Question #253:Hi, I wanted to ask a question about my divorce. I was married to my ex-wife for 5 years 10 months. I know I have to give her a part of my pension, I’m a police officer for NYPD. How much would I have to give her and is it for the rest of my life.

If you are living in NYS, under the NY ‘s laws of Equitable Distribution, your wife would generally be entitled to approximately half of the value of the pension earned during your marriage.
Any part of the pension earned prior to your marriage or after your divorce, would be your separate property and not marital property.

Leonard M. Weiner, Esq./Divorce Solutions

Question #212:I’m writing to inquire about 2 things. First- my husband (of 20+ yrs) and i want to get an amicable and uncontesable divorce- and we are both residents of NY. My husband said that he will agree to any ” reasonable” request i ask… plus i want to leave the state of NY permanently. Hubbie is an officer in the FDNY and i have been unemployed for many years -being a homemaker and raising our daughter who is now a legal adult. However -I did work for 2 years (2001-2003) but had 3 heart attacks – now living with Congestive Heart Failure, ACS and COPD after stent implants and a triple bypass. We own our co-op outright. In addition to a fair financial amount i have discussed with him -plus a monthly allowance(which i am sure he will agree with)… what else should i consider … ie: his FDNY pension , any other pension plans he may have, medical & prescription plan (although i plan on moving immediately to another state after divorce),and will i still be eligible to collect on his social security when he and i are of age – even though he is 54 and i am almost 50(if i live long enough I am unable to collect SS disability as i did not pay into social security since 1992.)? This is not something that just came over us overnite- it has been in the making for the past 2 years-and although we live under the same roof- we sleep in separate rooms. *****Also- what would the legal fees for a situation such as this amount to in total for both parties- and do we each need a lawyer or can we just have one? Thank you for your time.

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 Weinmer, Esq./Divorce Solutions

Question #195:I am 59 years old and my husband and I have been unofficially separated for 20 years. We both retain ownership in our home on Long Island although I live there and pay all mortgage payments, bills etc. He was having an affair which broke up our marrage and he is still with that woman. I am also residing with someone. We have three grown children.I am earning approximately 55,000 a year and he is earning about 80,000. We file our taxes together. My 401 is vested at about 40,000 and his over 100,000. I have no other asset and he does have to help me financially as my mortgage payments are very high. I do not want to sell my home and he has said he would never ask for that. I am the recipient of his insurance policy and 401 upon his death. He is also mine. Right now he has met another woman of 42 years of age who is insisting he divorce. If we decide to do this, what are the repurcussions to me? Would I be entitled to any alimony, share in 401 etc. We are currently married for 40 years and if I have to I will contest this divorce. Please answer ASAP.

Until you actually enter into a legal separation and/or 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, in the event that you decide to divorce now, any additional monies which he or you will earn after the summons and complaint are filed , and/or the separation agreement is executed, or a judgment of divorce is filed in the county clerk’s office, will be considered separate property , and you will have no claim to those monies earned by him after such date.
In the event that 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 a number of other issues that you must be concerned with which should be incorporated in the separation agreement prior to 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 #193:My husband and I have been married for 10 years, he has been in the FDNY for 15 and worked for Buffalo State for 10 years with a break in service between the two. A few years ago a bill was pasted that he could by back the 10 years he worked for in Buffalo. So, he paid for those 10 years which was over 13,000 which was paid for out of his pension. Which mean at 20 years when he is able to retire from the FDNY he is really retiring at 30 years. So my question is how many years of his pension should I get?

In the event of a divorce, you would be entitled to approximately one half of your spouse’s pension which was earned during the course of the marriage. If the $13,000 used to buy back the 10 years at Buffalo State was earned during the course of your marriage, it is marital property and the additional 10 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 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 #164:My husband was married for 13 years in California and divorced for 5 years before we met. We have been married 6 years in New York. I would like a divorce now. His ex has not remarried. If I divorce him, which ex-wife has the right to his retirement funds, pension, etc. Also, would it make a difference if I stayed in the marriage longer? He is 59 years old, I am 42 his ex is 56.

You would have a claim to approximately half of the retirement funds, pension, etc which were contributed during the 6 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 is 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 #138:I’ll attempt to make a long story short. My father recently passed away and had worked for one company for many years. I was contacted by a representative from this company asking for his ex-wife’s address. During their divorce, she received a sizeable lump sum, and signed away any financial benefit after his death. 13 years later is she eligible to receive money from his pension? I’m the executor of the estate, and I would like to know the correct process for keeping this money away from her. I don’t even know what the total sum of the benefit comes to…they wouldn’t release the information. I don’t know her current address, no one from our family kept in touch with her after the divorce. This was his second wife, whom he didn’t want to notified he was ill or notified of the funeral. She was written out of all other life insurance and veteran’s benefits. I would rather the money go to charity if there is no option to place that money into the estate. Am I legally responsible to find her? Does she really receive a benefit even if she signed off in the divorce? The divorce occurred 1 year after he retired from the company. She took over 70,000 from a retired man in his 60’s. If she is eligible for money, I hope she spends it on a one way ticket to hell. Thanks in advance for your time and reply.

The answer to your question should be found in the Separation Agreement which your father and his ex-wife executed prior to 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 minimum legal cost.

Leonard M. Weiner, Esq./Divorce Solutions

Question #135:I was married for almost 20 years and my ex-husband and I had two children. Our marriage deteriorated because our ideals, interests, goal and dreams changed dramatically in the last 3 years of our marriage. I left and we agreed to share custody of the children. After a year of separation, we divorced. 6 months before our divorce paperwork was even commenced, I lost my job due to downsizing. Now divorced for almost 6 months, I am still unemployed but continue to share custody and 1/2 of all expenses for the children, as agreed. My ex-husband has a 401K through his employer now for more than 9 years in the approxamt of %$50,000. By law, am I entitled to any portion of these monies even after divorce?

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 the course of 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 was filed with the county clerk, your rights to claim any income earned or assets acquired after that time by the other party terminates.
In order to properly answer your question, therefore, 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 the course of your marriage. You do not have any claim ,however, to any portion of that retirement account that was earned after the termination of your marriage.

Leonard M. Weiner, Esq./Divorce Solutions

Question #125:Hi, My mother is has been married for over 46 years but has been separated for over 22 years. My question is would she be entitled to his pensions; he worked two jobs for over 35 years. If yes, at what percent. She is thinking of getting legally separated. Thank you.

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 spouses pensions. Certainly 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 #123: I have been married for 11 years and have been contributing to a 401K at my place of employment. My husband has always refused to invest in a 401K through his workplace or any other. – stating that he “could not afford to invest the money”. I have ALWAYS paid AT LEAST 50%, sometimes more to the monthly household bills. Now since the divorce has been mentioned – he claims that he will sue me for my 401K (along with take my daughter, have me committed and burn the house down). Can he just take 1/2 after he refused to invest in one?. Should I quit investing, or put the money in something else?

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 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 post nuptial agreement or perhaps separation agreement, depending on your relationship, in which you spell out exactly what is marital and what is to be separate property. This must be done by a competent, experienced attorney in order 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