FINANCIAL ISSUES – MARITAL PROPERTY V. SEPARATE PROPERTY – Page 36

Jun 12, 2018

Question #13: I am curious about what the typical division of student debt is upon divorce. As an example, I have a friend who’s husband will soon be finishing medical school and residency. She is seeking a divorce. Their total debt is on the order of $250,000, the vast majority of which is student debt. She has been working to pay family bills during the last two years he has been in school; prior to that, she was not working. She has also borrowed from her family to support them. They live in California. They have one child and no significant assets. Some of the money borrowed was for the direct costs of his education, and some of it was to support the family while he was in school. What can she expect in terms of division of this debt when they are divorced? Also, if he assumes the debt in the divorce settlement, are there steps she can take to remove herself from liability for the debts in case he defaults? Thanks

Answer: You do not indicate when these debts were incurred. If they were incurred during the course of the marriage, they would be marital debts to be paid from marital assets. Assuming the medical license and practice was acquired during the course of the marriage it would also be a marital asset, and approximately 1/2 […]

Jun 12, 2018

Question #12: My wife and I gifted each of our three adult children a sum of money. One of the children has been served recently with divorce papers by his wife. His gift from his mother and I had been is invested in mutual funds. The account ,as I understand it ,is a joint tenant type of account with his wife’s name on it as well as his own. My question is :can his wife receive, in the settlement, a part of that gift which we gave our son during the marriage? So. Dakota. is the state of residency. Thank you .

Answer: His wife would have a claim to 1/2 of the value of the account if she could show that the gift was to both of them. The fact that the account is not just in your son’s name but in both names is supportive of the position that it was indeed a gift to […]

Jun 12, 2018

Question #11: I believe a divorce is imminent. I live in New Jersey. I have worked very hard since the day I am married. I earn a salary that varies from year to year. I earn from 25% less to 25% more than him. I don’t think it’s fair that now that I’m 56 and ready to retire and have a job that’s not a sure thing, I will probably get nothing. I worked until the day I had my first baby to pay for his flight lessons. Does this make a difference. He will retire in five years with a great pension. I have a 40lK worth about a third of what his is.

Answer: Ay assets acquired during the course of the marriage by either party is considered marital assets regardless of in whose name the assets are held, unless the assets are from an inheritance and kept separate from the joint assets. Therefore, any portion of the 401K accounts or other pension accounts which are the result […]

Jun 12, 2018

Question #10: I live in NYS and have been married for almost 8 years. We have no children. My husband and I went to marriage counseling but after a few visits my husband said he does not think that the marriage will work. We have stopped therapy and now occupy the same house in separate rooms. We always shared expenses for the house even though my husband has always earned more money. If we seek divorce, will he be able to walk away from the marriage without compensating me financially? I don’t expect to receive alimony and I want to stay in the house we bought together. Is he financially responsible towards me in any way so that I can afford to stay in my home? Thank You.

Answer: With regard to the individual contributions made by each of you to the purchase and upkeep of the home, you both appear to have an equal interest in the home which, if purchased with Marital Property (see definition in earlier email answer) belongs equally to you both. With regard to spousal maintenance, if he […]

Jun 12, 2018

Question #9: I am not married, however, my boyfriend and I own a house together. We are both on the mortgage and on the title of the house. If we were to break up, and we wanted to take my name off the mortgage etc.., and replace my name with his parents, what exactly would this involve? Would we have to completely re-mortgage, or is there a simpler way ?

Answer: In order to properly answer your question I must really examine the mortgage and title documents. Assuming the information you have provided is accurate, and assuming there is an acceleration clause in your mortgage in the event you transfer title, he would have to get a new mortgage with the new title holders executing […]

Jun 12, 2018

Question #8: My best friend lives in TN. Her husband has committed adultery and wants a divorce. My friends lawyer told her that adultery was no big deal in TN and that basically he would get half of her horse farm because that is the way it is done in TN. I told her to find herself another lawyer, that this one she went to is full of shit. What do you think? Thanks.

Answer: In order to properly advise your best friend I must have more factual information. It is generally true, that the grounds for divorce are no longer considered when providing the marital assets unless some especially egregious facts are present and adultery is a ground for divorce in most states. However, in order for her […]

Jun 12, 2018

Question #7: My husband and I live in NY, and have been married for 5 1/2 years. We married 2 years after I divorced my first husband. There is no abuse or adultery involved, we simply have no reason to stay married. We have nothing in common, nothing to talk about and have not had marital relations since Jan of 1998. We also occupy separate bedrooms. I want to institute a legal separation or divorce, but he simply doesn’t want to discuss it and just ignores the entire situation. Our conversations are limited to “good morning” and “good night” most days. In NY do I have other than to move to another state for a year and file for a no fault divorce outside of NY jurisdiction? We have a mortgage together, if I choose to move can I be held liable for mortgage payments even if I don’t want any part of the value of the house? I also have a large inheritance from my mom which is in trust until my 40th birthday, can this inheritance be protected? We also work for the same company, can he trash me in my workplace to my coworkers and managers at will? I have no desire to harm him in any way, I want nothing from him. I just feel as if I’ve been sentenced to live imprisonment, and I need to get out. The longer we are together, the more resentment I feel towards him and I want that to be over.

Answer: New York requires “grounds” for divorce (see some previous answers in this column defining the “grounds” in New York State). One of those grounds, however, is “abandonment” which includes “constructive abandonment”, which means the refusal of one spouse to have sexual relations with the other, although the other spouse has requested such relations. If […]

Jun 12, 2018

Question #6: We reside in Upstate NY and think we can separate amicably. We have one 14 y/o daughter. But…neither of us want to leave the house. I know with $30M income, I could not afford to live on my own.. Can you be legally separated and reside in the same house? We have been married 28 years. Also, he feels he owes me nothing (alimony). I have worked since I was 17. We want joint custody of our daughter, but my question, I want the house…what are my chances???? Thanks.

Answer: You did not mention whether your husband was working and what his income is. An essential part of every separation agreement deals with the question of spousal support. If your husband is earning considerably more than you, you will be entitled to some spousal support for a period of time. Part of that support […]

Jun 12, 2018

Question #5: I have been married for six months and now I want to divorce. I own 2 New York City yellow cab medallions, which I bought four years ago. Could my wife ask for part of those medallions? Is there any other way than divorce?

Answer: In order to get a divorce in New York you must have ” grounds” (See earlier answers discussing what constitutes “grounds”.) Assuming that you have legal “grounds” to divorce, the court would normally consider the duration of the marriage in determining the division of marital assets. If you acquired these medallions prior to your […]

Jun 12, 2018

Question #4: Would assets acquired after being granted a legal separation still be considered jointly held marital assets?

Answer: One of the provisions included in the Separation Agreement should expressly exclude any future earnings or assets acquired after the date of the Separation Agreement from “marital” assets. Leonard M. Weiner, Esq. Divorce Solutions

LEONARD M.WEINER, ESQ, Ph.D.

Divorcesolutions.com

Divorce Solutions

FINANCIAL ISSUES - MARITAL PROPERTY V. SEPARATE PROPERTY

Question #5: I have been married for six months and now I want to divorce. I own 2 New York City yellow cab medallions, which I bought four years ago. Could my wife ask for part of those medallions? Is there any other way than divorce?

Question #4: Would assets acquired after being granted a legal separation still be considered jointly held marital assets?