MARITAL PROPERTY

Oct 31, 2018

Question #182:My parents are considering a divorce, but an attorney recommended a legal separation. They are in their early seventies and have no intent to re-marry. My father thinks he can leave her with absolutely nothing after thirty-five years of marriage. He also wants to leave the country and go back to Italy his native country. What rights as a legal U.S. resident does my mother have and what can she do to cover her back in this soon to be stressful situation? Any information would be greatly appreciated!

Any property acquired during the course of the marriage from funds earned during the marriage regardless of in whose name the property is held is considered marital property and each spouse would have approximately a one half interest upon divorce depending on the particular laws of the state she is a resident in. That applies […]

Oct 31, 2018

Question #181:ok 3 years ago i sold my house to buy land and move to new york state with my husband of 3 years – we also purchased a fishing lodge we have been running for 3 years – i had to take a full time job out of the home because i had a better ability to make a lot more income than him. he was suppose to take care of the lodge – his contributions were minimal, however he had no issues in spending all the money i was making – for the last couple of months he has been acting very funny – i thought it was clinical depression – he denied there was someone else – however, the dummy went around telling people he was unhappy and was screwing a 24 year old – one weekend when i was out of town he even went as far as to take her to two of our friends house – i got a call and came home a day early to talk to everyone that had seen, met or heard anything about her – when i confronted him on his cell phone he still insanely denied my accusations however he was with her and when he got her back in the truck to come home and handle me his cell phone accidentally called me back and i was privy to a conversation between him and his lover about me – that night and since then (it has only be a few days) he has been shacked up with her at another lodge in our neighborhood four blocks down the road – i even confronted them myself with disbelieve the first time i saw them out there together – this was within 24 hours of me coming home to find out what was going on!! Here is my question – i have worked my fingers to the bone – he has taken full advantage of me and my finances and has obviously run off with this young girl – i aggressively want to protect what i have worked to hard for – does the state of new york take into consideration peoples actions when it come to splitting the marital assets?????

Property acquired during the course of the marriage with money earned during the marriage is marital property, regardless of how the title to the property is held. If the house you sold was your separate property and you purchased the lodge with that money and kept the lodge in your name only it would be […]

Oct 31, 2018

Question #178:I am struggling to find a way to be sure that my 83 year old father’s new wife doesn’t original artwork that was a gift to me and that I gave to my mother, who loved the work, and I did not have appropriate wall space. There was no family information on who received what after my mother’s death. After her death (Indiana) my then 81 year old father moved into an Independent Living complex, which my brother and I set up for him. I hung the artwork gifted to me on the walls. Very shortly after my mother died, my 81 year old father began living with a woman. She came to his complex and seeing the art wanted him to bring it with him to New York. He asked me if that was all right, and I said yes, thinking it would be good for him to have something from his previous life. After one year of living together, they decided to marry. Prior to the marriage he asked me if he could give the paintings to the new wife, who loved them. I said no, but he and she could continue to enjoy them. They then got married, and in the pre nuptials it states that upon his death ALL furnishings in the house go to her, and upon her death ALL furnishings (with the exception of another painting owned by my father) go to her estate. Essentially my father, without my knowledge, has signed away my paintings to her if he dies first; if she dies first my paintings go to her adult children. If there any sort of legal documentation or way around this? I do not have title to artwork as it was originally a gift to me from a now deceased friend. Would he have to prove ownership? Is there any kind of document that I could try to get my father to sign that would overrule the pre-nuptial? Thank you.

If your father is of sound mind you can simply have him return the painting to you. He has a right to transfer the painting to you while he is alive. From what you state, his new wife has a claim only to furnishings that are in the house at the time of death. A […]

Oct 30, 2018

Question #175:My husband and I have been married 6 years (Oct. 13, 2006), he has his own business and I am making $26,000 a year, we have a dog and 2 cats, which we acquired within the marriage. He owns two buildings (only in his name) that he acquired after we were married (a 3 unit and a duplex in NY) he has been very abusive (emotionally & sometimes physically) I have just started to see a therapist because I am a very depressed person and can’t handle his criticism and abuse anymore. I was wondering since we have 2 buildings, would I be able to stay in one side of the duplex and would he have to compensate me because it is more than I can afford due to him convincing me that my job was good because I have always carried insurance. He is very controlling and we are at the point of not even talking to each other and I know where this situation is going, he always tells me to leave. This is both our second marriage, the reason for his first marriage was that he was cruel and inhumane, as I was also, but I decided to be cruel and inhumane just to get out the marriage. It would be feasible for me to live in the duplex because of the animals that I have. (If I am able to keep all of them). He said that he would put everything in his sister’s name and I would not get anything. I do not know a lot about this situation, but would like to. Please advise, Thank you very much.

If the buildings were acquired during the marriage with funds earned during the marriage, they are marital property despite the fact that they are held in his name only and you would be entitled to approximately half their value. Do not allow yourself to be intimidated by his remarks or threats. If you are living […]

Oct 30, 2018

Question #160: I left my husband almost a year ago. All of our furniture is in a storage unit in his name. Would it be against the law to take the furniture out of storage without asking him? We are still married, but living separately.

If you have not filed any legal divorce papers, you are still considered married under the law and if you have access to the storage unit there should be no problem for you to remove the items. If your husband wishes to contest the items you selected he would have to do so by filing […]

Oct 30, 2018

Question #159:I left my husband almost a year ago. All of our furniture is in a storage unit in his name. Would it be against the law to take the furniture out of storage without asking him? We are still married, but living separately.

Oct 30, 2018

Question #144:My husband and I are heading to Divorce after 9 years of marriage. Domestic Violence, alcoholism and affairs (his) have been a constant. I am due to receive a significant settlement for an employee discrimination lawsuit I filed. I have been advised to file for Divorce PRIOR to completing the actions necessary for me to receive the settlement. A few months ago, my husband ‘found’ an attorney to handle the settlement process for me, this attorney drafted a retainer that listed my husband and I as clients, yet specified therein that both the lawsuit and settlement check is/will (be) in my name (only). Advice? We are in New York State.

I would strongly recommend that you follow the advice you received and file for divorce prior to concluding the settlement. If the award or settlement is still questionable at the time when you file the summons and complaint, you may maintain that the recovery was not assured and therefore did not exist prior to the […]

Oct 30, 2018

Question #137:Near the end of my marriage I was at work on a textbook which was about 50% complete at the time we filed for divorce. (We are attempting to negotiate a resolution.) A second book, based on the first, was begun several months after filing, but required substantial additional work to complete. My wife did not contribute to the creation of either book. Both arise from my job as a teacher. Are either or both books marital property? If so, are there guidelines for an appropriate spousal share? We are NY residents.

Marital property is generally defined as all property acquired during the course of the marriage other than through gift or inheritance, regardless of in whose name the property is held .Thus, according to the facts you presented, 50 percent of the first book appears to be marital property, whereas the second book, which was not […]

Oct 30, 2018

Question #129:My husband filed for divorce after 21 yrs. of marriage after meeting someone a month before. We live in NY. At this time my 3 boys were 21, 18,16. I never worked.There were 4 properties to be divided, laundromats, contracting businesses, my x hadn’t filed taxes since 96, and much more. My lawyer was horrible. I wrote her letters numerous times. I had consults with other lawyers to see if they would take over my case. They wanted a lot of money because of the mess and I didn’t have the money to give them. I had no cash. On the day of the inquest, we were in the halls of the courts trying to split properties based on a “draft” settelement. My lawyer never went over it with me or discused with me my life style and that of my boys or the cost of living for me and my boys. My boys were the biggest concern to me and she repeatedly told me the two oldest are not my problem. It was very unprofesssional. To make a long and complicated story short, I went befor a judge for an inquest – I did not know what this was. I was tired and disgusted. Never thinking or knowing this was my final contract. My x was in contempt for all other pende- lite motions – never returned furniture, didn’t have art work appraised that he stole out of the house (over $100,000), didn’t give me maintenance and child support for two months, didn’t do repairs on the home, etc. My lawyer did nothing even though I was angry – she told me to stop worrying about the little things. and since all the court orders that were ordered in the previous months were ignored I thought initialing the papers was just temporary – my divorce settlement is only 7 pages, a lot of cross outs – a disgrace. Medical was never mentioned but in the papers sent to the judge to be filed my sweetheart of a lawyer added that I would be fully responsible for medical for myself and my youngest son. Regarding my youngest son’s education – she wrote that we would go to court if we could not agree. Since we don’t speak – we didn’t agree. I could not afford it, I can not get loans. My father helped out the first semester. The judge did not sign the papers until last month so now I can go to court and have the judge decide who has to pay. My x can afford it. My x is also suing me because I have not transferred deed. After the inquest, I asked my lawyer to do a title seach on the two properties I was awarded, she did it on the matriamonal property. With the transfer of deed papers she sent me a judgment or lien. There is a $200,000 lien on my property so I refused to transfer the deeds because no one can tell me if the lien will come off with his name. Another property I received has a satisfaction. At the day of the inquest I was told I would have to pay a man $2300 a month cash, because my x said he used the builiding for collataral but didn’t explain for what. I wanted to see the note – still haven’t. So next week I am going to court. My x is suing me for legal fees,want’s to get sherriffs to take baseball cards out of the house, force me to transfer deeds and to pay a loan shark. I am going to court alone – can’t afford a lawyer. Like I said this divorce was a disgrace and handled very unprofessional. Any advice for me would be appreciated? Do you think I have grounds to sue my lawyer and if you do can you recommend anyone?

I cannot overemphasize the need to find experienced, competent, matrimonial counsel when searching for legal representation in a divorce situation. From your description it is apparent that your lawyer neglected to inform you of the terms of the proposed settlement as they were being discussed and deliberated and to properly investigate the property that was […]

Oct 30, 2018

Question #120:I would like to know if my wife, is entitled to any profit on my house. Live in New York. I bought it in 1988. She moved in November 1995. Refinanced it in February 1998. I put her name on the deed, we were not married at the time. Since then I have paid $40,000 in mortgage payments. We got married in June 1999. We have been separated since July 2002. The refinance was to pay off a car that I owned prior to marriage. And to do some remodeling on the house. I owe more on the house now, than I did when she moved in. She put about $3000 in to something’s prior to marriage and about $500 to $1000 after marriage. Before she moved in I put about $25,000 of my own money into the house. And after about $15000.I bought it in a forecloser sale from a bank, I use to do work for. I do remodeling. And some of the thing’s she paid for was a deck, which she wanted, (materials only) that I built. My labor was worth more than the materials. Made a deal for her to put carpet in, and she could move in. So she could save money, by not having to pay any rent. And she saved a lot. I have paid 100% of the mortgage, and all utility. from day one. She has never paid anything on the house. Because she always knew it was my house. We also had agreed, that her money was hers, and mine was mine. We had separate accounts. I have agreed to give her a 1999 car. At the time of our separation, it had about $5,000.00 in equity in it. She wants me to give her $5,000 more, from the sale of my house. On top of the car. I’m thinking of selling my house and moving down south. Because my business is slow and my finances are not looking good, right now. What I’d like to know, can she get anything from the sale of my house. The car is the only thing we bought together, when we were married. I also found out that she had money in a savings account ( $3200). Which she told me she had no money, to make the car payment. Then she closed the account in April with ($2600) still in it. A day before I was served with divorce papers. On top of that she bought me a snow blower and lawnmower, as gifts. Then she sold them to her sister and her husband. I don’t want, nothing from her. I think giving her the car was enough for what she put in to the house. And I would be entitled to half of the car, which I’m willing to give up. Thank You

This case sounds like it is ripe for mediation, and should not be litigated. You’ll spend more money on attorneys’ fees and court costs than you’ll receive from the proceeds of the sale. If you are living in the New York City metropolitan area I strongly suggest that you call me at 212-370-1660 to discuss […]

LEONARD M.WEINER, ESQ, Ph.D.

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Question #160: I left my husband almost a year ago. All of our furniture is in a storage unit in his name. Would it be against the law to take the furniture out of storage without asking him? We are still married, but living separately.

Question #159:I left my husband almost a year ago. All of our furniture is in a storage unit in his name. Would it be against the law to take the furniture out of storage without asking him? We are still married, but living separately.