You did not indicate what state you live in, so it is difficult to give you a definitive answer. In New York, for instance, which is an “equitable distribution” state, each spouse is entitled to approximately one half of all marital property, which is defined as property of any kind acquired during the course of the marriage by either spouse other than property acquired by gift or inheritance.
If the house and retirement funds meet the definition of marital property,
she would be entitled to half, even though she never worked.
Leonard M. Weiner, Esq. Divorce Solutions
No, New York is not a “community property” state. However, New York has what is called “Equitable Distribution,” which is similar to community property. It provides the judge hearing the case with somewhat more discretion to allow one party to receive more or less than the other party, depending on the circumstances.
If you are both living in New York for one year, NY will have jurisdiction over your divorce, regardless of where you were married.
Equitable distribution means that generally, all property earned or acquired during the marriage other than by gift or inheritance is considered marital property and will be generally divided in half, regardless of in whose name the property is held.
You cannot, in anticipation of filing for divorce, just sell off the property first and take the money without dividing the proceeds equally.
One of the many benefits of using our mediation services is that you will not have to make court appearances or spend countless hours, time, and money on attorneys waiting for your ten minutes before the judge. All of the decisions on how to divide your assets and what support and other provisions will be made in the quiet of my office and will be up to you and your wife instead of the judge.
The cost will depend on how long it takes us to go through all of the issues (e.g., spousal support, division of marital assets, payment of outstanding debts, etc.), draft a Separation Agreement, and prepare and file the divorce papers.
If you are living in the NYC metro area, please call me at 212-370-1660 to arrange for a meeting to discuss the matter in greater length.
Leonard M. Weiner, Esq./Divorce Solutions
First, let me point out that the division of marital property under the Community Property rules of California and the division of marital property under the Equitable Distribution rules of New York, although not identical, are very similar, with New York giving the judge somewhat more leeway in determining if one party should get more than another.
Concerning a direct answer, your question, if the couple is residing in New York State, the court in the county in which the couple resides in New York State will have jurisdiction, and the marital laws of the State of New York should govern.
If the couple is living in a New York City metropolitan area, I strongly suggest that they contact me at 212-370-1660 to discuss mediating their divorce.
By meditating, the parties themselves can determine how to divide their property. It will be quicker, less expensive, and less traumatic for the entire family. I can help. Have them call me.
Leonard M. Weiner, Esq. /Divorce Solutions
Because you are living in Kansas since 2010, you would have to file in Kansas, not NY.
Kansas is an Equitable Distribution state meaning that generally any property (including the house and 401K) acquired during the marriage with funds earned during the marriage (excludes funds received as an inheritance or gift from a parent) are considered Marital Property, regardless of in whose name the property is held and will be divided approximately 50 -50, with the court retaining discretion to make a different division based on extenuating circumstances.
Leonard Weiner, Esq./Divorce Solutions