Question #7: Great website. My husband & I have been residents of NYS all our lives and were married here in 1988. It has been a very abusive relationship and he abuses drugs and alcohol. I filed for divorce in 2001 but backed out of it because of my fear of this man. He was arrested for domestic violence (a few months before I filed for divorce) and issued an order of protection but he was never ordered out of the house. The night they arrested him they told me that for my safety I should leave. Because of this he was allowed to stay in the house and the 3 children & I were forced to leave for our safety. My lawyer said that he could stay in the house but I had to file a petition in the court for exclusive residency if I wanted to get back in. This is totally messed up. Then he burned up all my clothes and other possessions that I was not able to retrieve because of 1. him changing the locks and 2. my fear of going back and getting hurt if I did break a window to get in, and I was told that he could do that because they were a “marital asset”. The same when he broke into my business and vandalized it, marital asset and anyone can damage their assets if they want to. Then he put advertisements on the radio using our last name instead of my actual business name saying that “John Smith is no longer in business” and saying that he no longer sold the product that I do. (Even though he was never part of my business, but it is a marital asset, purchased 1993) The radio station just said that he paid for the ad and he could run it because he did not use my business name so it wasn’t false advertising and the ad could mean that he himself was no longer selling the product. Then they suggested that I purchase advertising with them to clear up the situation. (How sick on their part). The list goes on & on and I ran out of money to fight him. Everything he did he got away with and I became an emotional basket case and moved back in fearing that I would eventually get too depressed to take care of the children. I moved back in to get him to stop. I just wanted it to end. Well, 3 years later I can’t take it anymore. My questions are, how come he was not asked to leave when he was arrested & issued an order of protection, how could he advertise like that? Also, for almost 5 months now I have been “living” in a separate part of the house and have not had sexual relations with him. If we were to get a separation agreement would I still be able to live in this house? Would this fulfill the separation agreement because I am not having sex with him? I cannot afford to leave and pay for 2 places. I am on the mortgage along with him and have pristine credit and if I leave he will not pay the mortgage (why should he, his credit is shot). Can he get me for abandonment because I am not involved sexually with him and use this for grounds for divorce if we are in the same house? (Please tell me he can). Thank you

From the information that you provided above, you should have been able to get an order of protection which provided that your husband not you and the child leave the family residence. I don’t understand why your attorney was unable to help you with this matter. It is even more difficult to understand how someone who has suffered both physical and mental abuse would return to the home and subject herself once again to this same abuse.

In any case, the advice you have been given regarding marital property and the right of your husband to destroy your share of it is totally incorrect. As long as you are married the property which is in your name belongs to you , not him. Such property,(if acquired during the marriage) becomes “marital property” only upon suing for divorce. And even when it’s marital property, you still have an approximately 50 percent interest in such property, and he cannot take or destroy it ,or he will have to repay you for the damage caused to your percentage of the property.

With regard to the question about constructive abandonment, constructive abandonment requires that the defendant refuse to have sexual relations with the other party and that this has continued for a period of one year. It does not matter whether you are living in the same house are not.

If you are living in the New York City metropolitan area, please call at 212-370-1660 to discuss the matter in greater length and to arrange for an appointment to see if we can mediate your divorce.

Leonard M. Weiner, Esq./Divorce Solutions

Question #6: If my husband and I got a legal separation could we still live in the same house and lead different lives? Or could we buy a duplex and each live on a side and still have the legal separation be affective? Could we have joint custody of the kids in doing so?

The answer to all your questions is yes! However, you must carefully address each of these issues in your Separation Agreement which should be drafted by an experienced matrimonial attorney-mediator.
If you are living in the NYC metropolitan area, please call me at 212-370-1660 to discuss the matter further.
Leonard M. Weiner, Esq. /Divorce Solutions

Question #5: My wife abandoned me two years ago (after 8 years of marriage). On 8/9/95 she calls me at work saying she wants to take off for a month in Florida to think, but she wants a divorce and we’ll talk when she returns. After a month I tried to get in contact with her through her family but she wouldn’t return any of my messages. (I later found out that she was really in Puerto Rico with a male companion. I haven’t heard from her since until 10/8/97 when someone knocked on my door at 10:30pm to give me a Summons (with Notice). It seems that the summons is an action for divorce on the grounds: DRL*140 (1)?? She seeks an equitable distribution of marital property ?? What does DRL*140 (1) mean???? and do you have any advice?? I never went through anything like this. And I’m desparate. I have twenty days to reply to the summons. Please e-mail me as soon as you can.

DRL Section 140 [there is no Section 140(1)] deals with the annulment of marriages based on six specific grounds:1) former husband or wife living, 2) party under age of consent; 3) party mentally retarded person or mentally ill; 4) physical incapacity; 5) consent by force, duress or fraud; 6) incurable mental illness for five years. This is not the section one would reference to seek a divorce and equitable distribution.

In order to answer your questions I need to know more specific facts about your case. Are you a resident of New York State? Were you living in New York prior to the separation? Do you have any minor children? Where does your spouse live presently?

New York State requires the equitable distribution of marital assets. This means that generally all assets acquired during the course of the marriage regardless of whose name the assets are held in are marital property and will generally be divided equally, or at least equitably, between the two parties. Do you own any property including real estate, securities, bank accounts, etc. which would fall into this category?

You must respond to the Complaint received within the twenty day period as directed. I strongly suggest that you call my office at 212-370-1660 to arrange to prepare an Answer to the Complaint.

I also strongly urge you to contact your spouse and try to convince her to mediate rather than litigate the issues involved in the separation and divorce.

Leonard M. Weiner, Esq./Divorce Solutions

Question #4: I am about to start going through a divorce and need some answers to questions. I need to know more about no-fault divorces and how they work. I also need to know what my rights are as the father of a 1yr old child and how I can keep custody of him because his mother chooses to run around at all hours of the night and run with drug using friends. She also participates in the use of drugs. I have many other questions that would fill up about three pages, but these are two of the MAJOR issues that I need answers to. Thanks.

In order to properly answer your question I must know in which state you are presently living, where your spouse is living, if there are any children and where they are presently living, are there any marital assets (for a definition of marital assets please see some previous Q & A), where the marriage took place and where you lived as a married couple.
Not all jurisdictions have no fault provisions. New York State requires one to prove fault in order to get a divorce, although if the parties are cooperative the courts have liberally interpreted the statute to allow the couple to divorce.

The question of custody of your one year old child will depend on the court’s opinion whether your wife is capable of providing the best setting for your child to grow up in and certainly, if there are drugs involved, the court will not look favorably at such a situation and will most likely give custody to you, if you can show that you are able to provide a more favorable financial and social setting for the child to grow up in.

Leonard M. Weiner, Esq./Divorce Solutions

Question #3: My husband and I were married 5 years ago in Florida and still reside here. We have a 3 year old daughter. I asked for a divorce and my husband refuses to cooperate. He claims he can make me happy and blames all of our relational problems on me. He says he will fight for custody of our daughter and the fact that I admitted to kissing another man is enough to take her away from me if I pursue a divorce. He also wants me to leave the house without her and he refuses to leave. Also, he recently talked me into a consolidation loan against our home to pay off our credit cards and lease a very expensive vehicle which we both signed on. Without his income I wouldn’t be able to live alone in the house or keep the car. If I filed bankruptcy would I still be liable for the house and car if I moved out? Is kissing someone else considered adultery and cause me to lose my daughter? I’m a wonderful mother to her, my work history is far better then his, I earn more money then he does and I take care of most of her needs. Would a mediator be helpful in my case?

I believe that consultation with an experienced family counselor could assist you and your spouse in resolving some of your marital problems. Every effort should be made to keep the marriage in tact for the sake of your daughter. If, however, the marriage is untenable, you should seek out an experienced attorney mediator specially trained in divorce mediation.
Bankruptcy may provide you relief from the creditors which you have, but I am not convinced that your financial situation will be improved by declaring bankruptcy.

If kissing a member of the opposite sex were deemed adultery by the laws of your state, the jails would be overflowing with offenders. It may or may not be proper conduct for a married woman to engage in, depending on the society she lives in, but it is not considered adultery in any state that I am aware of.

Leonard M. Weiner, Esq./Divorce Solutions

Question #2: My wife refuses to proceed with our separation until her name is removed from the credit cards that I will pay (We have four –I’ll pay two, and she’ll pay two) This seems to be taking a long time, how can this be sped up? I also have the feeling that my wife is stone-walling. . . I have decided that I would prefer to try and get a divorce right away, how hard is it to file for divorce in NY using “cruelty” as grounds? Are my only choices cruelty, abandonment, or filing a separation and waiting a year?

With regard to the question of credit card accounts, I suggest that you both pay off all the outstanding debt on all the cards and terminate them completely. This way you will be sure that no debt exist on them and then you can open a new account just on your name.
With regard to the question of grounds for divorce, New York requires specific grounds (please see earlier questions and answers on my web site which deal with the detailed grounds for divorce). Among them are the ones you mentioned. However, if your wife is intent on fighting the divorce, you will have to prove the grounds upon which you are asking the court to grant you your divorce and this good prove difficult and expensive.
You are much better off trying to get your spouse to mediate this divorce which will save you time, money, and much less emotional strain.
If you are located in the New York City metropolitan area, I suggest you give me a call at 212-370-1660.

Leonard M. Weiner, Esq./Divorce Solutions

Question #1: I am living in New York City (Brooklyn). I need to know my rights for a legal separation. I would need to move out of the home I am currently sharing with my husband and 2 daughters 2 and 7 yrs. I would like to take my daughters with me and the furniture I acquired before I was married or had children. I am also contemplating relocating to another State with the kids but I do not know the laws of separation in New York. In addition, I am concerned that due to my earnings being more than my spouse’s I will be responsible to pay support to my husband. If I later file for divorce will he be entitled to any assets I acquire after the separation (i.e. 401k, savings etc.)?

The courts in New York have become more receptive to the idea of the custodial parent moving out of state, but each case is reviewed individually by the court on its merits, with the prime consideration being the well being and benefit to the children. Generally, the courts are reluctant to allow one parent to take the children away and thus interfere with the ability of the remaining parent to visit and develop a strong relationship with the children. You cannot simply take the children and run to a different state without first getting court approval.
With regard to your earnings greater than your spouse’s, it will all depend on how much of a gap between the two incomes there is, and your spouse’s ability to live on the income he makes by himself, and the economic level you both were accustomed to living at when you were married.

Once you file the Separation Agreement, all the earnings of each party will belong to him/her individually from the date agreed upon, if you so provide in the Separation Agreement.

if you wish to discuss this matter at greater length, and are interested in considering mediation of these outstanding issues, please call me at 212-370- 1660.

Good luck!

Leonard M. Weiner, Esq./Divorce Solutions