FINANCIAL ISSUES – MARITAL PROPERTY V. SEPARATE PROPERTY – Page 4

Nov 27, 2018

Question #295:I have been married for 27 years but my husband and I have been separated for about 18 years. My husband lives in the state of NY, retired military and now works for the department of defense. I live in Georgia where my husband and I decided we would settle down after he retired. He went overseas and when he returned he made one excuse after another why he was not able to come home to stay. It was always something with the job. When he retired he got a job on the installation where he worked as a soldier. Then his excuse was he couldn’t find a job in Georgia. I have always worked part time as I raised out daughters who are now 22 and 25 years old and in college. We are now in the process of getting a divorce and we both have attorneys. This is not something I wanted but my husband has made it clear now that he is not committed to this marriage even though he had been helping financially every since he has been gone. He has admitted to being in a relationship and having a 15 year old son. He has offered me $1,600.00 a month for ten years and a life insurance policy. My attorney feels that’s a good offer in that we have been separated for a long time. I don’t think this is a fair offer and I know what the entitlements are in that we have been married for over 10 yrs while he was in the military. What are the laws in NY with marriage and separation? We are not legally separated. Does the time we have been separation affect what I am entitled to through the military?

You should be entitled to approximately half of your husband’s pension earned during the course of the marriage and any assets which were acquired during the marriage, regardless of in whose name the assets are held. The marriage , unless legally separated or divorced, continues regardless of whether you are living together or have been […]

Nov 27, 2018

Question #294:I have been married for approx. 3 months. Prior to the marriage I was a widower and retired with a city pension. My home is in my name and since the marriage I have continued to solely pay for the mortgage and expenses on the home. I made home improvements that were completed and paid for by me solely prior to the wedding. My question in divorce, is she entitled to my pension, part of my home or my investment accounts that are solely in my name and she has hers In her name? The only commingled funds are a checking and savings account with funds from wedding gifts. Her income exceeds my current income without calculating my pension. Thank you.

Any property you owned prior to the marriage and kept in your name is separate property, not marital property, and your spouse would not have any claim to it. Only contributions to your pension made after your marriage are subject to a marital claim. The profits or capital gains made on investments in your investment […]

Nov 27, 2018

Question #293:I looked on your website and could not find my exact situation: My husband and I have been married for 4 years 7 months and we have (2) children together 11 and 4. He has decided to move out of the home where we currently reside in he owns the condo. The condo we reside in as been put on the market as a short sale and is in the process of being sold as it has already been approved. He is now moving to a new apartment alone in 2 weeks and states I can reside in the condo until the short sale comes through. Under my definition isn’t this abandonment? I work FT, and he is a NYPD and retires next year. also works PT as a professor. Our 11 year old attends private school, and the younger one is in a private FT daycare, which I currently pay for. I cannot afford to pay their schooling and other bills in the home and also leave to find a new place. He is not talking about payments and seems to feel that as long as we are still living at the condo that is his contribution. We are all under his medical insurance as well. We do not have any property or assets together the home is under his name and was purchased before we got married. I would like to know what are the steps I need to take to once he moves out in 2 weeks. Thank you.

If your husband has been supporting the family during the course of the marriage and his income is greater than yours, he will be required to provide support for both you and the children. He cannot simply leave you in the apartment and have no further financial obligation to you or the children. He will […]

Nov 27, 2018

Question #291:My husband and I were married in California in May 2010. We bought a house in NY state, and currently reside there together, but are separating. He is moving back to California, and I will remain in our home in New York State. We may decide to get a divorce. Where should we file for that once we’re ready? I’ve noticed that New York State requires a separation agreement first. What legal steps should I be thinking about right now? Thank you!

If you have lived in NYS for over a year you can file I n NYS. You should start removing yourself from all joint accounts and credit cards in which you are liable. Loans etc. as well as collecting all your marital financial documents , bank statements, brokerage statements, 401-k’s etc. Give me a call […]

Nov 27, 2018

Question #290:My wife was married before we were in the state of Florida. That is also where they divorced. As part of the divorce agreement, he kept the house, the pets, and his truck. All she received was her car and a painting of no value. Also as part of the divorce agreement, he was to pay the mortgage, his truck, the past due vet bills and a couple of other bills, and she would pay her car. She has paid her car every month on time and has not missed a payment, putting a good mark on his credit. He on the other hand has lost the truck, the house went into foreclosure, and none of the bills were paid, as all the bill were in both of their names, it has hurt her credit, and we are not able to buy a house. She is selling her car, paying off the balance, and will make a profit on the car. Because his name is still on the loan, he has to sign to agree to sell the car. He said he wants half of the profit in order to agree to the sale. Does he have a right to the profit since the court gave my wife the car, and he has ruined her credit? If we get to cash the check for the profit, do we have to give him half? Is there a way to go after him for failing to do what he agreed to, which has an impact on our life? Thank you very much for any help!

If the Court granted your wife the car (is it in a written Court Order?), the title to the car should have passed to her alone. The fact that her Ex is still liable on the loan does not give him an equity interest in the car. From a practical point of view,however, I would […]

Nov 27, 2018

Question #288:My ex-wife and I divorced in Louisiana in Dec 2011. She remained in the home we jointly mortgaged. We still live in Louisiana and in the divorce decree we were granted an equal and undivided one-half interest in all community property. (blanket statement…non specific) I recently attempted to seek financing for another home but was denied as I am still liable for the previous home. So I asked my ex-wife to refinance the home in her name and I would not seek my interest in the home until she sells it otherwise. Now at the closing bell, she has presented me with a Quitclaim deed which reads: “(me the seller ) who declared that for and in consideration of the price of One And 00/100 Dollars ($1.00), cash in hand paid, receipt of which is hereby acknowledged by Seller, and full acquittance and discharge therefore given, Seller does hereby sell, transfer, assign, quitclaim, remise, release and relinquish unto Purchasers, all of the rights, title and interest which said Seller has or may have in and to the following described property.” If I sign this quitclaim deed, do I relinquish my rights to the divorce decreed equal and undivided one-half interest in all community property, namely my interest in the home?

Do not sign the Deed! You will be giving up your rights to receive any proceeds from the sale of the property. If you wish you may agree upon an amount that you believe you should get from the sale of the house and have your spouse sign a promissory note for that amount plus […]

Nov 27, 2018

Question #287:After 20 years we have agreed to get a divorce in NJ. The Judgment states that we will split our marital assets 50/50, including 401K’s, Pensions, and IRA’s. The pensions are being divided via QDRO and the date for this division was determined to be April 25, 2011 which is the date my wife first filed for divorce. My 401k balance as of that date was $66,000. In November 2011, the balance increased to $88,000. Here is my question: Which “balance” of my 401K will be used when divided it 50-50. The $66k balance as of April 25, 2011 (when my wife filed for divorce and when we agreed our Pensions are to be divided) or the current balance of $88K, the increase of which occurred in November 2011?

I have not read the Judgment or Order of the Court , nor have I seen any additional Separation Agreement or Stipulation you may have entered into which may clarify this issue, but based purely on what you have written in your letter , it seems that just like the date of the pension was […]

Nov 27, 2018

Question #286:My Ex husband wants me to move out of the house and sell it, he wants 50/50 of the money, I don’t want to leave my home. I have a 17 and 12 year old, what are my chances of the courts granting me the rights to keep my home and him sign over a quick deed. Also, because I can’t afford to pay the monthly payments and my ex is not giving me any support, I am having my boyfriend move in with me to help me with things. Is this okay? My kids love him and he is a great guy, my divorce will be final on 6/11/12, I am just waiting my court date right now to discuss assets. I am asking for only child support the house and my car, he can have anything else he wants.

If the house was acquired during the marriage with funds earned during the marriage, the house is marital property and each one should have approximately and 50% interest. Depending on whether other assets and monies are available as marital properly, it’s possible that you could be granted the house and your spouse receives some other […]

Nov 27, 2018

Question #285:My husband owned the home prior to our marriage, it is in his name only. I have contributed money to renovations and monthly mortgage and bills. We have been married 2 years and have a 9 month old baby and I have 2 boys from a prior marriage. Can he force me and the kids to move out or do I have the right to buy him out and keep the children in the home? Thank you.

If the house belonged to your spouse before the marriage and the title was kept in his name only, it is separate property belonging to him and you have no ownership interest in it. If you contributed to the renovations and mortgage, however, you do have a claim to be reimbursed for your expenditures. You […]

Nov 27, 2018

Question #284:My wife and I are a lesbian couple who were married legally in Massachusetts four years ago, (11 years ago we had a ceremony for family and friends in California.) I have always remained a NYC resident she is currently a MA resident but planning a move to CA in a couple of months. She left me for another woman a year ago then came back to me sixth months ago and she has now decided we should divorce. I had a three times as large income for eight years of our relationship and then went onto disability and was covered by her medical insurance. We both moved to NYC then I got Medicare. We split our mutual fund in half when we first separated even though I had invested an extra $20,000 into the house and paid the full mortgage because she was in graduate school in MA and paying rent there and I had a larger salary in NJ still a NYC resident though. We sold the house, I invested the deposit and what we made off of the house $65,000 in a mutual fund which then had a large loss we sold the shares and got out 35,000. So when she first cheated we each took $17,250 out which we each felt was generous to the other. I have had my name only on a rent stabilized apartment in NYC for 27 years. We both lived here since 2010 until she again decided to divorce. She has very wealthy parents who just gave her a $30,000 gift and she has a job and next year will be awarded a fellowship about $20,000. I live on disability $1,100 a month and my Medicare premium, $110 is deducted each moth I also have to legally have another insurance Sterling $300 a month and Cigna prescription drug $100 a month. My rent in $750. She used to pay half the rent, and cable, telephone, utilities and food bills. I now am helped by the generosity of my friends. I am a person with a disability, MS, who lives in poverty. So my question: Can I contest this divorce for infidelity and get any money from her. How much would that cost? Should we file in MA where she now lives, CA where she is moving or in NYC where I have always lived? How much would it cost uncontested and how much would it cost contested? She is insisting I pay half. Can she legally do that? Can I legally insist she pays for the whole divorce? Can we divorce in NY? We are both now here more often. Do we need to appear in court together ever? Is gay marriage any different than straight marriage in these states? Thank you so much for your help. Seriously distraught and stress can make my illness much worse. I have incurred new health costs since this has all begun. ps. We shared a dog who she has left me paying for veterinary, boarding and food costs

If you have been living in NY State for a continuous period of 2 years, you can file in NY. If you are living in the NYC metro area, I strongly recommend you call me at 212-370-1660 to arrange for a meeting For us to discuss mediating your divorce. If you both agree to mediate, […]

LEONARD M.WEINER, ESQ, Ph.D.

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FINANCIAL ISSUES - MARITAL PROPERTY V. SEPARATE PROPERTY