Question #316: In May of 2009 I moved to NY from Kansas. In August of 2009 I married a NY resident. In August of 2010 I moved back to Kansas and we are still married. My name is not on the home deed or mortgage but after almost 6 years do I have any claim to the property or his 401K in the event of a divorce? Thank you.

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.

Good Luck,

Leonard Weiner, Esq./Divorce Solutions

Question #236:Generally speaking, if a couple who reside in New York state decide to divorce and jointly own property in California, does the California property fall under community property rules of California?

First, let me point out that the division of marital property under the Community Property rules of Californiaand 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.
With regard to 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 Statewill have jurisdiction, and the matrimonial 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 mediating, 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

Question #220:My wife and I are thinking of a mutual divorce after having lived separately for 2 years in NYC. We are both Asian Indians by origin and we were married in India in 1998. We own an apartment and we are both title holders. What’s the divorce process in NYC , how long would this roughly take if it is mutual consent, and how much would it roughly cost? Also, what exactly does equitable distribution mean ? If I sell the apt. before the divorce process starts, would the proceeds count in the equitable distribution? Can we mutually decide the distribution of assets without involving the law?

If you are both living in New York for 1 year, NYwill 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 supprt, divvision of marital assets,payment of outstanding debts, etc.), draft a Separation Agreeement, 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

Question #143:Is New York State a community-property state? Thank you.

No, New York is not a “community property” state. However, New York has what is called “Equitable Distribution” which is similar to community property but 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.

Question #92: My wife and I have been married for over 40 years. Last year, out of the blue, she first asked for a legal separation and soon after mentioned a divorce. I have no idea what may have precipitated this; I am guessing that an affair may have been involved based on her and the suspected party’s actions and comments. A comment like ” I didn’t think you would care” almost sounds like an admission, but she has steadfastly denied this. She has been reading Stephanie Marston’s book, “If Not Now, When?” which never leaves her side. (I question some of the advice given in this book.) She wants to sell our home and property and split all our retirement savings. My question is can she legally get a divorce and walk away with half of our retirement funds that we worked so hard to get? My wife never had an income producing job.

You did not indicate what state you live in so it is difficult for me 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, despite the fact that she never worked.

Leonard M. Weiner, Esq.Divorce Solutions