FINANCIAL ISSUES – MARITAL PROPERTY V. SEPARATE PROPERTY – Page 17

Oct 30, 2018

Question #143:Is New York State a community-property state? Thank you.

No, New York is not a “community property” state. However, New York has what is called “Equitable Distribution” which is similar to community property but provides the judge hearing the case with somewhat more discretion to allow one party to receive more or less than the other party , depending on the circumstances.

Oct 30, 2018

Question #142: I am not married, but we have been living together for close to 4 years and have a 2 year old child. Throughout this relationship I have suffered documented physical and mental abuse. I want to leave but, i only make 24K per year, after taxes that’s 1,600 per month. There is no way I would be able to pay rent (Lowest possible rent in upstate NY $550) Daycare ($680 per month/$170 per week) Utilities $200-300 per month. Online DSL $44.00 per month (I am in my 3rd semester of college fulltime on-line). He makes 100K per year will he have to help me at least pay for daycare? The only reason why i am still with him is because I want my child to have both parents around him, and live in a nice home. But I can not take it anymore.

You are entitled to child support for the child, and depending on your exact relationship, whether you held yourself out as a married couple, you may be entitled to some type of palimony as well. You should discuss your feelings with your partner and perhaps go to some form of counseling for the sake of […]

Oct 30, 2018

Question #141:My husband and I own two homes in two different states just recently he changed the locks on the second house. Can he legally do this without my knowledge? I asked him what he was doing at the house and he said he was just checking on things. Do I legally have the right to call a locksmith and enter the home? He hasn’t mentioned he wants a divorce, but all his actions tell me different. At this point I do not believe he has contacted an attorney, but I just want to make sure I go about things properly.

If title to the home which you refer to is in your name, whether title is held in your name only or jointly with your husband, you have every right to have access to such home. If title is held in his name only, then the issue becomes more complex. In the event of divorce, […]

Oct 30, 2018

Question #140:I and my wife live in Virginia. We have two underage children and we own our own home. I have several questions. I want to pursue having a legal separation. My wife and I don’t have any rancor toward one another so we want to do this as cheaply as possible, but we do want to ensure our individual interests and our children’s interests are protected. I will be moving out of our joint home (as a residence), but we still want me to maintain joint ownership of the home (as property). Is this possible? We really don’t want to sell our home, because we want my wife and the kids to continue to live there. Also, the home is my primary investment in my future and I don’t want to give it up, and my wife is okay with this. Neither of us can afford to buy our share of the home from the other. Also, I am bisexual and will likely pursue an intimate relationship with a man after my wife and I legally separate. My wife understands and accepts this. But, if I did so, would I be violating a legal separation agreement? One of our goals for the legal separation is so that I can explore in this area of my life. If a legal separation prohibits sexual contact with another person (in my case, a male), what do I do? Finally, I am in the will of an elderly relative to receive a small inheritance. It seems greedy, but my wife has more resources than I do, and I would like to see that I receive the full small inheritance when that time comes. Would a legal separation ensure that it would come entirely to me, or would I still need to split the small inheritance with my wife? I want to do what’s right, but given my financial circumstances, I’m not in a position to do more than what’s right.

I believe your situation is ripe for mediation. You should engage in an experienced attorney-mediator who can draw up the Separation Agreement which should provide for retaining the home as “tenants in common” instead of “as husband and wife” but which will allow your wife and children to remain in the home, and for you […]

Oct 30, 2018

Question #139:My husband and I have been married for 10 years. We live in Manhattan, New York City, and have 2 children, ages 5 and 7. I have been the main provider for the family and make about $80,000 a year. My husband makes about $20,000 a year. During our marriage he completed a Ph.D. while I worked full time, and had promised to contribute more after finishing, but 4 years later, he has not got a better paying job. We bought a coop apartment that is worth about $400,000 more now than when we bought it. My family gave us the money for the down payment and I have made all the mortgage payments since, but both our names are on the papers. My family also gave us about $40,000 in stocks that we have had to sell. We have no money in savings. We now both want to get separated or divorced, and my husband wants to sell the apartment and divide up the profit equally. I do not want to move and would not be able to afford a similar place to move with the children, who would certainly stay with me. Renting a similar place would cost about twice as much as I am paying monthly, and would be a waste of all the profits from the house in my opinion. I would be willing to refinance the apartment and give him money to get himself started, but not $200,000 and I think he will not agree to that. Would I be forced to sell my apartment?

Since the property is registered in both names, your husband will have a claim to a share of the property, unless you can prove that the money given to you by her parents was given to you only and not to him. Since the property is held in both names, however, the presumption is that […]

Oct 30, 2018

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 […]

Oct 30, 2018

Question #137:Near the end of my marriage I was at work on a textbook which was about 50% complete at the time we filed for divorce. (We are attempting to negotiate a resolution.) A second book, based on the first, was begun several months after filing, but required substantial additional work to complete. My wife did not contribute to the creation of either book. Both arise from my job as a teacher. Are either or both books marital property? If so, are there guidelines for an appropriate spousal share? We are NY residents.

Marital property is generally defined as all property acquired during the course of the marriage other than through gift or inheritance, regardless of in whose name the property is held .Thus, according to the facts you presented, 50 percent of the first book appears to be marital property, whereas the second book, which was not […]

Oct 30, 2018

Question #136: My husband and i have been married for 7 months and are already discussing divorce. Clearly we should not be married to each other. My question is His parents offered to help us by paying for the wedding or by getting us into a house. We opted for the house, and it was purchased . The mortgage is in his parents name as well as his. I was led to believe that once we were married that my name would be added to the deed, it in the has not been added. I changed my mind about having children(dont want to)and that is why we are discussing the idea. I have contributed to half of the financial responsibility, but am not on the deed. Should i stop contributing? The insurance policy however lists me as primary insured. I have been contributing half of the payments to the mortgage even though my name is not on the deed. I am wondering if i have any entitlement to the property. We have made improvements to the house during our engagement and were led to believe that the house downpayment was a “wedding gift”. Who gives a gift to just the groom? Anyway the house has increased in value, if we sell am i entitled to the money at all, only the increased value, or to all of it or none of it?

The fact that you were not listed on the deed indicates that the property was a gift to your husband and not to you despite what you may have been told or promised. As such, you do not have an equity interest in the property. However, if you have been contributing to its upkeep and […]

Oct 30, 2018

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 […]

Oct 30, 2018

Question #134:Married 28 years,became disabled 1995 permant. 13 year old daughter for both need to leave home per doctors, emotionally. what kind of support can i expect for both of us. long beach, n.y.

The amount of support will depend on your spouse’s income. The statutory requirement for child support for one child is approximately 17 percent of the total income of both parents up to $80,000, after which the court has discretion. Spousal support or maintenance will depend exclusively on your ability to earn income, your spouse’s income, […]

LEONARD M.WEINER, ESQ, Ph.D.

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FINANCIAL ISSUES - MARITAL PROPERTY V. SEPARATE PROPERTY

Question #143:Is New York State a community-property state? Thank you.

Question #134:Married 28 years,became disabled 1995 permant. 13 year old daughter for both need to leave home per doctors, emotionally. what kind of support can i expect for both of us. long beach, n.y.