FINANCIAL ISSUES – MARITAL PROPERTY V. SEPARATE PROPERTY – Page 31

Jun 12, 2018

Question #63: After 20 yrs of marriage and 2 children (ages 12 & 7) my husband wants a divorce. I have not worked outside the home since my 12 yr old was born. I know NYS allows 25% of my husband’s income for child support, but I would like to know if I can collect money in addition to that. Is it reasonable to expect my husband to pay the mortgage while my children and I live in the house and if so, is this usually only done until the children are 18? I also would like to receive part of his profit sharing account, stock option account and retirement account and can I receive part of the future value that will go into these accounts? Can I obtain full ownership of the house and give up my right to the retirement plan? I have no college degree and worked while he completed college and went on to get his Master Degree. Thank you.

Answer: You should receive a portion of your husband’s retirement account which was earned during the course of the marriage and some spousal support as well as child support if you will be the residential parent. The other issues regarding the house, the mortgage, and trading one interest for another will depend on either your […]

Jun 12, 2018

Question #62: My state of residence is NY. After many years of living apart have finally taken the steps and have a legal separation with the goal of the divorce being finalized at the end of the year. My question is, I would like to purchase a new home joint with another person. Since I am only in the separation stage my partner fears that if something should happen to me, my “almost ex-spouse” would have claims on this home. Is this true? If so what other options are there besides waiting until the divorce is final.Thank you

Answer: If you have a legal separation you should review the terms of the separation carefully. Generally, the acquisition of property by each party is expressly discussed and usually provides that the other party will not have claim to such property. Did you have an attorney prepare the separation agreement? Consult him/her to be sure. […]

Jun 12, 2018

Question #61: After one year of marriage, my wife committed adultery and wants a divorce. We have no children. We own a house together that has no equity in it as I used a VA loan with no-money down. I understand that she has no sufficient grounds for divorce.We are selling the house, and as it turns out it will be a fairly hefty profit. Since I believe that her contribution to the marriage was minimal, being that she only paid her half of the mortgage, and I paid all other bills, and substantial home improvement costs, is there any advantage to delaying the separation agreement until after the sale of the house. Certainly she’s entitled to some money, but I really don’t want to give her half of the profit. It doesn’t seem very equitable to me. What should I do?

Answer: You did not indicate what state you were located in. In New York,which is an “equitable distribution” state, assuming you acquired the house after your marriage, your spouse would be entitled to half the net profits from the sale. You may, however, be entitled to compensation for your separate contribution of home improvement costs […]

Jun 12, 2018

Question #60: MY WIFE AND I SEPARATED A YEAR AGO,HAVE 4 CHILDREN RANGING IN AGE FROM 9 TO 17,AND HAVE BOTH NAMES ON THE DEED TO OUR HOME VALUED AT $500,000.I EARN APPROXIMATELY $230,00/YEAR,MY WIFE WORKS PART TIME EARNING $15,000/YEAR AS A TEACHING ASSISTANT. SHE GAVE UP HER CAREER TO TAKE CARE OF THE CHILDREN 18 YEARS AGO. MY QUESTIONS ARE;1. HOW WILL CHILD SUPPORT BE DETERMINED,WILL HER SALARY ENTER INTO IT.2. AM I OBLIGATED TO PROVIDE SPOUSAL SUPPORT,IF SO INDEFINETLY OR UNTIL SHE CAN BECOME FINANCIALLY INDEPENDENT.MOST IMPORTANTLY THE DISPOSITION OF THE HOUSE:IS THE MAINTENANCE AND SUPPORT OF THE HOUSE SEPARATE FROM CHILD OR SPOUSAL SUPPORT.CAN I FORCE HER TO SELL IT,OR AM I OBLIGATED TO MAINTAIN HER IN THE HOME AS CUSTODIAL PARENT UNTIL MY CHILDREN REACH LEGAL AGE.

Answer: You did not indicate which state you are located in. In New York, child support will be determined by a complex formula taking into consideration the income of both parents.The catch is that although both incomes are taken into consideration, the non-residential parent has to pay his/her share to the residential parent. Spousal support […]

Jun 12, 2018

Question #59: I’ve been married for 8 yrs and now I want to file for divorce and move out of state. I haven’t really worked much in the years we have been married; there are no kids involved and we rent our home. He makes over 100 thousand a year but tells me I will leave with what I came in to the marriage with, is this a true statement? I’m very much alone in this and I know I will need some sort of support for a short period of time. Also can he cut me out of his medical insurance once there is a legal separation? Help!! I’m really lost. Thank you.

Answer: You are entitled to approximately one half of everything you both have acquired during the course of the marriage, no matter in whose name the money, shares, accounts, or real property is in. If you do not have medical insurance, he will have to cover you and provide you with spousal support until you […]

Jun 12, 2018

Question #58: Question: Re: California Community property laws. I purchased two homes prior to marriage. & also owned one business approx 15 years prior to marriage. All titles have remained in my name & during the past six years of marriage. NO mortgage payments, taxes, repairs, or even utilities have been made by my spouse. If divorce were to take place would these properties be considered my separate properties?

Answer: Under the facts you present the property is clearly separate property and not Community Property but your wife may have a claim to be reimbursed for half of your earnings that went into paying the mortgage, etc. on the homes and half of the increase in the value of the business since the date […]

Jun 12, 2018

Question #57: What recourse do I have if after my spouse and I arrive at a settlement, he reneges?

Answer: You should not enter into a settlement agreement without proper advice and counsel. I recommend that you seek an attorney-mediator who is qualified to mediate between you and your spouse and who will draw up the necessary separation agreement in such legal form that it will legally satisfy the court having jurisdiction over your […]

Jun 12, 2018

Question #56: My husband has a piece of real estate which I have asked them to deed over to me to secure the payment of any settlement arrangement, but he has refused. What can I do?

Answer: You do not need your husband to deed the property to you to secure payment. You have asked them to transfer the property to you when in fact you really need a security interest in the property, not ownership of the property. What you should have requested from him is a first mortgage on […]

Jun 12, 2018

Question #55: I do not have the financial resources to conduct discovery to find my husband’s hidden assets; how do I discover these hidden assets without extensive financial expenses?

Answer: Under the laws of the State of New York and many other jurisdictions a party to a divorce may require the other party to execute a sworn in net-worst statement in which the executing party swears under oath that he has declared all of his assets. The terms of any settlement shall be conditioned […]

Jun 12, 2018

Question #54: Can divorce settlements to be paid on a monthly basis for a period of time?

Answer: The divorce settlements that are arrived at by the parties themselves through the mediation process can generally be paid over a period of time so long as neither the parties themselves nor any of the children will become dependent upon the state for support. The terms of the settlement must provide for the realistic […]

LEONARD M.WEINER, ESQ, Ph.D.

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FINANCIAL ISSUES - MARITAL PROPERTY V. SEPARATE PROPERTY

Question #57: What recourse do I have if after my spouse and I arrive at a settlement, he reneges?

Question #56: My husband has a piece of real estate which I have asked them to deed over to me to secure the payment of any settlement arrangement, but he has refused. What can I do?

Question #55: I do not have the financial resources to conduct discovery to find my husband’s hidden assets; how do I discover these hidden assets without extensive financial expenses?

Question #54: Can divorce settlements to be paid on a monthly basis for a period of time?