FINANCIAL ISSUES – MARITAL PROPERTY V. SEPARATE PROPERTY – Page 13

Oct 31, 2018

Question #194:Hi…I think this is a fantastic site. Hopefully you can help me out with a question. I was seperated from my husband in early 2003. We went back and forth with the support and finally he gave in enough where I signed the papers. The divorce was finialized in Sept 2006. While we were going through the agreement (2003 – 2006), my ex-husband’s company downsized and subsequantly he found a new job with less money (went from 180K – 110K). The alimony, child support and misc money which we agreed upon was based on his old salary; however when the papers were signed and went before the job, he was at his new salary. I just got a job making $42K / year. This is my first job after 12 years of not working. My ex pays me $3000/month for alimony and $2500/month for child support. In addition he pays for my daughter’s dance (4K/year) and my two son’s baseball and basketball (500/year). My fear is that now that I have a new job, he will try to claim “poverty” and have my alimony reduced. Is this possible? Can I be taken back to court and how soon? Will I be given enough time in my current job (starts Feb 12th) to make sure I am comfortable and that I will stay in this field before he drags me back to court? When I told him I would need help with babysitting fees, he told me he already paid me enough and I am lucky he hasn’t taken me to court based on my ‘increased income”. Is this possible? Please help.

In order to properly answer your question I would have to review your Separation Agreement and examine the spousal support and child support provisions. Generally , the court will not modify the child support and maintenance support provisions of a signed agreement unless there is a radical change in the incomes of one or both […]

Oct 31, 2018

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 […]

Oct 31, 2018

Question #191:I live in NY state. What happens if I buy houses and I am not legally separated from my wife. I left the house over 3 years ago because we had fights and I was asked by her to leave on several occassions. I finally left and have been taking care of my two daughters financially and physically (doing things with them as I had been doing when I was living there, they live with her). She make approximately 3 times of what I make. I filed for an uncontested divorce before I bought the houses, does she have any claim to them? Also, do I have to give her 25% of my gross salary, remember she makes 3 times the amount I do and her salary alone is well over $90,000.

Generally, the court will look to the date upon which the summons and complaint was served as the cutoff date with regard to determining marital property. However, in certain circumstances , the judge has the discretion to extend the date to the date of the filing of the actual divorce judgment is well. With regard […]

Oct 31, 2018

Question #187:My father passed away Oct 28 2005, he had not lived with his second wife for almost 12 years, before he passed he was sick and gave me power of attorney and told me what he wanted done with the money from his life insurance policy (which was to evenly distribute it amongst myself and my 3 other siblings.) After his death I found out that I was not on the life insurance policy as a beneficiary, but he never removed his second wife from the policy. After that much time apart are they considered divorced due to abandonment? If they are divorced what do I have to do to stop her from getting the money?

Unfortunately for you, if your father never legally divorced his 2nd wife she is still considered his wife .Secondly, if he told you that he wanted you and your siblings to be the beneficiaries of his estate, you should have asked for a copy of the insurance policy and made sure that it reflected his […]

Oct 31, 2018

Question #186:My divorces become final in August of 2006. In my divorce decree it states that my ex husband has to transfer the house into my name and to remove his name from the house. It also states that he has to transfer the deed into my name within 30 days. As you can see, it is well past 30 days. What can I do to get the house in my name? Also can I sell the house even if he hasn’t signed the papers to transfer (my name was never on the house) and only use the divorce decree to sell the house?

You should first try to contact your ex husband or his attorney and see if you can resolve the matter without having to go to court. In the event that it is impossible to get any response from him or his attorney, you should contact your attorney to file at Order to Show Cause demanding […]

Oct 31, 2018

Question #185:My husband and I have been married 12 years. I have a 19-year-old daughter and 15-year-old son from a prior marriage. We have a 11 year old together. My husband has never contributed monetarily or emotionally to the raising of my 2 older children. He has also not financially to the expenses of our 11 year old. The only items he’s contributed to are $800.00 for summer camp and 1/2 of his football tuition (for the first time this year) I alone pay for my daughter’s full time college tuition/board and expenses. I buy all of the children’s clothing, shoes, spending money, car, etc. My husband pays most of the household bills and I pay approx. $2000 per month toward the mortgage (he pays about $400). I also buy all the food for the house. I desperately want a divorce and have instituted proceedings 2x’s. We start counseling and nothing changes. My husband will NOT leave the house and I am having an extremely hard time handling living w/ him. Can I leave the house, with my two children (the oldest is away at school). I would stay in the same town so I am not attempting to keep him from his child, I merely cannot live w/ him anymore. Also, I make substantially more than my husband, approximately $136,000 (inc. bonus) to his $70,000. This is the reason he gives for the total disparity in the amount of money he contributes. However, due to the difference in our expenses, he actually has more disposable income than I do. Also, I have made all repairs to the house. He will not pay for anything and my house is falling into disrepair. Please advise.

You did not indicate what state you are living in. You also did not indicate when and how you acquired the home. Did you acquire it prior to the marriage with your own money, or did you acquire it during the course of the marriage with money earned during the marriage. Also, how is the […]

Oct 31, 2018

Question #184:Hi. I live in NY, have been with my husband for 16 years and married for 14. The house that we live in was my grandmother’s house, which was passed to my parents. I bought the house for $1 from my parents 1 month after my marriage, as it was a stipulation in their divorce. I have lived in the house my entire life. The deed and the mortgage are both in my name alone. He worked throughout the marriage, but jumped from job to job and hardly contributed any money toward the bills. He literally spent everything he made on himself and his toys. My question is: What chance do I have to keep the house and not have to give him anything? There are 2 children and they will be staying with me. Thank you for any information you can provide.

Technically, if the “Dollar” you used to purchase the house came from funds you had prior to your marriage, and as you say, you kept the title to the property solely in your name, the property should be considered separate property and not marital property and your spouse would have no claim to it. In […]

Oct 31, 2018

Question #183:MY HUSBAND AND I HAVE BEEN TOGETHER FOR SIX AND A HALF YEARS. WE HAVE A FOUR YEAR OLD CHILD. HE HAS A HOME THAT HE PURCHASED IN NY THAT WE USE TO RESIDE IN. WE NOW LIVE IN NJ IN A HOME THAT’S IN HIS NAME. WE GOT MARRIED IN JUNE OF THIS YEAR AND EVERYTHING SEEMS TO HAVE GONE DOWN HILL FROM THAT MOMENT. MY QUESTION TO YOU IS, AM I ENTITLED TO EITHER OF THE HOMES IF WE WERE TO DIVORCE NOW EVEN THOUGH WE’VE BEEN TOGETHER FOR YEARS BUT ONLY MARRIED FOR MONTHS? PLEASE ANSWER MY QUESTION AS SOON AS POSSIBLE. THANK YOU FOR YOUR TIME.

You do not have any claim to property owned by your spouse prior to the actual, legal marriage.Even if he acquired the property during the marriage, but used funds he had prior to the marriage and kept the property in his name, it is separate property and not marital property, and you would have no […]

Oct 31, 2018

Question #182:My parents are considering a divorce, but an attorney recommended a legal separation. They are in their early seventies and have no intent to re-marry. My father thinks he can leave her with absolutely nothing after thirty-five years of marriage. He also wants to leave the country and go back to Italy his native country. What rights as a legal U.S. resident does my mother have and what can she do to cover her back in this soon to be stressful situation? Any information would be greatly appreciated!

Any property acquired during the course of the marriage from funds earned during the marriage regardless of in whose name the property is held is considered marital property and each spouse would have approximately a one half interest upon divorce depending on the particular laws of the state she is a resident in. That applies […]

Oct 31, 2018

Question #181:ok 3 years ago i sold my house to buy land and move to new york state with my husband of 3 years – we also purchased a fishing lodge we have been running for 3 years – i had to take a full time job out of the home because i had a better ability to make a lot more income than him. he was suppose to take care of the lodge – his contributions were minimal, however he had no issues in spending all the money i was making – for the last couple of months he has been acting very funny – i thought it was clinical depression – he denied there was someone else – however, the dummy went around telling people he was unhappy and was screwing a 24 year old – one weekend when i was out of town he even went as far as to take her to two of our friends house – i got a call and came home a day early to talk to everyone that had seen, met or heard anything about her – when i confronted him on his cell phone he still insanely denied my accusations however he was with her and when he got her back in the truck to come home and handle me his cell phone accidentally called me back and i was privy to a conversation between him and his lover about me – that night and since then (it has only be a few days) he has been shacked up with her at another lodge in our neighborhood four blocks down the road – i even confronted them myself with disbelieve the first time i saw them out there together – this was within 24 hours of me coming home to find out what was going on!! Here is my question – i have worked my fingers to the bone – he has taken full advantage of me and my finances and has obviously run off with this young girl – i aggressively want to protect what i have worked to hard for – does the state of new york take into consideration peoples actions when it come to splitting the marital assets?????

Property acquired during the course of the marriage with money earned during the marriage is marital property, regardless of how the title to the property is held. If the house you sold was your separate property and you purchased the lodge with that money and kept the lodge in your name only it would be […]

LEONARD M.WEINER, ESQ, Ph.D.

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FINANCIAL ISSUES - MARITAL PROPERTY V. SEPARATE PROPERTY