FINANCIAL ISSUES – MARITAL PROPERTY V. SEPARATE PROPERTY – Page 8

Nov 27, 2018

Question #252:Divorcing in the state of WV. My husband moved out September 27, 2011; I filed for divorce in March 2011; he is living with a woman since January 2011; I have been living in our home and he wants the house as well. His name is the only one on the deed at court house; however my name is on the mortgage and deed of trust. Can he remove me from my home? Who has rights to the house?

West Virginia is an equitable distribution state. In the absence of a valid agreement, the court shall presume that all marital property is to be divided equally between the parties, but may alter this distribution, after a consideration of the following: • The extent to which each party has contributed to the acquisition, preservation and […]

Nov 27, 2018

Question #251:My wife and I are in the process of getting divorced in NY after 16 years of marriage. There were infidelities involved with her but she just says she was unhappy. It really doesn’t matter anymore but the horror is just beginning. WE have 3 beautiful children all under 13 and I just want to be able to start a new life for them and myself. My question is whether premarital stocks that appreciated can become marital with the following description of active appreciation. My wife has long been a registered trader and broker and has managed her investment account since we have been married. She had stock gifted to her before we were married. She managed this account that included a substantial amount of a stock that has split and paid dividends. As a stay at home trader she actively bought and accumulated shares of the stock over the years from the dividends and interest. Unlike a mutual fund though it was not automatic and she actively bought and placed the trades. The stock was never in my name but dividends and interest was used for living expenses at times of need. The entire account was managedby her and was considered our retirement and nest egg. Since I earned a living enough to support our family she worked as a satellite office in the house for many years up until late as the market conditions deteriorated. She now manages the account via Etrade but it is still all in her name. The account is still under her name and contains many other stocks accumulated during our marriage. In addition in past years commissions were paid and deposited into this account and the monies were utilized to purchase more stocks and other products within the account. The question now becomes whether the active participation of the entire account including the trades and purchases of more stock via dividends and the depositing of the earned income into the accountcreates it as a marital asset rather than separate property. The debate is whether the appreciation of the premarital stock amount is eligible for equitable distribution and if the entire account would be as well, due to the comingling of earned income to the account. I am also questioning if I need to look at this as one total account itself or as each individual asset for distribution. All of my earned income was utilized for everyday living expenses and any joint monies has been depleted. Savings was also minimal as we were overextended and never thought to put money away in both our names since we did treat the investment account as our own. Now with divorce imminent, I am fighting for a new life and a new start. But to walk away with nothing and she gets to keep what she had over all the years just doesn’t sit right. Any input would be greatly appreciated .

You raise an interesting question that involves a detailed analysis of the stock investments that your wife has made over the course of your marriage and the amount of time she has devoted to overseeing her portfolio. To the extent that she has extensive professional training and experience in investments, and devoted her working time […]

Nov 27, 2018

Question #250:If both spouses made a good income over the marriage (15 years) and the wife paid for all of the mortgage and real estate and tax payments in excess of individual withholding, can she get any credit for that portion of the husband’s income that was reduced for tax purposes because of the mortgage and real estate property deductions as well as increased on an after-tax basis because she paid that portion of his taxable income in excess of his withholdings by check to the government?

Generally, any money earned by either party during the marriage is considered marital property and thus the moneyyou earned which you used to pay the mortgage was marital property , not separate property , and any benefit or savings resulting from the mortgage payment will not be credited to you. Leonard M. Weiner, Esq./Divorce Solutions

Nov 27, 2018

Question #249:I am from the West Indies and I married my wife 13 years ago at City Hall in order for her to get her residency (green card) in New York City. Before we got married I had properties that belonged to me and is still in my name alone. We both tried to see if the marriage would work but it did not. After a while she refuses to have sex with me every time I would initiate having sex she would push me away. After living together for 5 years I moved out because it was getting to my head and I started feeling less of a man. There are no children involved. I tried to talk to her about a divorce on the grounds of no sex or abandonment and she refused to sign. It is now 8 years since we have separated. Please let me know if I will have to share my properties with her seeing that I had them before we were married and how hard would it before me to get my divorce.

If you owned the properties prior to the marriage and kept the properties in your name, the properties would be separate property and not marital property and your wife would not be entitled to any portion of the properties. If you contributed monies earned during the marriage to pay the mortgages on such properties or […]

Nov 27, 2018

Question #247:I have a question. My wife decided after 1 year and 10 months that she no longer wants to be with me. I tried going to counseling with her and she was only going for me. We finally went our separate ways. I live in the house that I bought, and bought before we were married. She is now living in a house rented, with 2 other males. She has not signed the separation agreement, and refuses to call my lawyer back. She thinks she is entitled to half my savings. Savings is in my name not hers at all. We filed 2 tax returns together and wedding money that was in the account, (all money was put into my savings account, nor a joint account) roughly 20k, this money was spent on 4 vacations and furnishings for the home which we split up. However what is left in my savings is the same amount the day BEFORE we got married. Is she entitled to half my savings even know that 20k was spent?

Any money earned or acquired prior to the marriage and kept in a separate account is separate property and not marital property. By comingling money you received as gifts at your wedding with your individual monies you have “ muddied the waters” somewhat but I believe that if you can accurately account for the monies […]

Nov 27, 2018

Question #244:Have been married for 23 years, have three daughters 22, still living at home, 20 at college, 16 at home. My husband has e-mailed me to tell me he is moving out, he needs to have a life, has contacted a lawyer and wants to be fair . He has been having affairs with many women these past 4 years. I work a part time job in upstate NY.He works full time in NJ; has his own electrical business in upstate NY and also bartends at a catering hall. Slowly he has been moving things from the house that were purchased in the marriage, flat bed trailer, wine making supplies(very expensive items),snow blower etc. Also he has started to turn in stock that was bonuses from his job in NJ and took a loan from his 401K . My questions are, can I still have claim on these items as 50/50 property , if he turned in stock and spent on himself do I have claim? His electrical business make good money but he gets paid in cash or does not claim it on taxes how do I prove this, also with the bartending mostly paid under the table and claims no tips. How do I prove what he makes?

Any marital assets that were taken from the home in anticipation of the separation or divorce Must be accounted for in any divorce or separation proceeding. Keep a record of these items And any receipt you have regarding their value for future reference. Your husband’s retirement account, to the extent it was earned during the […]

Nov 27, 2018

Question #243:My wife of 11 years and I have a 27-year old daughters and we live in NY. She makes considerably more than I do. I lost my restaurant job in Oct. and she gave me an ultimatum since my career in the arts and the fact that I can’t land a steady writing job has not taken off. She gave me six-months to find a job that pays at least $45,000/year or I have to leave. The six month mark is next month and I haven’t found anything yet. I’m sure if I move out the next step would be divorce. We are putting our co-op on the market next month. Would I be entitled to a percentage of that sale? If I don’t get a job and my unemployment runs out, ironically I would have to rely on that for child support payments. And how much child support would I have to pay? Forgive my naiveté and please keep this anonymous. Thanks so much.

Any property you or your wife own regardless of in whose name the property is held, if it was acquired in the course of the marriage with funds earned during the marriage, the property will be considered marital property, and generally the courts will divided it in half. If the funds which you used to […]

Nov 27, 2018

Question #242:My wife and I have been separated for 15 months and we met with a court referee this week. She suggested to my ex that the house be put on the market as soon as possible so we get the maximum value of the asset. What can I do if she does not put the house on the market ? Do I have any recourse ? She is going to wait till the last minute for she does not want her life to change at all (except for me)….Can any penalties be imposed upon her like less distribution ??

In order to properly respond I will have to see your Separation Agreement and get more details. Please call me at 212-370-1660 on Monday to arrange for a meeting to discuss the issues and review the documents you entered into. Leonard Weiner, Esq./ Divorce Solutions

Nov 27, 2018

Question #241:My husband I live in New York State, Rochester area, we got married on 2003. He left me and moved in with someone else in 2007. We had talked about reconciliation since about 2 months after he left. Our sexual relationship has never stopped and I’m not sure if that changes anything? We have not been legally separated and claimed joint taxes for 2007 and separate for 2008, we have not decided how to file for this year yet. I love him and don’t want to divorce but he says now that reconciliation is not possible, and I want him to be happy so I have no choice for the divorce, Do I??. He recently told me that he filed for divorce citing cruel treatment (or something like that). My question is how do I have the reason for divorce changed? He was having an affair and abandoned me and then he files that I was cruel!!! He said that was the best choice out of what they gave him. I am currently unemployed and have no money too file my own papers. I have tried to find the free forms he says that he used, but he says he doesn’t know where he got them from. The girl he left me for is a paralegal and I think she is the one helping him, though he says they hardly talk any more. He got his own apartment last year and is working full time. He helps me when I need it and I help him with what I can. He says that he will always be there for me if I need anything but how do I protect myself? We have no children and no property. We do have life insurance for him in which I am the beneficiary for and I pay the monthly bill for it, he has told me to keep it. He does help me pay bills on occasion if I tell him I haven’t been able to pay something. I’m not sure what to do and what the filing terms he used means for me in the future. Should I ask for alimony in the event he’s not planning to continue to help me like he says? How do I do this so that we can continue to be friends like we want? We both say that we love each other and will always be there, but if he gets back together with the girl I know that she’ll make him stop helping me and talking to me, that’s why the broke up because of his continued contact with me, at least that’s what he says. I am not sure what to believe any more and don’t want to end up worse than I am now. Any help would be greatly appreciated!

In order for your husband to get a divorce in the State of New York he is going to have to have grounds. The grounds he chose was apparently cruel and inhuman treatment. He will have to provide some form of testimony or evidence to support his contention that in fact there was cruel and […]

Nov 27, 2018

Question #240:My mother passed away in 1999 and my father remarried about 3 years ago..we all live in NYC. My father has a mitchell lama Co-op apartment that has had since 1986. Its in his name as are all the bills. He put his wifes name on the affidavit just in case something were to happen to him. I think you see where imgoin with this..if they were to divorce, and i hope they do, would she have claim to the apartment.. they are both retired and he makes slightly more than she does.. if she had to she would not be able to afford the expenses of that apartment on her own. he would be able to and was doing so prior to her coming into the picture. please help .. thank you

I do not understand exactly what you mean by saying “his wife’s name is on the affidavit”. Is she registered with the co-op board as an owner of the co-op shares? Title to the co-op will depend on whose name is recorded as the owner. If she has been added as a co- owner of […]

LEONARD M.WEINER, ESQ, Ph.D.

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FINANCIAL ISSUES - MARITAL PROPERTY V. SEPARATE PROPERTY