I am 59 years old, and my husband and I have been unofficially separated for 20 years. We both retain ownership in our home on Long Island, although I live there and pay all mortgage payments, bills, etc. He was having an affair that broke up our marriage, and he is still with that woman. I am also residing with someone. We have three grown children. I am earning approximately 55,000 a year, and he is making about 80,000. We file our taxes together. My 401 is vested at about 40,000 and his over 100,000. I have no other asset, and he does have to help me financially as my mortgage payments are very high. I do not want to sell my home, and he has said he would never ask for that. I am the recipient of his insurance policy and 401 upon his death. He is also mine. Right now, he has met another woman of 42 years of age who is insisting he divorce. If we decide to do this, what are the repercussions to me? Would I be entitled to any alimony, share in 401, etc.? We are currently married for 40 years, and if I have to, I will contest this divorce.
Until you enter into a legal separation and divorce, you are still considered legally married, and any money earned by either of you, including your retirement accounts, are considered marital property and generally will be divided equally. Therefore, if you decide to divorce now, any additional monies which he or you will earn after the summons and complaint are filed, and the separation agreement is executed, or a judgment of divorce is filed in the county clerk’s office, will be considered separate property. You will have no claim to those monies earned by him after such a date.
If you agree to enter into an uncontested divorce, you must provide for some spousal support for yourself, including the continued mortgage subsidy that you are presently receiving and some additional spousal support. There are several other issues that you must be concerned with, which should be incorporated in the separation agreement before agreeing to the divorce.
Please call me at 212-370-1660 to arrange for an appointment with you and your husband to discuss mediating your divorce. It will be less expensive, less emotionally draining, and much faster than litigating it in court.
Leonard M. Weiner, Esq./Divorce Solution