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 #26:
My wife's father gave her some shares of stock. Before we got married, we put the stock in both our names. I had some money and added it to that account. Now, my wife tells me that in the case of a divorce, I am not entitled to any of her stock because it was a gift from her father. I know it is not an inheritance because her father is not dead! I am in New Mexico. We used that account to live on in times of need. Yet, we never sold one share of the stock her dad had given her. Now that the money I put into that account is extinguished, can my wife still claim that in the case of a divorce that I have no right to the money even though the account is in both our names. The account says She "or" Me (the "or" clause and not the "and" clause). Also, once we started having problems she started writing checks fast and furiously. If we ever do settle, am I entitled to the money she so furiously spent, or am I just entitled to just what is left in the account (if anything is left)?
Answer:
You do not provide me with enough information to determine which state will have jurisdiction over your divorce. In general, most states are either community property states or equitable distribution states which in most cases means that the courts will divide the marital property approximately equally between the parties no matter in whose name the property is being held.
"Marital property" is all property acquired during the course of the marriage other than by gift ,inheritance, or bequeath.

In the case you describe above, the securities were for the most part acquired prior to the marriage by your spouse as a gift from her father. However, since she co-mingled the individual assets with you by adding your name to the account and by your contributing additional capital to the joint account, it would appear that you have a legitimate claim to half of the account. Regarding your spouse's attempt to spend all of the money in the account, in the event of divorce, upon substantiation of her intent to deplete the account in order to prevent you from recovering your money, the courts should provide you with compensation when it determines the specific distribution to be made to each party.

Leonard M. Weiner, Esq./ Divorce Solutions

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