FINANCIAL ISSUES – MARITAL PROPERTY V. SEPARATE PROPERTY – Page 21

Oct 30, 2018

Question #101: We have a legal separation which is 5 years old. At the time, my husband wanted his complete retirement fund and I wanted 2 houses. He agreed at the time that he house equity off set his cash and that is how we did the agreement. His cash has now been seriously depleted by stock market down turn and he wants to change our agreement. Is he going to be allowed to change our agreement to do this?

In order to properly answer your question authoritatively, I would have to examine the written Separation Agreement you refer to. Assuming that the information you stated is absolutely correct, your husband should have no recourse to now claim an interest in the houses. If you are considering completing the process of filing for divorce (it […]

Oct 30, 2018

Question #100:I have been married for a year and a half. I believe there is infidelity on the part on my husband. I constantly find phone numbers, condoms (we don’t use them), receipts for gifts bought for other women(I know for a fact they were for women), disappearing acts, etc. I tried to talk with my husband to get to the root of the problem which only further aggravated the situation. He decided that since I don’t trust him, he was leaving and has been gone for about two months. In the meantime, I have been left without financial support and have gotten behind in my bills. We both worked, but my salary almost doubles his. This does not make handling the bills on my own any easier since without his income I am living above my means. What recourse do I have financially if I pursue separation financially? I would hate to be supporting him financially because I make more money. We have no children together, but I have three from a previous relationship. I want to separate, but I surely don’t want to pay him for leaving me.

Although you make approximately twice as much as your husband, since the duration of the marriage is only one year and a half, the amount and length of spousal support should not be that great. On the other hand, if you were both contributing your incomes to be able to live a certain lifestyle, he […]

Oct 30, 2018

Question #99:I live in New York, my husband of 3 years has not worked 2 1/2 years of those. His mother recently deeded him and his brother a piece of property for $1 which now they are fighting over. His brother has offered him monies for the property and we are now no longer living together, am I entitled to fight for any of these monies?

Property which is received by gift or inheritance and maintained in an individual’s name and not co-mingled with other marital property, will remain separate property, and not part of the marital estate. Therefore, in the event that you were to divorce from your husband, the property would not be included in the marital estate and […]

Oct 30, 2018

Question #98:If a car is given to me as a gift by my mother while I’m married, can my husband have any claim to it whatsoever, (monetarily or otherwise), if we divorce? (I live in New York.)

In the State of New York, marital properly is generally defined as any property or asset acquired during the course of the marriage, regardless of in whose name the property is held, except for property received by gift or inheritance. Therefore, if your mother expressly gives you the car, and the car is registered in […]

Oct 30, 2018

Question #97:I am due to inherit (as beneficiary on bank accounts and as Trustee of a Family Trust) a large sum of money upon the death of my mother. Naturally, I’m writing because my marriage is looking more and more like a ship off course…My question: Should I inherit the monies mentioned above, keep them in accounts only in my name (perhaps my children’s names as well), and keep a paper-trail showing the money was inherited, will it be safe should a divorce ensue – even several years from the date of inheritance?

You have the exact right idea! As long as you keep all of the inheritance, including all assets, stocks, money etc. inherited in separate accounts, not co- mingled with your marital assets, and keep them in your name, those assets will remain separate property, not marital property, and will not be subject to division upon […]

Oct 30, 2018

Question #96:I have been married for 22 years. I moved out in March 2002 to live with and care for my terminally ill Mother who has just passed away. He has discussed divorce many times. Now he’s stalling. My Mother left me her estate. If the divorce isn’t started, is he entitled to this estate as part of a settlement? I live in New York.

As long as you maintain the estate property (including any cash, stocks or other financial accounts) in separate accounts and not co- mingled with your marital accounts and assets, and keep the account solely in your name, they will remain separate property and not marital property, and not subject to division upon divorce. I strongly […]

Oct 30, 2018

Question #95:I want to apply for divorce, but i have a question if I can do it right now. My husband currently does not work for W2 from, but he receive money as self-employed(1099 Form). I don’t know the amount. My income is $40,000 and I have about $7,000 on my saving. He owes the coop-apartment( he bought it before we got married) and i know that he has a lot of money in stocks, i am not sure if he has saving account. My question is in case if I’ll apply for divorce, can he apply for alimony for him?

Theoretically, you are correct in being concerned about your husband’s requesting that you provide him with spousal support. But in reality, if he is in fact earning cash, the court will investigate and determine approximately how much he is in effect earning and therefore this alone should not prevent you from proceeding with a divorce.If […]

Oct 30, 2018

Question #94:My wife and I have been married for 4 years with a 3 year old daughter. We married right out of college with barely any assets. During our marriage she has always kept our money and credit separate. Now she is demanding a divorce with 17% of my salary as child support (We both make similar salaries). But she says I can not touch her assets. She has even threatened to send her money to her family in China. What can I do to find her assets, am I entitled to a portion of them, and is she liable for any of my debts that I incurred during our marriage (individual credit accounts)? We live in NYC.

Any money or other assets acquired during the marriage other than by gift or inheritance is generally marital property and will generally be divided 50-50, no matter in whose name the property or money is held. Child support is a different issue. There is a statutorial requirement to pay 17% for one child, but the […]

Oct 30, 2018

Question #93:Child support payments in NY State are17% of combined gross income, pro-rata, correct? My wife’s annual gross is about $4,000 more than mine. For my one son, this would amount to $625.00 per month! I know from detailed budgets I kept, that it never cost us even close to that. What is this money for? I’ve been told what it doesn’t include, please tell me what considerations are put into coming up with that number.

The number is not based on a calculation of need per se, but is a statutory requirement under the NY Domestic Relations Law . The number 17% is for only one child and it is calculated on the combined gross incomes of both parents up to $80,000. After that, the Court has wider discretion to […]

Oct 30, 2018

Question #92: My wife and I have been married for over 40 years. Last year, out of the blue, she first asked for a legal separation and soon after mentioned a divorce. I have no idea what may have precipitated this; I am guessing that an affair may have been involved based on her and the suspected party’s actions and comments. A comment like ” I didn’t think you would care” almost sounds like an admission, but she has steadfastly denied this. She has been reading Stephanie Marston’s book, “If Not Now, When?” which never leaves her side. (I question some of the advice given in this book.) She wants to sell our home and property and split all our retirement savings. My question is can she legally get a divorce and walk away with half of our retirement funds that we worked so hard to get? My wife never had an income producing job.

You did not indicate what state you live in so it is difficult for me to give you a definitive answer. In New York, for instance, which is an “equitable distribution” state, each spouse is entitled to approximately one half of all marital property which is defined as property of any kind acquired during the […]

LEONARD M.WEINER, ESQ, Ph.D.

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FINANCIAL ISSUES - MARITAL PROPERTY V. SEPARATE PROPERTY

Question #98:If a car is given to me as a gift by my mother while I’m married, can my husband have any claim to it whatsoever, (monetarily or otherwise), if we divorce? (I live in New York.)