Question #109

The nature of the account is not controlling. It is the source of the funds in the account that is important. If either party earned the funds during the marriage, the funds would be considered marital property, and generally divided 50-50.

In the case that you presented, the funds were not earned by either party but were a gift from your spouse’s parents, and a gift such as that, if held in an individual’s account, is not considered marital property; therefore, you have no interest in the amount which her parents have contributed.

Leonard M. Weiner, Esq. /Divorce Solutions

Question #123

Marital property is defined as all property acquired during the course of the marriage by either party, no matter in whose name the property is held, other than property acquired by gift, inheritance or bequest.

Your 401K is such property regardless of whether your husband refused to have one of his own;

It appears to be marital property in which your husband will have a claim. Shifting the money to another account or contributing future income or assets to a different account will not help. He will have an interest in any such account. The only resolution is to enter into a postnuptial agreement or perhaps separation agreement, depending on your relationship, in which you spell out precisely what is marital and what is to be separate property. A competent, experienced attorney must do this to be sure that it will have legal authority.

If you’re living in the New York City metropolitan area, I suggest you call me at 212-370-1660 to discuss the matter at greater length.

Leonard M. Weiner, Esq./Divorce Solutions

Question #125

Until she enters into a legal Separation Agreement, although she has been separated for 22 years, she is still considered married and has an interest in her spouse’s pensions. Indeed, for the period during which they were living together, approximately 24 years, she should be entitled to 50 percent of the pension earned during that period.

If she is in the New York City metropolitan area, I strongly suggest that she call me at 212-370-1660 to discuss mediating the separation and getting a divorce and legalizing her informal separation.

Leonard M. Weiner, Esq./Divorce Solutions

Question #135

Under the law, you would have an interest in your husband’s 401(k) for that portion of his retirement account that was earned during your marriage. Once you entered into a separation agreement, however, you may have waived your right to any interest in that retirement account. Furthermore, once the summons and complaint were filed with the county clerk, your rights to claim any income earned or assets acquired after that time by the other party terminates.

To accurately answer your question, therefore, it is important to review your separation agreement and your judgment of divorce to see if you have some claim to that portion of your husband’s retirement account, which he earned during your marriage. You do not have any claim, however, to any part of that retirement account that was earned after the termination of your marriage.

Leonard M. Weiner, Esq./Divorce Solutions

Question #138

The answer to your question should be found in the Separation Agreement, which your father and his ex-wife executed before their divorce. I would have to examine the Separation Agreement to tell you with any type of certainty that she no longer has any benefit in the proceeds of his retirement account.

You, as the executor of the estate, should not do anything with the funds until you have a determination regarding this potential claim.

Please call me at 212-370-1660 to discuss the matter at greater length. This seems to be a relatively simple matter which can be resolved quickly and with a minimum legal cost.

Leonard M. Weiner, Esq./Divorce Solutions

Question #164

You would have a claim to approximately half of the retirement funds, pension, etc. which were contributed during the six years of your marriage, while the former spouse would have a claim to approximately half of the retirement funds, pension, etc. that were earned during the time she was married to him.

The comparative ages of the parties are not relevant.

If you are living in the NYC metro area, please call me at 212-370-1660 to arrange for a meeting to discuss mediating your divorce. I can help!

Leonard M. Weiner, Esq./ Divorce Solutions

Question #193

In the event of a divorce, you would be entitled to approximately one half of your spouse’s pension, which was earned during the marriage. If the $13,000 used to buy back the ten years at Buffalo State was earned during your marriage, it is marital property, and the additional ten years of retirement credit would also be considered a product of the marital property and as such marital property as well. So you should be entitled to 1/2 of the entire 30-year retirement pension.

If you are living in the New York City metropolitan area, please call me at 212-370-1660 to discuss the issue in more detail and to arrange for a meeting to discuss any plans for separation or divorce.

Leonard M. Weiner, Esq./Divorce Solutions

Question #195

Until you enter into a legal separation and divorce, you are still considered legally married, and any money earned by either of you, including your retirement accounts, are considered marital property and generally will be divided equally. Therefore, if you decide to divorce now, any additional monies which he or you will earn after the summons and complaint are filed, and the separation agreement is executed, or a judgment of divorce is filed in the county clerk’s office, will be considered separate property. You will have no claim to those monies earned by him after such a date.
If you agree to enter into an uncontested divorce, you must provide for some spousal support for yourself, including the continued mortgage subsidy that you are presently receiving and some additional spousal support. There are several other issues that you must be concerned with, which should be incorporated in the separation agreement before agreeing to the divorce.

Please call me at 212-370-1660 to arrange for an appointment with you and your husband to discuss mediating your divorce. It will be less expensive, less emotionally draining, and much faster than litigating it in court.

Leonard M. Weiner, Esq./Divorce Solution

Question #212

Since you are in a marriage of long duration and have not worked much, you should receive spousal support from your husband. You must have an experienced matrimonial attorney prepare the documentation and help you work out the details, especially the division of the social security benefits.

If you are located in the NYC metro area, please call me at 212-370-1660 to discuss the matter at greater length.

Leonard Weiner, Esq./Divorce Solutions

Question #225

In general, under NY’s Equitable Distribution Law, a spouse is entitled to approximately
50% of all marital property, regardless of whose name the property is held.

That portion of your 401K that was earned during the marriage is marital property.