FINANCIAL ISSUES – MARITAL PROPERTY V. SEPARATE PROPERTY – Page 29

Jun 12, 2018

Question #83: My husband and I have been married for 2.5 years and we have a 4 month old daughter. My husband has not worked in a year and I have been paying his child support for another daughter he has as well as the mortgage and all of the bills for some time now. He can work, he just isn’t right now and if the child support isn’t paid his license will be suspended. We live in NYS, is he obligated to continue to pay child support even though he doesn’t have a job right now? Also, his name is not on the deed or mortgage, can I make him leave the house if we are not divorced yet?

Answer: He is obligated to pay the child support until he receives an Order from the Court changing the terms of the the original Order. If he has been trying to find work and has not been able to do so, he can make a motion to the Court to lower his payments. If he […]

Jun 12, 2018

Question #82: I got married in NYC and live upstate in new windsor. Last week I found out that my husband got a hotel room for 2 hours with another women. I even saw the hotel bill. I found out 3 days after the fact and when I conforted him he got mad and vilente, packed up all his stuff and moved in with his mother. Now we have no children but rent and bills are due. what am I to do I want a divorce I will never be disrespected or be with a cheater. What is my first step? Thank you

Answer:You should contact an attorney -mediator in your area who is experienced in divorce matters and see if he can help you mediate your divorce. In the interim, you should file for interim (” pendente lite”) spousal support from the court if your husband refuses to support you. Leonard M. Weiner, Esq.\Divorce Solutions

Jun 12, 2018

Question #81: I live in NY with my wife and child. We have been married for almost 5 yrs. My question is if I have money in my individual account from a sale of real estate, but the money is not mine, does she have a claim to it? The other question, if that money is going towards a purchase of a business even though it’s not my money but the business would be in my name, would she have a claim to the business.

Answer: Only money earned by either party to the marriage during the course of the marriage is “marital property”. If it is money belonging to someone else , and you can substantiate that, it should not be considered marital property and is not subject to division. It would be best if you put such funds […]

Jun 12, 2018

Question #80: I’m married for 4 years; my husband bought a condo just 2 weeks before marriage. My name was added on the title 1,5 years later. During last 4 years our condo got appreciation in about 130,000. We had the joint account opened before we got married and then all the time, all the payments were done from our joint account, including mortgage payments. I’m working and my pay checks go directly to our account. My question is: Can I claim an equity interest in the condo when it will be sold after the divorce?Thank you.

Answer: You do not indicate which state you are located in. In NY, which is an equitable distribution state, you should be entitled to approximately half of the value of the Condo. If you are located in the NYC metro area, please call me at 212-370-1660 to discuss mediating your divorce. The issues involved require […]

Jun 12, 2018

Question #79: I have been divorced since 1996. At that time, my husband and I had just purchased a home and I agreed to give him the house. As part of the settlement, he reimbursed me for a disbursement from my 401k plan which we used as a down payment on the home. I signed a quit claim deed on the home. At that time, I did not know enough about mortgage loans to realize the importance of insisting, as part of the settlement, that my ex refinace the loan in his own name. Now, many years later, the loan still appears on my credit. Now he is behind on his payments and it is really having a huge negative effect on my credit. Can I sue him and force him to refinance in his and his current wife’s name? If he can’t refinance due to his payment history, can I force him to sell the home? (The house has increased in value significantly since our divorce, and I am not seeking any money, just to be taken off the loan) I am also still on a credit card which he is behind on. Refinancing would give him enough cash to pay off the credit card. Is suing a viable option? What happens if the mortgage forecloses or he declares bankruptcy? Thanks for your attention.

Answer: You are unfortunately caught in a serious dilemma. You can try to take him to court to have the judge force him to keep up the payments or have you removed from the mortgage and credit cards. In any case , this is why it is so essential to have a qualified attorney who […]

Jun 12, 2018

Question #78: I’m getting divorce with my husband. We are in the middle of Negotiation right now for property division. My EX-husband is rich and I am not. We been married for 12 years. He owns a company and I work with him for 11 years and I was underpaid. Before we got married, he slapped me with the pre-nup the day before the wedding. I was not properly represented by an attorney who my husband called to represent me. I met this lawyer the day of the signing. Now my EX- just wanted to give me a lump sum of $350,000 , $350,000 share for the house, $1500 alimony for 2 years, $1500 child support. My lawyer think that I should fight because what he is giving me is not enough. But my bills is building up,and my husband will not pay for my lawyer’s fee. I tried to avoid going to court because it’s emotionally draining and I don’t want my son to be affected psychologically. My question is there a possibility that the pre-nup agreement will be thrown out by the judge because I was not properly represented and the pre-nup are all in favor to my EX? How long do you think would this divorce end if I have to go to court? Do you think that I should just accept what he is giving me and go on with my life? In the back of my mind I wanted to fight him in court and let the judge decide what is fair for me and for my son but emotionally I think I cannot handle it and also I am afraid that it might turn out against my favor. Do you think that what he is offering me child support, lump sum and alimony is fair? By the way he makes 100,000 a year.Please, please help, I need your respond a soon as possible, they said this was there last final offer, if we don’t accept it, they will proceed the court.

Answer: It is impossible for me to accurately assess the total value of your marital property from the few items you mention in your letter. To properly ascertain the true net worth of your husband and to determine the full extent of the marital assets, we would need to get a sworn net worth statement […]

Jun 12, 2018

Question #77: Hi, I have been married 1 year and three months. My wife is a student and does not work and make any money. After marriage I bought an apartment with substantial down payment. This was all paid for by the funds I had before marriage. I have been paying for her college education/living expenses from the last two years. If we are separated can she ask for half of what I have?

Answer: You did not mention what state you are in. In NY, and in most other states,if you used separate funds which you earned prior to the marriage and maintained the title to the apartment in your name only, the apartment would be considered separate property and not marital property and would be yours alone. […]

Jun 12, 2018

Question #76:NYC residents: my wife an i got married 8 months ago.i had substantial assets prior to our marriage and i make about 4 times her salary. Prior to our marriage, we entered into a contract for the purchase of a home for which i paid the down-payment. In addition, after we got married, i paid the remainder on the house with the assets i had prior to our marriage. Can my wife claim that she wants half the value of the house, even though it is me who paid for it?

Answer: You did not indicate how the title to the property is held. If it is held in your name only and was paid for with funds you had prior to the marriage, it would be considered separate property and not marital property and thus she would not have any interest in it. Even if […]

Jun 12, 2018

Question #75: My spouse and I are contemplating an amicable divorce in NYS. We have 2 homes with mortgages in both our names. We have agreed for each of us to take a house along with the mortgage responsibilities. How will that work from the legal standpoint. do we have to re-mortgage the properties to remove the joint ownership or does that happen as part of a divorce?

Answer: you will have to consolidate the original mortgage into a second mortgage with only the owning party named in the new mortgage. To do this, you will need the cooperation of the mortgage Co. You will have to re-apply individually to the mortgage Co and each party will have to qualify alone for the […]

Jun 12, 2018

Question #74:I live in Upstate NY. I am getting a divorce after 5 yrs. of marriage. We have no children together. Is my wife entitled to 1/2 of the house that we live in even though I owned it before we were married and her name is not on the mortgage ? We have agreed to some terms to legally separate but she will not sign a paper written by my lawyer unless she can be present when I meet with them. My lawyer says that it is a conflict of interest to represent both parties even if we agree on terms.

Answer:If you owned the property prior to the marriage and kept it in your name only the property is separate property, not marital property and she is not entitled to one half. If you used marital funds (i.e. funds earned during the course of the marriage) to pay the mortgage and upkeep, she may have […]

LEONARD M.WEINER, ESQ, Ph.D.

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FINANCIAL ISSUES - MARITAL PROPERTY V. SEPARATE PROPERTY