MARITAL PROPERTY

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 #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 #232:My husband and I were married in PR on a cruise ship. I have been with him since 2003 married 3 years now. I have left my job to help him raise his kids 14 and 12. He asked me and I agreed as I was let go from my job a year ago. I have worked part time to help with the finances but I was making 55k+ a year. He is in a custody battle with his ex now for the kids. I have 3+ years of journals of incidents that has happened with his ex and kids that it has ruined our marriage. I always bought the extras in this house…Christmas, B-days for his kids, clothes, last minute parties I put together, been there to pick up his kids from school, emergencies, homework time….etc even when his ex did not have no one to do I was there. There has been a time or two that she has tried to physically attack me since this custody battle has been going on. I know we have investments in our names and such, but I want to know if I can get some kind of alimony or relocation help or something to help me get back on my feet. I also had to wait 3 years for his ex to get off the insurance for him to out me on his insurance as it was indicated on his divorce papers with his ex. He is the bread winner in this house (VP for JPMorgan for 27+ years) and I supported everyone emotionally and such. We have no kids together. I just want to know where I stand to get out of this marriage b/c I given up a career as an accountant to be home for him and his kids!

If he has been supporting you during the marriage he will have to provide you with some spousal support to allow you to get on your feet and retrain or find employment in your field. Whatever assets were acquired during the marriage, regardless of in whose name the assets are held, is marital property and […]

Nov 27, 2018

Question #231:Hi, I’m ending a 19 year marriage in the state of New York. My mother-in-law bought and put the house we’ve lived in for last seven years (with three children) in her name. Is the house still considered marital property? It turns out my husband and his family have made sure that “nothing” is in his name, even though I know that its only that way on paper. We lived in a million dollar home, drove expensive cars and lived very comfortably, but on “paper” my husband has nothing. Now I’m with two teenagers in apartment, and he has the big house, expensive cars, and everything we own. What are my options? Thank You

If your mother in law bought the house with her money and not your husband’s, and if the house was held in her name, even if you lived in it, it is her house, not yours or your husband’s and you have no claim to it. If you can prove that the funds for the […]

Nov 27, 2018

Question #230:As a stay-at-home mom and full-time homemaker living in a community property state, who for the last 20 years has belonged to a stock club. The money for investing came from gifts from my husband and, earlier, in life, from parents. Is my husband entitled to any of the shares?

If the stock account is in your name only, those stocks that were purchased from gifts provided to you by your parents should remain separate property. The stocks that were purchased with funds that you received from your husband during the marriage, even if you describe them as “gifts”, are most likely marital property and […]

Nov 27, 2018

Question #224:If I am seeking a divorce, and we have two houses. One we purchased when we were married, and the other was given to me in my mother’s will, in 2004. Can I keep my mother’s house and he keep the one we owned together. He hasn’t paid bills in the other house nor my mother’s house. He only pays the gas and insurance and wear and tear on the car. He uses the car for work and sometimes to take his mother shopping and etc. plus sometimes takes me shoppng, but many times I go with my shopping cart. He has two cars also, and has bank accounts with his mother as the beneficiary. I have checking accounts to pay bills, and am currently unemployed since last May. I have a tenant which helps me pay the bills in my mother’s house. He starting paying the bills which is only the electric bill in the other house, plus the phone bill, as I can’t pay everything like I used to. I do photography for very little, as it pays some of the groceries. He is threatening me that he is entitled to everything. We live in my mother’s house because the other house caught fire in October, and will be fixed real soon. Is he entitled to everything including my parents home? Alll I am asking is my parent’s home as my mother wanted me to have it, and I was raised there. He is threatening to take me off the medical insurance from work. I am diabetic and need medication to surviive. When I was working I had to pay extra money for him to get secondary medical. Any help you can give I appreciate it.

In order to properly answer your question I will have to see the Deed to both properties to determine who the legal owners(s) is (are). If you received your mother’s house as an inheritance and kept it in your name only, it is not marital property and your spouse has no ownership interest in it. […]

Oct 31, 2018

Question #201:I have been divorced for over 7 years and have not re-married. I still own stock with my ex-wifes name listed as one of the owners. My question is how do I have her name removed from ownership therefore leaving me as an Individual owner. Presently, I do not know where my ex-wife lives or even if she has remarried. Any help would be greatly appreciated.

Once again, unfortunately, we see the results of trying to take care of the divorce by yourself or the results of poor, legal counsel. The matter of the stock ownership should have been taken cared of prior to the divorce and discussed in the separation agreement. If you have a Separation Agreement, and If it […]

Oct 31, 2018

Question #196:My husband and I got married in 2004 in Lake Tahoe, California. He was a resident of California, I was a resident of NYC. Yes, it was a spur of the moment thing after 5 years of dating. We never lived with one another. I maintained my living status here and about 14 months of marriage this way (yes I know) when I was to move there, everything went to hell and we have now been seperated since November 2005, since well I found out that after one week of seperation he had hooked up with someone else. (eeesh) I have never received any papers of any form asking me for a divorce. Am I still married? Does he need to inform me that we are divorced if he filed papers? And if papers are filed, would I receive them by being served or in the mail? See, I would not be surprized if he somehow forged my information to obtain a divorce but I am just concerned if I am indeed divorce because my financial situation will be changing right quick and want to know if he has any rights to my money, if in fact we arent divorce. My friends said I should sue him for what he is worth-but I feel its too late And just want to be rid of him. Anyhow-the question I guess is…Can he divorce me without me knowing? And how would I find out if he did. Or can he go to Mexico and divorce me?

Until you actually get a formal separation or divorce you are still legally married , and, generally, any monies earned or property acquired during the course of your marriage is marital property, other than through inheritance if kept separate, both under New York or California law , and each party will generally have a 50 […]

LEONARD M.WEINER, ESQ, Ph.D.

Divorcesolutions.com

Divorce Solutions

Question #230:As a stay-at-home mom and full-time homemaker living in a community property state, who for the last 20 years has belonged to a stock club. The money for investing came from gifts from my husband and, earlier, in life, from parents. Is my husband entitled to any of the shares?