FINANCIAL ISSUES – MARITAL PROPERTY V. SEPARATE PROPERTY – Page 16

Oct 30, 2018

Question #153:I’m 55 years old and have recently separated from my husband. Presently, I live with my daughter at the family home. For the last 8 years my daughter has contributed to paying for the house but has yet to receive any compensation for doing so. Recently, she has asked to receive 20% equity on the house as compensation and both my husband and I feel this is appropriate. My question is if my daughter ends up owning 20% of the house, I own 40% and my husband owns 40%, can my husband force me to sell the house if we were to get a divorce or does the fact that he now owns less than 50% preclude him from this? In other words, does it matter if the ownership structure of an asset is not 50%/50%? Hopefully my question isn’t too convoluted. Thanks

The percentage of ownership of the property is not the determining factor. The court will consider the need to sell the residence in order to provide funds for each of the parties. You may be able to acquire his portion of the property by providing him with some other equally valuable asset. By introducing your […]

Oct 30, 2018

Question #152: My husband and I have been separated for two years now, married for 7 years. I finally left after several attempts and have not gone back since. He carries the insurance on me an my child. He is not the biological father, nor was she ever adopted by him. I let her see him when he asks or when she ask. I’ve been scared to file for divorce because, I only make $10 hr. I will not be able to afford health insurance. He makes like $45,000 yr including bonus money every quarter. We had land on contract for deed, which I signed over to him after I left. We lived in a mobile home on the land which was his prior to the marriage. We purchased a 4-wheeler together which I signed for because his credit was bad. He promised to pay for the 4 wheeler if I would put it in my name. Needless to say it wasn’t long and he stopped paying the $150 month bill. It’s been in collections every since, like 6 years I suppose. When I left I had no way to take the 4-wheeler with me, I asked him to bring it to my parents’ house. He never has and continues to use it everyday. Is waiting to get a divorce hurting my chances at receiving maintenance? Can I receive it at all? I have a boyfriend now. He is convinced this is why I left him. I left because he is an alcoholic, and I didn’t want to deal with the mental, sometimes physical abuse any longer. I did not want to raise my child in that environment either, only to have her grow up thinking it was normal relationship and end up in the same predicament. What advice can you give me?

You should not have been so eager to sign over the property. You could have used that as leverage in order to have your husband assume the debt on the four wheeler and provide you with spousal maintenance. I do not see any benefit in procrastinating the filing for divorce. If you are unable to […]

Oct 30, 2018

Question #151:I am in New York City and considering a separation from my husband. If I move out without being legally separated, am I in anyway forfeiting my right to the homes/assests we own together? Can mediation be used to draw up separation papers?

Unless there is a problem with physical abuse, in which case I would suggest you move out immediately, it is best that you remain in the home until you have some written agreement regarding how the home/assets will be divided. This should be incorporated in the Separation Agreement which will deal with all of the […]

Oct 30, 2018

Question #150:My boyfriend and I have separated after 2 1/2 years, We have a two year old daughter and I am the custodial parent. He claims that he is claiming our daughter in his taxes this year because he pays child support, but $65.00 a week does not put a roof over my daughters head. I am the head of my household, I work and provide shelter, food, clothes etc. for my child. As much of a good father he is to his daughter, I don’t believe he has a right to claim her. Does he have the right to claim our daughter in his taxes or do I as the main provider? Please answer ASAP! Thank you

Generally, the right to claim the child as a tax dependent is addressed in the Separation Agreement between the parties. Even if you were not married, it still is a good idea to enter into a Separation Agreement , which would spell out exactly the relationship and the obligations of each of the parties. In […]

Oct 30, 2018

Question #149: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 30, 2018

Question #148:Right now my wife and I are still married but my wife doesn’t want to be with me. We bought a house while we were married in New York State. All the assets including the house are in my name. Is it possible to sell my house with out splitting the money of the house even though the deed is in my name? Would it also matter if there are no divorce papers yet? I am the one who pays all the bills for the house and maintains it; will my wife still get 1/2? If I can prove this will this stand up in court? Is there any other legality issues regarding the house that I should be aware of? Thank you for all your help I appreciate all the information you can provide.

If the house was purchased with monies acquired /earned during the course of the marriage, the house is marital property and subject to equitable distribution. Thus, although the house is in your name, and you could sell the house now without your wife’s consent, in the event of divorce, the court would make you give […]

Oct 30, 2018

Question #147:Hello. This is the first time I am contacting a mediator after years of thinking about legal separation/divorce. The first question I have is…Is it ok for me to leave my apt that I share with my husband before we sign a legal separation agreement? I have not told my husband that I am seriously considering separating although we talk about it frequently. He is opposed, but would not hold me back. I would like to move out of the house first so I do not have to face uncomfortable feelings…but dont want to do anything that will hinder this process. Do I need a consultation?

Unless this is a case involving physical abuse, in which case I strongly recommend that move out of immediately, it would be most prudent that you remain in the house, especially if you intend to claim an interest in the house either by personal contribution or as a result of it being marital property. Before […]

Oct 30, 2018

Question #146:I am getting married and I have a house that I bought being married to another man. Would my prospective husband have a right to acquire my property in case of divorce? thank you.

If you acquired the property prior to the marriage, kept the property in your name only, and did not co-mingle the property in some other way, the property remains separate property and not marital property and your prospective husband will not have a claim to it. If he contributes to the upkeep of the property […]

Oct 30, 2018

Question #145: My husband and I have been married for 25 years and I had known him 4 years prior to that. I am 45. We have been separated for nearly 2 years. I left the home in TX and reside in our joint home in IL. I left for emotional abuse issues as he wanted an open marriage and I did not. We are on very good terms and have substantial assets. Neither of us want to disrupt our marital assets but due to my religious beliefs, I think divorce is necessary. What options are available to keep the real estate, stock, stock options, bonds and investment accounts uninterrupted while still attaining a divorce? I appreciate your time greatly!

What you must do is enter into a written Separation Agreement in which all of the property will be delineated and divided as you both agree upon. This can be done through mediation in which we would first make an accounting of all of the marital property ,the value of each item, and then discuss […]

Oct 30, 2018

Question #144:My husband and I are heading to Divorce after 9 years of marriage. Domestic Violence, alcoholism and affairs (his) have been a constant. I am due to receive a significant settlement for an employee discrimination lawsuit I filed. I have been advised to file for Divorce PRIOR to completing the actions necessary for me to receive the settlement. A few months ago, my husband ‘found’ an attorney to handle the settlement process for me, this attorney drafted a retainer that listed my husband and I as clients, yet specified therein that both the lawsuit and settlement check is/will (be) in my name (only). Advice? We are in New York State.

I would strongly recommend that you follow the advice you received and file for divorce prior to concluding the settlement. If the award or settlement is still questionable at the time when you file the summons and complaint, you may maintain that the recovery was not assured and therefore did not exist prior to the […]

LEONARD M.WEINER, ESQ, Ph.D.

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FINANCIAL ISSUES - MARITAL PROPERTY V. SEPARATE PROPERTY

Question #151:I am in New York City and considering a separation from my husband. If I move out without being legally separated, am I in anyway forfeiting my right to the homes/assests we own together? Can mediation be used to draw up separation papers?

Question #146:I am getting married and I have a house that I bought being married to another man. Would my prospective husband have a right to acquire my property in case of divorce? thank you.