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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Family Law
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Experience:  Experienced attorney: Family law, Estate Law, SS Law etc.
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My wife and I may divorce. My Father in Law set up a partnership

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My wife and I may divorce. My Father in Law set up a partnership before his death on an apartment building he owned in Mam'k NY 4 siblings, 2 spouses, for tax purposes. After his death, a new partnership was drawn up eliminating the spouses, again for tax purposes. Since both partnerships were drawn up during my marriage am I entitled to the rental profits and a share of the profits from the sale of the apartment building?
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

Even though you are not a partner, if your spouse is a partner, then any income your spouse receives from the partnership would be considered a marital asset capable of equitable division upon a divorce.

As far as eliminating the spouses from the original partnership, as long as you received proceeds during the time you were a partner that would be all you were entitled to and you and your spouse's shares of those proceeds would have been marital assets as well.

If you are currently married and divorcing then the proceeds your spouse receives from sale would be indeed considered marital property capable of division. If you are not divorcing, then sales proceeds could also be considered a marital asset as it was acquired during the course of the marriage.

This type of asset and situation you describe though is something that is litigated most frequently in courts because the court has to look at the circumstances and the amount of time of the marriage and whether or not it was deemed an inheritance which is separate property and a host of other factors. However, the general and simple answer is most times the proceeds end up marital property capable of division in a divorce.

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