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#772926 - 01/17/17 08:49 PM Looking for any help with this
metpit1 Offline

recently joined

Registered: 03/13/15
Posts: 3
First off...If you take the time to read this and provide advice I truly appreciate it. I'm lost on some issues and my attorney has yet to provide any answers. I want to be brief but some back round is needed.

I'm currently in the process of getting a legal separation from my wife. We have been apart for almost 3 years but had nothing legal written up. I have retained a lawyer from the national firm of Cordell & Cordell who have a local office here in my city in the state of New York. The proceedings have been going on since early October. However, I have had only one face to face meeting with my attorney and that occurred early January 2017. We only communicated via email and one phone call.At my meeting with my attorney I finally got to share my thoughts on settlement with her.

I have more questions now then I did then so here are some of those.

I was going to give my wife the house and its contents and take any credit debt incurred during the marriage as mine. In exchange I was asking that she waive any interest in my future pension and monthly maintenance.

However, If she came after the pension or maintenance, I'd be forced to have her buy me out of my share of the house . But here is my dilemma.
After paying on the mortgage for several years my wife's mother agreed to pay off the house if I in turn took my name off the title. I agreed and her mom paid roughly $100,000 and paid off the property. I continued to live there a few more years until we separated in April of 2014.

My attorney states that whatever the house is appraised for I would not have a right to the $100,000 of that figure. She stateed that since my name coming off the title coincided with the mortgage being paid off my her mother they (wife /attorney) would have a strong case to state that the $100,000 was a gift or advance on inheritance. Both of which is not subject to marital distribution.

Is this true? Isn't a parent only allowed to gift a child a certain amount of money a year? If a gift or inheritance isn't it subject to taxes? Like I said I have no desire in the house and would only use it a leverage if she came after my pension/maintenance.

Finally is the value of the house what it is appraised for or what it sells for? If she was forced to buy me out my attorney stated that if the house were appraised for $185,000 I would be allotted $42.500. However if, using my attorney's logic, my wife sold the house for $100.000 the same amt, her mother supposedly gifted her then would I get nothing?

If you took time to answer this I may very well have another question for you but for now thanks so much for responding.


Edited by metpit1 (01/17/17 08:54 PM)

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#772927 - 01/17/17 09:44 PM Re: Looking for any help with this [Re: metpit1]
TJMH Offline

enthusiast

Registered: 07/17/15
Posts: 339
If your attorney thinks you don't have rights to $100,000 worth of the equity in your home, then she's probably right. At the very least it's unlikely that attorney will be able to get it for you. So it might be worth getting the opinion of another attorney on that, but keep in mind that family law attornies get paid to argue, they don't get a bonus for winning or get docked for losing.

If the house is to be sold then the sale price should be used as the value. Subtract her $100K & closing costs and split the rest. Even if you're not on the title the house is still marital property so I don't think she'd be able to agree to a sale price without your concurrence, and in any case if you can demonstrate that it was deliberately sold for substantially below market value to devalue your share you could probably get some consideration from the court.

If she means to keep the house and buy you out then the appraised value is probably the most advantageous for you. It might be possible to have a local real estate agent do a competitive market analysis and tell you what they'd list the place for, but that will more than likely be lower than the appraised value.

If you think you've only got $45K or so in your share of equity, it doesn't sound like you've got an awful lot of leverage against the pension and alimony issues.

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#772928 - 01/17/17 10:49 PM Re: Looking for any help with this [Re: metpit1]
MinnesotaMom Offline

old hand

Registered: 01/05/11
Posts: 770
It's all really a simple math problem.

Your equity in the home is not based on what it sells for, but an appraised value, minus what part is your ex's. Your attorney is probably correct in what part is exempt.

Your pension and any other things of value accumulated during the marriage are split 50/50 in your state.

Child support and alimony are by formula in CA.

As for evaluating what your non-working spouse could be making if she was working, why don't you give more details here, such as, work history, education, when she last worked, ect.

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#772929 - 01/17/17 11:35 PM Re: Looking for any help with this [Re: metpit1]
metpit1 Offline

recently joined

Registered: 03/13/15
Posts: 3
My wife is employed Minnesotamom. I guess what is confusing is this 100,000 that her mom paid to pay off house. If it is a gift I believe nys only allows 10 thousand a year to be gifted to a child. If it is inheritance and is used to pay off a home we purchased together when married I'm not sure why I would not have claim to it in addition if any of the two things is true (gift or inheritance) taxes should be paid on it it think....she does not want to sell the house. My plan for settlement was she gets house and it's contents. I take credit card debt ...in exchange she waives maintenance and right to part of future pension

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#772930 - 01/18/17 03:16 AM Re: Looking for any help with this [Re: metpit1]
TJMH Offline

enthusiast

Registered: 07/17/15
Posts: 339
Unless New York has some special law about "advance inheritance" it was probably legally classified as a gift (which sounds like then somebody may owe some taxes). And you might try to make the case that by comingling it with your house it became marital property and subject to division.

But again, your lawyer probably knows better whether you've got a shot or not. I think your tack of trying to make a deal where she keeps the house is probably the path of least resistance

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#772948 - 01/22/17 05:26 AM Re: Looking for any help with this [Re: metpit1]
MinnesotaMom Offline

old hand

Registered: 01/05/11
Posts: 770
A problem you run into with your logic is if taxes are owed on $90K, then you could very well owe half of it if you do are doing joint returns.

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