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LawTalk, Attorney and Counselor at Law
Category: Family Law
Satisfied Customers: 37078
Experience:  30 years legal experience. I remain current in Family Law through regular continuing education.
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I am married and my husband and I live in different places

Customer Question

I am married and my husband and I live in different places and conduct a separate household. We have a sepate bank accounts and I am in process to buy an apartment in NYC for cash anther my name.I want to protect my property in the future. What I have to do in order to protect my property in case of divorce? Unfortunately I do not have sufficient funds to pay a lawyer. Thank you
Submitted: 2 years ago.
Category: Family Law
Expert:  LawTalk replied 2 years ago.
Good evening,
I'm Doug, and I'm sorry to hear of the confusion. My goal is to provide you with excellent service today.
1. What state are each of you residing in now?
2. If you divorce, what state will the divorce occur in?
Customer: replied 2 years ago.
1. NY
Customer: replied 2 years ago.
I am not planing for divorce. I just want to protect my property
Thank you
Expert:  LawTalk replied 2 years ago.
Good morning,
Thanks for the additional information.
Under NY law, because all income earned and assets acquired during the marriage are deemed marital property (with the exception of inheritances and gifts from third parties) the only way that you can "protect" what you earn and purchase from a future claim by your spouse is to enter into a Post-Nuptial agreement and contractually agree to keep all property and assets separate.
There is no short-cut to this process and while you can try and draft the written agreement yourself, attempting it would be doing yourself a great disservice. These agreements are no simple and straight forward and there are hoops that you must jump thorough to make the agreement legally binding and attack-proof.
Domestic Relations Law section 236 B 3 sets out the following:
“An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded. Such an agreement may include (1) a contract to make a testamentary provision of any kind, or a waiver of any right to elect against the provisions of a will; (2) provision for the ownership, division or distribution of separate and marital property; (3) provision for the amount and duration of maintenance or other terms and conditions of the marriage relationship, subject to the provisions of section 5-311 of the general obligations law, and provided that such terms were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment; and (4) provision for the custody, care, education and maintenance of any child of the parties, subject to the provisions of section two hundred forty of this chapter.
Nothing in this subdivision shall be deemed the validity of any agreement made prior to the effective date of this subdivision.”
You say that you are investing significant money and buying an apartment for cash, and I would strongly suggest that you also invest a couple of thousand dollars and have a proper Post-Nuptial Agreement drafted by a local Family Law Attorney.
Think of it as akin to title insurance for your home----but this expense will provide for the security of not only your home but all of the assets you acquire as well. I assure you it is money well spent.
Short of the Post-Nuptial Agreement, you have no way to protect your accumulated assets, including your new apartment, from the marital claims of your spouse in the event of a divorce.
You may reply back to me using the Reply link and I will be happy to continue to assist you until I am able to address your concerns, to your satisfaction.
Kindly, remember to rate my service to you. That is how I am credited for assisting you.
I wish you and yours the best in 2015,

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