MARITAL PROPERTY

Oct 30, 2018

Question #117:My wife and I are living in the same house, not separated. We are both aware of severe problems in the marriage. Within a day or two I will discuss with her that I am leaving. I put an offer on a nearby house (to be near our son) that was accepted. I was “pre-approved” for a mortgage based on my salary alone, including 17% subtracted for child support. The downpayment will be a gift from my father. Closing date is still 5 to 8 weeks away. Will this new house be considered “marital property” in New York State?

In order to maintain this property as separate property and not marital property, you must put only your name on the deed ( not with your wife), use only funds which you received as a gift from your father, and do not use additional funds which you acquired during the course of the marriage to […]

Oct 30, 2018

Question #116:I was married in 1984 in NY and have one child with my spouse. My spouse filed for divorce in 1993. Towards the end of the divorce/custody proceeding (in 1995) which I was to get sole custody, my spouse abducted our child and left the country for 5 years. In 1996, I enrolled in a 401k at work and opened a IRA. When they were found in 1999 my spouse was arrested and incarcerated for a short time. The divorce was granted but soon dismissed because my attorney did not file for an “extension of time.” Since that time there have been (2) two custody cases in which I have won. She has since purchased her own home, paying cash. Now I am faced with filing for the divorce again and want to know if my spouse is entitled to any part of my 401k, IRA, equity in my home or maintenance.

I do not understand exactly what you mean when you say the divorce was “granted” but then dismissed because of failure to receive “an extension of time” . In any case, since you did not enter into a legal separation, you are still considered married and technically all of the assets you acquired during the […]

Oct 30, 2018

Question #115:I have been married for nine years and live in new york city. Recently I added my wife’s name to our primary residence as well as three investment properties. All of the properties were purchased several years before we married. The attorney who did the deed transfers advised me that in the event of divorce my wife would not be entitled to half the value of these properties but only half the appreciation of the property going forward. Another attorney told me i am totally screwed and would have been better off leaving her name off the deeds. Yet another attorney told me that after 10 years of marriage the court has discretion to include separate property in the equitable distribution calculation. Why are there so many varied opinions, are there not any clear cut laws.

Generally, property acquired prior to the marriage is separate property, and not marital property, and would not be subject to equitable distribution. However, since you added your wife’s name to the deed, you have in fact provided her a gift of one-half of the property and she may now claim that she is a titled […]

Oct 30, 2018

Question #114:I have been married for 5 years. My husband and I have 2 children, ages 1 and 4. He recently had an affair, and filed for divorce. My problem has to do with determining separate & community property. He owned two properties from a trust prior to our marriage. After we married, we used proceeds from the sale of one of the properties to buy a new home jointly. Later, we sold that property, took out a equity loan against his remaining trust property, and used it to buy our current residence. Over the years I contributed to the maintenance and mortgages of the properties, loans, bills, etc. Most all of our funds have been “comingled” in joint banking accounts. He is claiming that we have no “community property” because of the trust issue – we live in California – and I am only entitled to split our debts. Is there any documentation that I might have that might help resolving this matter? What can I do?! Thanks for your help!

By contributing the assets which were originally part of your husband’s trust funds which were his separate property, your husband has in effect made a gift to you of the funds which he had. This is true especially since you are now contributing to the maintenance, mortgage, and other property expenses. The issue is somewhat […]

Oct 30, 2018

Question #113:Married 1971,children now 24,28.I started divorce 1993,husband unstable, Children and self left house for safety in 1994, Trial by jury in 1996 contested by husband. I lost. So I am married to someone who would hurt me if he could find me. I have been in hiding since trial. Children now grown, on their own. Husband bought another house upstate ny about 3 years ago, he had been living in our house that we bought in 1976 which is now paid for up until this summer, visiting the other house on weekends. He now lives upstate and plans on renting our house. Questions:does he have the right to rent with out my permission? I was in a very bad accident in March of 2003, I’ve had 7 operations since, the last was a spinal fusion leaving me out of work. I do collect social security disability. I haven’t asked him for any support or help of any kind, however if he is not going to live in the house, i might. Should I get a restraining order to prevent him from renting? Should I break into my house (he changed the locks in 1996) and change the locks myself and start living there? I need to know what to do because once someone else is in the house it will be imposible. help me please.

In order to properly answer your question I must know whether you are named on the deeds as a joint tenant or tenant in common with your husband. If you are named on the deeds you are an owner of the property and as such have a right to determine whether the property shall be […]

Oct 30, 2018

Question #72: My spouse and I are contemplating an amicable divorce in NYS. We have 2 homes with mortgages in both our names. We have agreed for each of us to take a house along with the mortgage responsibilities. How will that work from the legal standpoint. do we have to re-mortgage the properties to remove the joint ownership or does that happen as part of a divorce?

you will have to consolidate the original mortgage into a second mortgage with only the owning party named in the new mortgage. To do this, you will need the cooperation of the mortgage Co. You will have to re-apply individually to the mortgage Co and each party will have to qualify alone for the mortgage […]

Oct 29, 2018

Question #214: My husband and I were married in Jamaica seven years ago. We live in New York State. We purchased a home together with his name on the deed and mine is not. I want a divorce due to emotional, verbal, and you physical abuse. He threatens our marriage is not legit due to emotional out of country and because my name is not on the deed that I will not be entitled to the house and/ or any portion of it and any monies that are put into his 401K and other retirement savings. Is this true? His earnings far exceed mine by 2/3. We do not have no children together and I have a 20 year and old in college . Thank you so much for your help.

Do not listen to your husband’s threats. NY recognizes foreign marriages. If the house was purchased with funds earned during the marriage or the retirement account was acquired during the marriage, they are “Marital Property”, regardless of in whose name they are held. In addition, he should have to provide you with some form of […]

Oct 29, 2018

Question #213: My wife recently informed me she would like to separate and subsequently asked me to move out. I have been living in the house we just bought for the past 2 weeks with no heat or hot water but is in my name only. I have been renovating this house for 6 months. Now I’m living in construction. She also just told me she wants to end the marriage. I have an inheritance coming to me from my deceased mother of 10 years and my father who just passed this summer. Is any of the inheritance considered marital assets ? Can she take any of it ? Most of it is in an inheritance IRA and some in bonds and cash. I live in Nassau County NY.

If the house was purchased with funds earned during the marriage, it is “Marital Property”, regardless of in whose name the house is held. Any inheritance you receive which you keep in a separate account in your name only, is “Separate Property” not marital, and will belong to you only. Please call me at 212-370-1660 […]

Oct 29, 2018

Question #148: My question is what are marital assets? I have no issue with physical possessions and those can be divided equally. My problem is that my wife refuses to engage in sexual relations with me and I am very tired with this issue. If she no longer loves me then I can live with that. Can I divorce her on that issue in the state of new york? I live in Upstate area and would like to know. We have two children together who are 7 and 9. We both earn equal amount but seem to no longer love each other and that issue is spilling over into our relationship with our children. Thanks.

Generally, marital assets are any assets or money earned or acquired by either party during the marriage regardless of in whose name title is held except for gifts, or inheritances which are kept in separate accounts and not commingled with marital assets. If one party refuses to have sexual relations with the other party for […]

Jun 13, 2018

Question #112: i have been married almost 10 years-4/20/04 if i get a legal seperation can i also stay on the medical insurance- he is a suffolk county police officer- the insurance for the me and the two kids is free no out of pockets expenses for him. also he is a extreme drinker and has some police reports filed on him for abuse to me only -the abuse (all of them0 has been since a month after we married- i have always kept a diary and can list all dates which is quuite often he has ia involved in his behavior and to top this he has many girlfriends and one after two years of coming here breaking in , ramming garage doors and getting my husband loaded work gun and holding james & I hostage and etc. his job finally kept coming here and finally talked me into order of protection -in which she violates here and there- but its much better-my husband still meets her goes to all her courts dates and has a tatto on his arm of her name about 2 years now. i live in fear from him everyday i do not any acess to money and well its pretty horrid-he does not hurt the kids just ingores them alaways did- their ages are 5 ,7 they do not like him and are telling me not to let him in the home and want a new nice dad, well he does make 102,000 a year but he fails to give us money and i mention he goes missing for days, sometim weeks etc with no way to contact him -my mom lives downstairs and thank god for her she doesnt make much with social security but can help sometimes. i have recently had to go to a church for food it was embrassing he keeps his paycheck cash in his wallet there is no money anywhere in accounts and he pay bills sometimes but the house went into foreclosure twice and my friend gave me the monet to save my youngest child will be going to school soon he forbids me to work all thses years, and have to produce receipts when he gives me food money to check to make sure i never get change back and to see and critize what food i bought. my friends help to get me hand me dows for me and kids and even bought them new jackets for the winter when they came here(which is only allowable when james is working) and he does not know we are not allowed to have anyone over to visit- anyway i cried when i got the jackets- our home is falling apart it was a foreclosure when we got it and need lots of work which he does not want to or have any repairs so its not worth much. but he always on vacations himself, out of \bars all of the time, sporting events , rock concerts etc.. and the cable shut off again and phone disconnected again because he so late paying or for lack of not paying them etc.. what would be the best thing to do –also he does want a divorce or seperation -that he is handling everything etc-but he does not. i need help-also he has a son who is 12 from a previous girlfriend he never see him last time maybe 3 years ago me and my kids would get and see him 100x more than james-the child support is 700.00 a month which is garnished from his paycheck. i sure this would have some bearing on me and kids. i live in new york state could you tell me how much i would receive in child support thank you-thank you sorry its so long but i guess you would need to know basic of components thank you please write back

Answer: As part of any court settlement, if you cannot afford health insurance for your children and for yourself, the court will require your husband to provide it, either through his employer if it possible, or through some independent means. If you are unable to work or must tend to the children because they are […]

LEONARD M.WEINER, ESQ, Ph.D.

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