A recent Forbes article reveals why it is important for couples who are contemplating divorce to rely on the advice of attorneys who specialize in handling such matters, rather than information gleaned through conversations with friends and family, or the tabloids and news outlets.
News accounts regarding the divorce of Bethennay Frankel and her husband have provided erroneous information regarding New York state law and the couples’ property rights.
In the article, the author uses the divorce of Bethenny Frankel from her husband, Jason Hoppy as an example. The couple is best known for their roles on the television show, Real Housewives of New York. Frankel is also the force behind Skinnygirl, a line of low calorie alcoholic drinks. Hoppy is a pharmaceutical sales rep. Frankel and Hoppy filed for divorce in January of this year.
News reports have indicated that the couple continues to live together in their marital home, a $5 million Tribeca loft apartment, with their young daughter, Bryn. These accounts suggest that both parties want to remain in the home because moving out would constitute abandonment of the property under New York state law and make it more difficult to claim the property during the couple’s divorce settlement.
However, this information is erroneous, under New York state law, the couple’s apartment is considered marital property since it was acquired during the marriage using marital assets. This means that the property will be subject to division during the divorce settlement, irrespective of who’s been living at the address during the separation. This has been the law in New York since 2010, when the state established non-fault divorce. Prior to this, leaving the marital home could have been used to make an assertion that the property was abandoned by the leaving spouse.
Couples maintain their property rights in the marital home even if they leave during separation; however it is important to reach an agreement on key issues.
Although the reference here is to New York law and not that of California, the lesson applies to divorcing couples in California as well. This being said, Laura A. Wasser, a Los Angeles based attorney and author of a forthcoming book about financial matters relating to divorce, states that although she almost always advises clients to establish distance when they separate, it is important for couples to have a serious discussion regarding their property before doing so. Wasser suggests having a conversation about the following issues:
1. Care of the Property: This includes maintenance and interim financial obligations.
2. Property Left in the Home: This includes what property is being given up and what property will be divided and retrieved at a later point.
3. Parameters: This includes what entitlements the leaving spouse has to the home after they leave. Can they use the home on certain occasions or in some circumstances? Or does the remaining spouse receive exclusive use and an expectation of privacy in the home.
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