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 #74:
I live in Upstate NY. I am getting a divorce after 5 yrs. of marriage. We have no children together. Is my wife entitled to 1/2 of the house that we live in even though I owned it before we were married and her name is not on the mortgage ? We have agreed to some terms to legally separate but she will not sign a paper written by my lawyer unless she can be present when I meet with them. My lawyer says that it is a conflict of interest to represent both parties even if we agree on terms.
Answer:
If you owned the property prior to the marriage and kept it in your name only the property is separate property, not marital property and she is not entitled to one half. If you used marital funds (i.e. funds earned during the course of the marriage) to pay the mortgage and upkeep, she may have a monetary claim to one half of suchpayments, but she does not have an equity interest in the property. Your wife is right. She should be represented by counsel before she agrees to anything. It is also in your best interest that she have counsel so that she cannot come back later to the court and claim she was unrepresented any did not know what she was doing. I strongly recommend you mediate rather than litigate your divorce.
Leonard M. Weiner, Esq./Divorce Solutions
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