Receive FREE Special Report First Name Email Address I Respect Your Email Privacy

Divorce Lawyers New York - The Marital Estate

The Marital Estate and The First Steps In Preserving It

What is the marital estate? Simply put, the marital estate is composed of property and funds which were either acquired by one or both of the spouses during the course of the marriage, or which a spouse contributed funds towards (such as equity in property through paying a mortgage) even if the other spouse established a sole interest in that property before the marriage. It also can include retirement funds which were started before the marriage, but have been building up since the date of marriage.

The first question, of course, is what can be done to prevent “dissipation” (in other words, transfers or spending of funds) of the marital estate by the other spouse at the outset of the case. The filing of a divorce case alone will not automatically protect dissipation. Typically, if a client is afraid that the other spouse will try to drain a bank account, or quit-claim deed title in a house over to a relative, the first step is to simultaneously file a petition for dissolution, along with an emergency motion to impose a temporary restraining order (TRO). The emergency motion is typically filed as an ex-parte motion (in other words, the other spouse does not need to get adequate notice of the motion). However, the order will have to be sent to the spouse afterwards, and the order IS only temporary. It is possible to try to rectify pre-filing dissipation, but that would require a normal motion.

As far as protection before the filing itself, common sense should apply. The client should put aside some money in a separate account; however, it should be an amount which the court would view as fair and reasonably necessary (in other words, don’t just drain a bank account entirely, and leave the spouse with nothing). Keep an eye on whether a spouse with sole title to a house is trying to deed it to a friend or relative. A client should carefully read all documents that the other spouse presents, especially real estate documents. Signature requirements for title transfer offer some protection, but only as much as the client’s unwillingness to sign documents can provide.

Back to divorce articles