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TJ, Esq.
TJ, Esq., Attorney
Category: Legal
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Experience:  JD, MBA
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My husband and I are separating after 33 years .His idea. I

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My husband and I are separating after 33 years .His idea. I need to know what I am entitled to. He is getting a pension and will collect social security in 2 years. Now he is still working making about $75,000 and I make $26,000 ,He has free health benefits for life. Which I am covered by now.He is 64 I am 52. We own a home which our 2 children still live in age 28 and 26. I need to get prepared. What sounds better separation or divorce? Am I entitled to his salary and social security.Can you do mediation for a separation?
Hello and thank you for allowing me the opportunity to assist you.

I'm so sorry to hear about your marital problems. I'll do my best to answer you as simply as possible.

New York is an equitable distribution state. This means that marital property is distributed by the judge in a manner that he deems to be fair under the circumstances. This usually means that marital assets are divided in half (but it does not always mean that).

Marital property is any property obtained during the marriage, except for gifts and inheritances. So, your husband's pension and Social Security benefits would likely be considered marital property since I assume they were mostly obtained during the marriage. The same goes for bank accounts, real estate, cars, etc. It is important to note that it doesn't matter whether the property in question is only in one spouse's name. For example, if your husband has a bank account in his name only (i.e., your name is XXXXX XXXXX the account) and it has been funded with wages or other income that he received during the marriage, then it is marital property. The fact that the account is only in your husband's name is XXXXX XXXXX is the fact that the account has only been funded with his income.

You will probably also be entitled to spousal support (i.e., alimony). This is because of the length of the marriage and the fact that your husband earns 3 times as much as you. The judge has the option of awarding you temporary alimony (i.e., alimony that will eventually expire), or permanent alimony. Based on what you wrote, you may be entitled to permanent alimony because of your age and the difficulty of starting a new career and fully supporting yourself.

As for which you should get ... a divorce or a legal separation, that depends on whether you and your husband want to completely cut the ties with each other. Legal separations are common when one spouse wants to continue receiving health benefits from the other spouse, so that is a consideration for you. If you divorce, then your husband's employer may not allow you to remain covered under the policy. A legal separation would solve that problem. And yes, you can do mediation for a separation. If you would like to go this route, then I suggest that you retain a local attorney who can represent you and negotiate a separation agreement with your husband or your husband's attorney.

Does that answer your question? Please let me know if you need clarification, as I am happy to continue helping you until you are satisfied. Also, your positive feedback is much appreciated. Thank you for using our service!

If you would like to direct additional legal questions to me in the future, then please type "To VAMD" in the subject line of your question.
Customer: replied 3 years ago.

so I would be entitled to his social security now even though I am only 52?

Hi again.

No, you would not be able to collect on his Social Security until you turn 62. So, although the benefit is there for you, you must wait until you're 62 in order to collect on that.
Customer: replied 3 years ago.

I do not understand why if he is receiving his ss now I would not be able to get half,Can I request this at mediation?and when I get my ss if he is not DEAD he can get half of mine.If he is not dead what would my ss be based on.He will get $2000 at 66

Hi again.

The law states that you must wait until you're 62 before you receive Social Security benefits. You need to distinguish between you receiving benefits, and you receiving part of your husband's benefits. He is entitled to receive benefits now, but you are not. You can receive part of his benefits which would essentially be alimony. And when you turn 62, that is when you can receive your own benefits, which will be calculated based upon your husband's income and not just yours.

Does that make sense?
Customer: replied 3 years ago.

Not Really,It just seem unfair that he would get to keep his ss when the divorce /separation is his idea,I thought everything was split 50/50. He did not put me on his pension, it dies with him which would leave me distitute

Hi again.

He wouldn't necessarily be able to keep all of his SS benefits. As I mentioned earlier, you may be given alimony. He'd need to pay for the alimony somehow after he retires, so it would likely come from in SS benefits. Also, while you may not be entitled to collect any of his pension after he dies, that is something that would likely be split 50/50 at least while he's alive.

TJ, Esq. and 5 other Legal Specialists are ready to help you
Customer: replied 3 years ago.

Thank you So much for all your help. A good rating is coming your way

You are quite welcome. Thank you for using our service!

If you would like to direct additional legal questions to me in the future, then please type "To VAMD" in the subject line of your question.