal support, division of marital assets, etc.) through mediation.

If you are a co-signature on the mortgage, you will continue to be liable for its payment, unless the mortgage Company allows you to remove your name from such mortgage. You cannot simply walk away from this obligation, even if you give up your interest in the house.

Regarding your inheritance, if the inheritance is kept in a separate account, not co-mingled with marital assets, and is in your name only, it should not be considered a marital asset, and will not be subject to any claim by your husband.

If you are located in the New York City metropolitan area, please call me at 212-370-1660 to discuss the matter at greater length.

Leonard M. Weiner, Esq./Divorce Solutions

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