FINANCIAL ISSUES – MARITAL PROPERTY V. SEPARATE PROPERTY – Page 34

Jun 12, 2018

Question #33: My friend has been married 10 months. He has decided after trying marriage counseling that he doesn’t want to continue in this marriage. The problem is, he owns his own business and doesn’t want to lose it to his wife… He has asked his wife to leave and she will not… These problems have been going on since the first day of the marriage. Does he have any recourse? What are the criteria for annulment? Thanks

Answer: I assume from your question that there are no children and none expected. In cases of short term marriages, such as the one you describe, the courts will consider the fact that the parties have only then married for a few months and will allocate the marital property accordingly. There will probably be some […]

Jun 12, 2018

Question #32: I have been separated since Nov. 97. I have the car that we purchased during the marriage. I have paid exactly 1/2 of the payments each month. The remaining furniture left in the house is community property. All of it was purchased during the marriage. However, my husband is not going to allow me to take anything else out of the house. What are my legal rights to this property?

Answer: You state that you have been separated since November, 1997, but fail to state whether this is pursuant to a written Separation Agreement or not. As you probably know, generally, all property acquired during the course of the marriage is marital property (other than property acquired by inheritance, gift etc.) and in a Community […]

Jun 12, 2018

Question #31: I am getting a divorce the month after retirement, after 19 yrs of marriage Is there any way to keep her from getting 1/2 my retirement and if she elects SBP will this be taken from her half of my retainer pay?

Answer: If you are living in a community property or equitable distribution state your spouse will have a right to an equal share of your pension which was earned during the course of your marriage. The court will provide her with 1/2 of your retirement benefits, and any election she makes regarding that some will […]

Jun 12, 2018

Question #30: We own a home, am I entitled to half of the value, of the home..? When I first married her the deed was in her name from a previous marriage; since then we took out a second mortgage, and both names are on the deed. Since I contributed towards the repayment and house hold repairs, can I still claim half the value of the house. The house is in upstate NY… thank you

Answer: Property that was acquired prior to the marriage and kept as separate property after the marriage is considered separate property and not part of the marital estate. In the case you described, it appears that the property was not kept as separate property after the marriage, but half of it was transferred to you […]

Jun 12, 2018

Question #29: She has bills that are in her name, and I have bills that are in my name, and then we have some bills that are in both names. Am I responsible for all the bills, or just the ones that are in my name and in both names.( I know the bills that are in both names, I must contribute half,) live in NY…Also, if we get a separation, can I still have her on my medical insurance?

Answer: Regardless of whose name me bills are in, you should check with the vendor who issued the bill to make sure that you are not a guarantor or co -signatory on the account. You may have signed the original credit application with the vendor. Assuming you are not a guarantor or co-liable on the […]

Jun 12, 2018

Question #28: Last August my husband and I bought a trailer together. I traded in my old mobile home in as the down payment. His son moved in with us in November. During a fight I told him to leave and he refuses. Since he has a child and I have two children can I force him out until the divorce is final and the ruling is made on who will take over the home?

Answer: Unless you have exclusive ownership of the trailer and it is registered in your name, your husband has a right to remain in the trailer. You should first try to convince him to move, but if this proves unsuccessful, you could file for divorce and make an interim request from the court that it […]

Jun 12, 2018

Question #27: My husband and I are separated. He left after I called 911 on him for domestic violence. We have a temporary legal separation agreement in which he pays child support and half the mortgage. He is now finishing a software product that could make a great deal of money. He has been working on it for over a year, and drained everything we ever had to get it to this point. He “owns” 51% of this software program. Do I have any hope of getting half of this product’s income? Or half of the “title” to it? He left us in very poor economic conditions.

Answer: I cannot properly reply to your question because you did not indicate which state you were living in. If you are located in a community property or Equitable distribution state, you should be entitled to an equal share of the software which your spouse is developing. Marital property is generally defined as all property […]

Jun 12, 2018

Question #26: My wife’s father gave her some shares of stock. Before we got married, we put the stock in both our names. I had some money and added it to that account. Now, my wife tells me that in the case of a divorce, I am not entitled to any of her stock because it was a gift from her father. I know it is not an inheritance because her father is not dead! I am in New Mexico. We used that account to live on in times of need. Yet, we never sold one share of the stock her dad had given her. Now that the money I put into that account is extinguished, can my wife still claim that in the case of a divorce that I have no right to the money even though the account is in both our names. The account says She “or” Me (the “or” clause and not the “and” clause). Also, once we started having problems she started writing checks fast and furiously. If we ever do settle, am I entitled to the money she so furiously spent, or am I just entitled to just what is left in the account (if anything is left)?

Answer: You do not provide me with enough information to determine which state will have jurisdiction over your divorce. In general, most states are either community property states or equitable distribution states which in most cases means that the courts will divide the marital property approximately equally between the parties no matter in whose name […]

Jun 12, 2018

Question #25: My husband and I were married in March of 1997, in California. He is currently in the military and we are stationed in Illinois. We are looking at getting a divorce. Mainly the problem is that he has been abusive to me, both mentally and physically. I am not sure what to do at this point and I feel that at this time I’m going to be the one to start the divorce. I have no idea what the laws are in this state and I am looking to move out of the house. I have no job to support the bills that he claims are all mine, which aren’t, they’re joint. The problem is that they are in my name and he is on the accounts as an authorized user. I don’t think that he would be willing to help me out and he doesn’t see that he has done anything wrong. He thinks it’s all my fault. Help! Any information would be helpful at this point .

Answer: California is a “community property” state and as such all marital property (i.e. property earned during the course of the marriage regardless of in whose name it is held) will generally the divided by the courts in equal shares. All liabilities and debts incurred by either party as a result of the marriage and […]

Jun 12, 2018

Question #24: I have been divorced since Dec 94, in Texas. As part of the divorce document my ex-husband agreed to pay me $8000 per year towards furthering my education, due on June 1st of each yr – for 4 yrs. He has not paid me any money and said he won’t. Even though he agreed at the time he wanted to help me go back to college. He says he does not have the money, but he is a professor and makes a good salary, he could get a loan I’m sure. I helped put him through college, BS, MA, PhD, etc. How can I get this money from him? Without having a full-fledged court battle? Any advice would be appreciated.

Answer: You should check your Separation Agreement with regard to the resolution of any dispute which may arise after the divorce papers have been filed. In most cases the court reserves the right to hear all disputes related to be terms of the Separation Agreement, which as you indicate, would include the provision regarding the […]

LEONARD M.WEINER, ESQ, Ph.D.

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FINANCIAL ISSUES - MARITAL PROPERTY V. SEPARATE PROPERTY

Question #31: I am getting a divorce the month after retirement, after 19 yrs of marriage Is there any way to keep her from getting 1/2 my retirement and if she elects SBP will this be taken from her half of my retainer pay?