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 #140:


I and my wife live in Virginia. We have two underage children and we own our own home. I have several questions. I want to pursue having a legal separation. My wife and I don't have any rancor toward one another so we want to do this as cheaply as possible, but we do want to ensure our individual interests and our children's interests are protected. I will be moving out of our joint home (as a residence), but we still want me to maintain joint ownership of the home (as property). Is this possible? We really don't want to sell our home, because we want my wife and the kids to continue to live there. Also, the home is my primary investment in my future and I don't want to give it up, and my wife is okay with this. Neither of us can afford to buy our share of the home from the other. Also, I am bisexual and will likely pursue an intimate relationship with a man after my wife and I legally separate. My wife understands and accepts this. But, if I did so, would I be violating a legal separation agreement? One of our goals for the legal separation is so that I can explore in this area of my life. If a legal separation prohibits sexual contact with another person (in my case, a male), what do I do? Finally, I am in the will of an elderly relative to receive a small inheritance. It seems greedy, but my wife has more resources than I do, and I would like to see that I receive the full small inheritance when that time comes. Would a legal separation ensure that it would come entirely to me, or would I still need to split the small inheritance with my wife? I want to do what's right, but given my financial circumstances, I'm not in a position to do more than what's right.


Answer:



Answer:


I believe your situation is ripe for mediation. You should engage in an experienced attorney-mediator who can draw up the Separation Agreement which should provide for retaining the home as "tenants in common" instead of "as husband and wife" but which will allow your wife and children to remain in the home, and for you to continue your ownership interest in it. Provision should be made in the Separation Agreement for the children to be the beneficiaries of you Will and to receive your interest in the home in the event that you die prior to their maturity.



The Separation Agreement should also provide that each may live separate and apart and conduct his/her life as if they were unmarried. This should help with regard to your sexual preference but does not deal with the statutory issues of sodomy.


With regard to the question of inheritance, inheritances are not considered "marital property" if they are kept separate and apart from the other marital property and maintained in the beneficiaries name only.


I would be happy to discuss with you both the drafting of the Separation Agreement, and to that end please give me a call at 212-370-1660.




Leonard M. Weiner, Esq./Divorce Solutions
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