FINANCIAL ISSUES – MARITAL PROPERTY V. SEPARATE PROPERTY – Page 19

Oct 30, 2018

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 […]

Oct 30, 2018

Question #122:My Husband was married for ten years prior to meeting me. He got the divorce and we got married. My husband is 17 years older than I am. We have a 10 month old child together. I am worried if we buy a house and God forbid my husband dies before I do, does his ex-wife have any legal rights to the property that we acquire? We live in NYC.

Assuming that the divorce which your husband received 10 years ago was valid, any asset which he acquired after that time should be separate property and not marital property (of the first marriage). There should also have been a separation agreement in which one of the provisions spells out the division of all property and […]

Oct 30, 2018

Question #121:My father resides in and works for NY state. My mother had an affair and has not been in the home for 2.5yrs. What laws, if any, protect my father and his retirement fund after the divorce?

There are no laws that protect your father’s retirement fund. Your parents must enter into a legal separation in order to protect the assets which they acquire during the course of the marriage from the claims of the other spouse. Until that is done, they are still continued to be deemed legally married and have […]

Oct 30, 2018

Question #120:I would like to know if my wife, is entitled to any profit on my house. Live in New York. I bought it in 1988. She moved in November 1995. Refinanced it in February 1998. I put her name on the deed, we were not married at the time. Since then I have paid $40,000 in mortgage payments. We got married in June 1999. We have been separated since July 2002. The refinance was to pay off a car that I owned prior to marriage. And to do some remodeling on the house. I owe more on the house now, than I did when she moved in. She put about $3000 in to something’s prior to marriage and about $500 to $1000 after marriage. Before she moved in I put about $25,000 of my own money into the house. And after about $15000.I bought it in a forecloser sale from a bank, I use to do work for. I do remodeling. And some of the thing’s she paid for was a deck, which she wanted, (materials only) that I built. My labor was worth more than the materials. Made a deal for her to put carpet in, and she could move in. So she could save money, by not having to pay any rent. And she saved a lot. I have paid 100% of the mortgage, and all utility. from day one. She has never paid anything on the house. Because she always knew it was my house. We also had agreed, that her money was hers, and mine was mine. We had separate accounts. I have agreed to give her a 1999 car. At the time of our separation, it had about $5,000.00 in equity in it. She wants me to give her $5,000 more, from the sale of my house. On top of the car. I’m thinking of selling my house and moving down south. Because my business is slow and my finances are not looking good, right now. What I’d like to know, can she get anything from the sale of my house. The car is the only thing we bought together, when we were married. I also found out that she had money in a savings account ( $3200). Which she told me she had no money, to make the car payment. Then she closed the account in April with ($2600) still in it. A day before I was served with divorce papers. On top of that she bought me a snow blower and lawnmower, as gifts. Then she sold them to her sister and her husband. I don’t want, nothing from her. I think giving her the car was enough for what she put in to the house. And I would be entitled to half of the car, which I’m willing to give up. Thank You

This case sounds like it is ripe for mediation, and should not be litigated. You’ll spend more money on attorneys’ fees and court costs than you’ll receive from the proceeds of the sale. If you are living in the New York City metropolitan area I strongly suggest that you call me at 212-370-1660 to discuss […]

Oct 30, 2018

Question #119:Can I offer a one lump monetary settlement in lieu of traditional alimony payments, that includes a monetary sum and the cumulative sum of the value of precious gems i am willing to give her.

One of the many advantages of mediating, rather than litigating a divorce, is that you can provide creative solutions to meeting and satisfying the needs of both parties. If you are located in the New York City metropolitan area, I strongly suggest that you contact may at 212-370-1660 to arrange for a meeting to discuss […]

Oct 30, 2018

Question #118: My wife and I separated and divorced about 12 years ago (uncontested). While married we purchased a co-op apartment in Brooklyn N.Y. After moving into the apartment for about two years she moved out taking our two small children with her (paying child support), She was having an affair. I remained in the apartment assuming all financial responsibilities. About a year ago I moved to Connecticut for job purposes since I lost my job in New York city. I decided to sell my apartment and found a buyer willing to pay me a good amount. My former wife never expressed any interest in the property, never paid towards the mortgage or maintenance, or any upkeep. I informed her that I would need her to approve the sale since her name is still on the documents. While I was looking for a buyer she never expressed her opinion, never said she would not sign and so on. Suddenly she gets an attorney who is demanding 50% of the net proceeds. I am about to lose the buyers because of her actions I offered her $25,000 she is demanding at least $50,000 half of the net sale price. I am hoping I can still sell the apartment and then sue her for her share of the costs which is about $55,000. In summary she lived in the apartment for about two years, after she moved out in 1990 she never made any payments for 13 years. Please any advice that you can give me would be greatly appreciated. Thank You

If your Separation Agreement were drafted properly by a competent and experienced attorney, you should have a provision in it which discusses the ownership rights to the apartment, and when and if it is sold, how the proceeds will be divided. By maintaining her name on the ownership of such apartment, she has a legal […]

Oct 30, 2018

Question #117:My wife and I are living in the same house, not separated. We are both aware of severe problems in the marriage. Within a day or two I will discuss with her that I am leaving. I put an offer on a nearby house (to be near our son) that was accepted. I was “pre-approved” for a mortgage based on my salary alone, including 17% subtracted for child support. The downpayment will be a gift from my father. Closing date is still 5 to 8 weeks away. Will this new house be considered “marital property” in New York State?

In order to maintain this property as separate property and not marital property, you must put only your name on the deed ( not with your wife), use only funds which you received as a gift from your father, and do not use additional funds which you acquired during the course of the marriage to […]

Oct 30, 2018

Question #116:I was married in 1984 in NY and have one child with my spouse. My spouse filed for divorce in 1993. Towards the end of the divorce/custody proceeding (in 1995) which I was to get sole custody, my spouse abducted our child and left the country for 5 years. In 1996, I enrolled in a 401k at work and opened a IRA. When they were found in 1999 my spouse was arrested and incarcerated for a short time. The divorce was granted but soon dismissed because my attorney did not file for an “extension of time.” Since that time there have been (2) two custody cases in which I have won. She has since purchased her own home, paying cash. Now I am faced with filing for the divorce again and want to know if my spouse is entitled to any part of my 401k, IRA, equity in my home or maintenance.

I do not understand exactly what you mean when you say the divorce was “granted” but then dismissed because of failure to receive “an extension of time” . In any case, since you did not enter into a legal separation, you are still considered married and technically all of the assets you acquired during the […]

Oct 30, 2018

Question #115:I have been married for nine years and live in new york city. Recently I added my wife’s name to our primary residence as well as three investment properties. All of the properties were purchased several years before we married. The attorney who did the deed transfers advised me that in the event of divorce my wife would not be entitled to half the value of these properties but only half the appreciation of the property going forward. Another attorney told me i am totally screwed and would have been better off leaving her name off the deeds. Yet another attorney told me that after 10 years of marriage the court has discretion to include separate property in the equitable distribution calculation. Why are there so many varied opinions, are there not any clear cut laws.

Generally, property acquired prior to the marriage is separate property, and not marital property, and would not be subject to equitable distribution. However, since you added your wife’s name to the deed, you have in fact provided her a gift of one-half of the property and she may now claim that she is a titled […]

Oct 30, 2018

Question #114:I have been married for 5 years. My husband and I have 2 children, ages 1 and 4. He recently had an affair, and filed for divorce. My problem has to do with determining separate & community property. He owned two properties from a trust prior to our marriage. After we married, we used proceeds from the sale of one of the properties to buy a new home jointly. Later, we sold that property, took out a equity loan against his remaining trust property, and used it to buy our current residence. Over the years I contributed to the maintenance and mortgages of the properties, loans, bills, etc. Most all of our funds have been “comingled” in joint banking accounts. He is claiming that we have no “community property” because of the trust issue – we live in California – and I am only entitled to split our debts. Is there any documentation that I might have that might help resolving this matter? What can I do?! Thanks for your help!

By contributing the assets which were originally part of your husband’s trust funds which were his separate property, your husband has in effect made a gift to you of the funds which he had. This is true especially since you are now contributing to the maintenance, mortgage, and other property expenses. The issue is somewhat […]

LEONARD M.WEINER, ESQ, Ph.D.

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FINANCIAL ISSUES - MARITAL PROPERTY V. SEPARATE PROPERTY

Question #121:My father resides in and works for NY state. My mother had an affair and has not been in the home for 2.5yrs. What laws, if any, protect my father and his retirement fund after the divorce?

Question #119:Can I offer a one lump monetary settlement in lieu of traditional alimony payments, that includes a monetary sum and the cumulative sum of the value of precious gems i am willing to give her.