FINANCIAL ISSUES – MARITAL PROPERTY V. SEPARATE PROPERTY – Page 26

Jun 13, 2018

Question #113: Married 1971,children now 24,28.I started divorce 1993,husband unstable, Children and self left house for safety in 1994, Trial by jury in 1996 contested by husband. I lost. So I am married to someone who would hurt me if he could find me. I have been in hiding since trial. Children now grown, on their own. Husband bought another house upstate ny about 3 years ago, he had been living in our house that we bought in 1976 which is now paid for up until this summer, visiting the other house on weekends. He now lives upstate and plans on renting our house. Questions:does he have the right to rent with out my permission? I was in a very bad accident in March of 2003, I’ve had 7 operations since, the last was a spinal fusion leaving me out of work. I do collect social security disability. I haven’t asked him for any support or help of any kind, however if he is not going to live in the house, i might. Should I get a restraining order to prevent him from renting? Should I break into my house (he changed the locks in 1996) and change the locks myself and start living there? I need to know what to do because once someone else is in the house it will be imposible. help me please.

Answer: In order to properly answer your question I must know whether you are named on the deeds as a joint tenant or tenant in common with your husband. If you are named on the deeds you are an owner of the property and as such have a right to determine whether the property shall […]

Jun 13, 2018

Question #112: i have been married almost 10 years-4/20/04 if i get a legal seperation can i also stay on the medical insurance- he is a suffolk county police officer- the insurance for the me and the two kids is free no out of pockets expenses for him. also he is a extreme drinker and has some police reports filed on him for abuse to me only -the abuse (all of them0 has been since a month after we married- i have always kept a diary and can list all dates which is quuite often he has ia involved in his behavior and to top this he has many girlfriends and one after two years of coming here breaking in , ramming garage doors and getting my husband loaded work gun and holding james & I hostage and etc. his job finally kept coming here and finally talked me into order of protection -in which she violates here and there- but its much better-my husband still meets her goes to all her courts dates and has a tatto on his arm of her name about 2 years now. i live in fear from him everyday i do not any acess to money and well its pretty horrid-he does not hurt the kids just ingores them alaways did- their ages are 5 ,7 they do not like him and are telling me not to let him in the home and want a new nice dad, well he does make 102,000 a year but he fails to give us money and i mention he goes missing for days, sometim weeks etc with no way to contact him -my mom lives downstairs and thank god for her she doesnt make much with social security but can help sometimes. i have recently had to go to a church for food it was embrassing he keeps his paycheck cash in his wallet there is no money anywhere in accounts and he pay bills sometimes but the house went into foreclosure twice and my friend gave me the monet to save my youngest child will be going to school soon he forbids me to work all thses years, and have to produce receipts when he gives me food money to check to make sure i never get change back and to see and critize what food i bought. my friends help to get me hand me dows for me and kids and even bought them new jackets for the winter when they came here(which is only allowable when james is working) and he does not know we are not allowed to have anyone over to visit- anyway i cried when i got the jackets- our home is falling apart it was a foreclosure when we got it and need lots of work which he does not want to or have any repairs so its not worth much. but he always on vacations himself, out of \bars all of the time, sporting events , rock concerts etc.. and the cable shut off again and phone disconnected again because he so late paying or for lack of not paying them etc.. what would be the best thing to do –also he does want a divorce or seperation -that he is handling everything etc-but he does not. i need help-also he has a son who is 12 from a previous girlfriend he never see him last time maybe 3 years ago me and my kids would get and see him 100x more than james-the child support is 700.00 a month which is garnished from his paycheck. i sure this would have some bearing on me and kids. i live in new york state could you tell me how much i would receive in child support thank you-thank you sorry its so long but i guess you would need to know basic of components thank you please write back

Answer: As part of any court settlement, if you cannot afford health insurance for your children and for yourself, the court will require your husband to provide it, either through his employer if it possible, or through some independent means. If you are unable to work or must tend to the children because they are […]

Jun 13, 2018

Question #111: My husband and I have been married for five years. He has owned the house we are living in for the past 18 years. One year ago he placed my name on the deed and we refinanced the house. I am the sole mortgage holder and money that was borrowed was put into a joint bank account. My husband now wants a divorce. Am I entitled to half the house as well as half the money in the joint account?

Answer: If you are named as one of the owners on the deed as a joint tenant or tenant in common, and you signed the mortgage, in the event of a divorce you should be entitled to one-half of the house plus one-half of the joint account. If you are located in the New York […]

Jun 13, 2018

Question #110: My fiance and I reside in NYS. My name is NOT currently on the deed…he bought the home before we met (though I am paying a portion of the mortgage). We’re getting married next year, for some reason we get a divorce, do I automatically get 1/2 the house because we were married or does my name HAVE to be on the deed? He and I recently had this discussion and I thought according to NYS law that as a married couple 1/2 is yours when it came to divorce…please let me know. He is however planning on adding my name to the deed. We also aren’t planning on divorce but it’s good to know the details prior to walking down the aisle!

Answer: You are absolutely right! It’s important for you to know the details prior to walking down the aisle. It’s also important for you both to consider entering into a prenuptial agreement where you would spell out your exact relationship since you are concerned about the financial ramifications in the event of separation or divorce. […]

Jun 13, 2018

Question #109: I have been married almost 3 years and am now getting a divorce. In terms of Roth IRA contributions and marital vs. separate property: Are all IRA contributions considered marital property regardless of who put the money in the account as long as it is in one of the spouse’s names? My wife’s parents have contributed regularly to her account and I want to see if this money is considered a marital asset. Thank you.

Answer: The nature of the account is not controlling. It is the source of the funds in the account that is important. If the funds were earned by either party during the course of the marriage, the funds would be considered marital property, and generally divided 50-50. In the case that you presented, the funds […]

Jun 13, 2018

Question #108: My mother-in-law was awarded alimony after a divorce in New York over 25 years ago. About 15 years ago her ex stopped gradually stopped making payments. Because she was scared my mother-in-law did nothing about it. She is now about to be laid off from her job. Is she entitled to back alimony and future alimony? Or, was there a limit on the time she could fight for the money she was/is owed? She has never remarried.

Answer: I do not believe there is a time limit in which one can demand past alimony. However she should be prepared to give a good reason why she has not made such demand for 15 years. At some time there is a concept of “latches” in which one loses one’s right to demand payment. […]

Jun 12, 2018

Question #107: MY HUSBAND AND I ARE SEPARATING AFTER 16 YEARS OF MARRIAGE. WE PURCHASED A HOME 11 YEARS AGO, BOTH NAMES ARE ON THE MORTGAGE. HE IS RESPONSIBLE FOR THE MORTGAGE PAYMENTS AND I AM FOR ALL THE UTILITIES. I HAVE BEEN LOOKING INTO BUY A HOME FOR MYSELF SINCE HE DOES NOT WANT TO LEAVE THIS ONE. IF I PURCHASE PROPERTY WILL HE BE ENTITLED TO ANY PORTION OF IT. ALSO, IF I FILE A QUIT CLAIM DEED ON OUR JOINT HOME WILL I BE ENTITLED TO 1/2 THE EQUITY THAT IS IN IT. HE TOLD ME THAT HE WASN’T GIVING ME ANYTHING AND TO JUST GO!! THANK YOU KINDLY FOR YOUR RESPONSE

Answer: You did not indicate which state you are located in, but in a community property state or an equitable distribution state such as New York, you would be entitled to approximately one-half the value of the house and your husband would not have a right to ask you to leave. If you purchased a […]

Jun 12, 2018

Question #106: My husband has walked out on our marriage after two months and has refused any attempt at reconciliation. I was forced to sign a pre-nuptial two days before the wedding or he threatened to call off the ceremony. This pre-nuptial denied me any spousal support and cut me off from any marital property rights. Looking back it now appears that he had no intention of working at the marriage and used the pre-nup as a way to guarantee that he could leave as he chose. This pre-nuptial leaves me destitute as I gave up my home, all furniture and most possessions when my children and I moved in with him. What are my rights since I signed this prenuptial? Could this prenuptial be thrown out on grounds of duress, unconscionability or even fraud?

Answer: I cannot overemphasize the need to consult with legal counsel before you sign any legal document. Your marriage of two months is of very short duration in any case and as such the amount of spousal support would be limited . You do have a right, however, to receive the your share of marital […]

Jun 12, 2018

Question #105: i’ve been married 26 years, have a 16 year son and am looking to get a legal separation; we own a home, a motor home and two cars; he has a pension, 401K, and ira accounts; i would like him to buy me out of the house; also i will take full custody of our son, and it is not necessary for him to support him; will the courts allow this?

Answer: Your situation seems exceptionally suited for mediation, in which you and your spouse will be able to work out whatever resolution best fits both your needs without a judge’s interference. If you’re living in the New York City metropolitan area, please call me at 212-37 0-1660 to discuss the matter had greater length. Leonard […]

Jun 12, 2018

Question #104: I have been married 13 years and have 3 beautiful children. Only 2 of the children are my husbands. I am very miserable and despartely want a divorce. I have priced lawyers and find that getting a divorce is not cheap. I am confident that me and my husband can come to an aggreement and get an uncontested divorce. My questions are 1.can you be legally separated and still live in the same house? 2. If I move out of my house with my 2 young children will I still be entitled to child support? 3.After being legally separated for one year can you still get an uncontested divorce automatically once you file? We live in new york and own a home.

Answer: The answer to all of your questions is “Yes”, if it is done a properly. You are right that legal advice is expensive and I offer an alternative to the adversarial system where instead of each one of the parties having to hire an attorney, although I am an attorney, I remain a neutral […]

LEONARD M.WEINER, ESQ, Ph.D.

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FINANCIAL ISSUES - MARITAL PROPERTY V. SEPARATE PROPERTY