FINANCIAL ISSUES – MARITAL PROPERTY V. SEPARATE PROPERTY – Page 14

Oct 31, 2018

Question #180:My husband and I have been married for 9 years. We live on Long Island, NY. Four years ago, my parents gifted (in my name only) $150,000.00 in equity in their home. We put 27,000.00 down (20,000 down payment, 7000 closing costs). We mortgaged the house for $130,000.00. On the side, we agreed to pay my parents $50,000.00 additional, but this was not drawn up in the paperwork. My parents sold the house for about half the market value so that I would have this house to raise my children. We now have three children. When we purchased the house, my husband verbally agreed that in the event of a divorce, he would walk away from the house since all of the equity in the house was really earned by my father. Now, I find out my husband is cheating. He says that he wants to make the marriage work and is willing to sign a post-nup waiving all rights to the house in the event of a divorce. Can a post-nup waiving all rights to the house stand up in court? Will I need to provide “consideration” and if so, will $5,000.00 cut it? One last question, he earns about $67,000.00 and I only earn $26,000.00 because I work part-time because my kids need me. Can you give me an idea of what I can expect for child support and alimony? Help!!!

A postnuptial Agreement will certainly help resolve this issue regarding ownership of the house and can also address any other issues you are concerned about in the event of divorce. Child support is statutory and depends on the number of children, the incomes of each spouse and any unusual circumstances such as illness of infirmity […]

Oct 31, 2018

Question #179:I have been married for 16 years to my current husband. I just recently discovered he is having an affair. This is his second (that I know) affair in the past two years. He wants a divorce. This is the complicated part. Many years back, we had decided that I would stay home to raise our children. When the time came I did just that. 16 years later,8 kids, two college degrees for him and loss opportunities for my career advancement, he decides he doesn’t want this marriage any longer (He is still continuing his affair). I am unemployed and need time to develop skills to reenter the job market. He is planning to put the house up for sale and move-on with his life. How can I protect my kids and me from having him leave us homeless and without financial resources? Can I regain some monetary value for helping him advance in his career while I was the responsible one at home? Should I file for a separation if I ask him to leave the house?

If the house was acquired during the course of the marriage with funds earned during the marriage, the house is marital property and you would have an approximate one half interest in it no matter how title is held. If you were to file for divorce, your husband would be ordered by the court to […]

Oct 31, 2018

Question #178:I am struggling to find a way to be sure that my 83 year old father’s new wife doesn’t original artwork that was a gift to me and that I gave to my mother, who loved the work, and I did not have appropriate wall space. There was no family information on who received what after my mother’s death. After her death (Indiana) my then 81 year old father moved into an Independent Living complex, which my brother and I set up for him. I hung the artwork gifted to me on the walls. Very shortly after my mother died, my 81 year old father began living with a woman. She came to his complex and seeing the art wanted him to bring it with him to New York. He asked me if that was all right, and I said yes, thinking it would be good for him to have something from his previous life. After one year of living together, they decided to marry. Prior to the marriage he asked me if he could give the paintings to the new wife, who loved them. I said no, but he and she could continue to enjoy them. They then got married, and in the pre nuptials it states that upon his death ALL furnishings in the house go to her, and upon her death ALL furnishings (with the exception of another painting owned by my father) go to her estate. Essentially my father, without my knowledge, has signed away my paintings to her if he dies first; if she dies first my paintings go to her adult children. If there any sort of legal documentation or way around this? I do not have title to artwork as it was originally a gift to me from a now deceased friend. Would he have to prove ownership? Is there any kind of document that I could try to get my father to sign that would overrule the pre-nuptial? Thank you.

If your father is of sound mind you can simply have him return the painting to you. He has a right to transfer the painting to you while he is alive. From what you state, his new wife has a claim only to furnishings that are in the house at the time of death. A […]

Oct 30, 2018

Question #176:Hello, My husband has been served the summons, the divorce has been filed. We were married in 1999. This house was given to me by my father in 1999 before he remarried. My husband refuses to leave. His name is not on the deed. What can I do? Can I call the sheriff or police?

This matter should have been addressed in the Separation Agreement. If it is not, you should have your attorney get a court order instructing your spouse to vacate your home by a date certain. If there is a question of physical abuse or violence, you should immediately call the police and get an order of […]

Oct 30, 2018

Question #175:My husband and I have been married 6 years (Oct. 13, 2006), he has his own business and I am making $26,000 a year, we have a dog and 2 cats, which we acquired within the marriage. He owns two buildings (only in his name) that he acquired after we were married (a 3 unit and a duplex in NY) he has been very abusive (emotionally & sometimes physically) I have just started to see a therapist because I am a very depressed person and can’t handle his criticism and abuse anymore. I was wondering since we have 2 buildings, would I be able to stay in one side of the duplex and would he have to compensate me because it is more than I can afford due to him convincing me that my job was good because I have always carried insurance. He is very controlling and we are at the point of not even talking to each other and I know where this situation is going, he always tells me to leave. This is both our second marriage, the reason for his first marriage was that he was cruel and inhumane, as I was also, but I decided to be cruel and inhumane just to get out the marriage. It would be feasible for me to live in the duplex because of the animals that I have. (If I am able to keep all of them). He said that he would put everything in his sister’s name and I would not get anything. I do not know a lot about this situation, but would like to. Please advise, Thank you very much.

If the buildings were acquired during the marriage with funds earned during the marriage, they are marital property despite the fact that they are held in his name only and you would be entitled to approximately half their value. Do not allow yourself to be intimidated by his remarks or threats. If you are living […]

Oct 30, 2018

Question #174:My ex & I divorced in Kansas about 2 yrs ago she agreed and I was awarded the house. I did not get house put in my name because I feared bank reaction. She also did not sign quitclaim deed as stated in divorce decree. She took the paperwork to house and sits on the Internet and researches divorce stuff. I’d now like to sell and move she’s holding paperwork hostage and now asking for half of sale (originally 1/2 of profit [probably a break even sale as truck she got-loan rolled into house payments about 6 months before divorce [approx $16,000]. now she just says half of sale. Neither one of us followed through, as we should have after divorce. I’m not sure I even received official divorce papers, but what if anything can I do now. One realtor said take decree to county deed office? Will they require quitclaim? And once again I’m worried about mortgage co. My credit not great after divorce although I’ve been the only one making payments before and after divorce.

Once again, I cannot overemphasize the need to use an experienced matrimonial attorney when you go to court to get divorced. All of the paperwork including the quitclaim deed should have been completed before the divorce papers were filed. What you have to do now is go back to court and make a motion to […]

Oct 30, 2018

Question #173:I have been married to an abusive husband for 24 years and we have two children 19 who is a college sophomore and a 15 year old high school freshman…. I write a column once a week on the computer digital edition for a small town paper which has earned me 3400 /year my husband makes 68,000. I filed for divorce in the beginning of April of this year he buys what groceries he chooses, does not pay for my car being maintained told me to get used to paying things by myself….makes the kids beg for money if they need it ..there have been no allowances since April 1st for the kids. whati need to know is: since he says he’s not paying for college and that my son lives at school which he doesn’t he is home 5 months out of the year. he says he is not paying child support for him because he will not be living with me…my son doesn’t live at the school so i know my soon to be x has to pay for him till he is 23 how does college work or is that arranged thru the court if we cant figure it out with arbitration then the judge decides? my husband wants joint custody with my daughter who he cant get along with to save his soul it is another ploy to not pay so much in child support i know he is legally obligated to pay 25% of his paycheck to child support….. since we have been married for 24 years and i am not working ,i have a high school education and did not graduate i quit working when i had my son and became a stay at home and still do not really work only the col that brings in 30-60 a week depending on the length of it and what the editor uses. i am 48 years of age…..can you give me a rough idea as to what alimony or maintenance might be percentage wise? and how long? i have had no money and had to run my credit card up to 3,000 paying for things the kids have needed thru the months does he have to pay the credit card or is that up to a judge? what usually happens the first meeting what can i hope to get accomplished and what are my rights ……i would receive retirement or social security which was put in during the marriage or till i remarry? i mainly need to know now what percentage maintenance or alimony would be in my situation.. we live in new york

You raise many important issues, which unfortunately, I am unable to deal with in this short reply. However, with regard to spousal support open (alimony), unlike child-support, there is no statutory percentage of income, which is relegated to spousal support. It depends on many factors including net worth of each of the parties, the ability […]

Oct 30, 2018

Question #171:My ex-wife and I Filed for an uncontested divorce in PA. It was finalized last year Aug 2005. We were told that property distribution did not need to be done as both of us wanted to remain in our house with our kids. Now she has had her boyfriend move in and my boys and I want to move. She says that I am not entitled to anything because the divorce is final. What rights do I have?

I cannot properly answer your question, without reviewing the judgment of divorce and any Separation Agreement you entered into. You state, “we were told” by whom were you told? I cannot overemphasize the need to use an experienced, matrimonial attorney in all divorce proceedings. An experienced attorney would not have allowed you to divorce and […]

Oct 30, 2018

Question #168:My husband has asked for a divorce. After some significant damage to my credit due to my ex’s financial irresponsibility, I am seeking a legal separation until the divorce is final (which may be a while). I understand that the legal separation will not remove my name from accounts, but can I use the legal separation to prevent or remove missed payments and defaults from hurting my credit further? The large majority of our debt is my husband’s debt but some of it is in my name. If the legal separation stipulates he is responsible for the debt, regardless of whose name is on the account (credit cards mainly), can I still be held responsible for payments that he misses or makes late to accounts that are in my name? Will a legal separation do me any good? Is it worth paying the extra legal fees for the separation? Thank you for your help! [Continuation of previous Question] Thank you for the information, but I have just one more question for you. I understand that my name will not be removed from the loan and credit cards, and when my husband pays the payments late or not at all it will go on my credit unless I pay the payments myself. My question is can I take a legal document i.e. legal separation or divorce decree that states I am not responsible or liable for the debt to the credit bureaus and have the late or missed payments removed from my credit report? Is there any way to protect my credit without having to just pay for everything my self? I was told the only way to truly protect my credit is to pay off the debts myself and then sue my husband to be reimbursed the money. Is that true? Thank you for your time!!!

The first thing you should do is to terminate all mutual credit card and bank accounts that you have with your spouse, if you have not already done so. You are correct in seeking a legal separation and divorce in order to prevent any additional claims against you for the debts of your husband. Until […]

Oct 30, 2018

Question #166:My wife and I have been separated for the last year and 6 months and we have a 8 year old son that we share taking care of him. My wife has move into her own apartment while I’m still in the house. I guess my question is I would like to retain the house or if I decided to sale it can I get a little more scene I been paying all the bills for the last 18 months and if there anything I can do to keep the house because we were not married when we first move in the house and she still has the maiden name on the deed.

In order to properly answer your question, I would have to review your Separation Agreement and the judgment of divorce, and any other court orders that may have been issued. You may be entitled to the house. If you are living in the New York City metropolitan area, I strongly suggest that you mediate this […]

LEONARD M.WEINER, ESQ, Ph.D.

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FINANCIAL ISSUES - MARITAL PROPERTY V. SEPARATE PROPERTY

Question #176:Hello, My husband has been served the summons, the divorce has been filed. We were married in 1999. This house was given to me by my father in 1999 before he remarried. My husband refuses to leave. His name is not on the deed. What can I do? Can I call the sheriff or police?