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Question #16:
I am currently separated from my spouse and going through the divorce process. My husband is seeking $8,000 and wants me to refinance our home. In addition, my husband does not want me to make claim to his 401k. My question is do I have to refinance our home in my name and if so what is the process. Sometimes, I feel that my attorney is not working in my better interest. My spouse and I have two children, and I want to retain full custody instead of joint custody. Do I need to establish that my spouse is unfit as parental guidance?

Need help!

You did not indicate which state has jurisdiction over your divorce proceeding or whether you are presently involve in litigation. From your reference to your attorney, I infer that you have hired an attorney and are in the process of litigation.

I suggest that you discuss the issues with your attorney; if indeed you do not think he/she is properly representing your interests, it is time to seek a new attorney.

Regarding your question about refinance, you do not have to do anything that you are not required to do under a court order. Is the house under your name only? Is your spouse assigning his rights to you in the house in lieu of the $8000? If the deal is such an exchange, you must first transfer the property to your name only and then apply to the bank to refinance. As long as the property remains on both names, the bank will most likely insist that both parties be obligated under the refinance agreement.

Regarding the 401k again you are not required to do anything that is not in the court order. If part of your deal for exclusive ownership of the house is that you give up your right to his pension, then that is the deal that you agreed to. Otherwise, you should have a claim to a portion of his pension which was earned during the course of your marriage.

Regarding the child custody question, who decided that the custody should be joint? Is it part of a settlement or court order already executed? If you now wish to change that order or settlement, you will have to provide proof that there has been a breach of the agreement, or that the welfare of the child is in jeopardy. I do not have enough information to make any further comments.

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

Good luck!

Leonard M. Weiner, Esq./Divorce Solutions

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