While Mick Jagger sings “time is on my side,” for those of us who are not rock star millionaires, time is not on our side. I often have clients come to see me who have lived apart from their spouse for many years but took nominal, or no, legal action. When I counsel them I am compelled to explain that all property earned during the marriage is marital property subject to equitable distribution (DRL Section 236-B) (1) (c)), whether they have lived together or apart. Depending on the years married and the time apart, more assets could have been acquired while separated than while together. The longer a marriage has lasted, the more there is a presumption to an equal division. The burden then shifts to the monied spouse to prove to the Court that an unequal division of assets should occur. When making a distribution of marital property, the Court must carefully comb through the equitable distribution factors, which include the most amorphous factor of “any other factor which the Court shall expressly find to be just and proper.” You will have to prove that since you did not work together as partners your spouse should not receive a share of what you have single-handedly worked for.
In New York, you cannot disinherit a spouse so your spouse will also be entitled to certain benefits if you predecease him or her. (EPTL 5-1.1). Clients often express that they want to leave their assets to their children or new partner. However, unless your spouse agrees that may not be possible. Also, federal law limits you to naming your spouse as the survivor beneficiary on a private pension (i.e., non-government, such as a 401k account).
For example, a client of mine has lived apart from her husband for half of their marriage. While he pays her child support and visits with their children, he has done no more than the minimum in terms of financial contribution or sharing responsibilities. He is entitled to some of the marital assets, but certainly not half of what she has now. What about half of what they had when they separated? Or does he get a smaller percent of current assets? Unfortunately, there is no definitive line, making it difficult to reach a settlement and for me to advise her.
I am certainly not suggesting someone should divorce their spouse the minute there is marital discord. Before any legal action is taken you have to consider all of your options, including counseling. But there does come a time, especially when people are living apart, that you must recognize that the marriage is no longer viable, and that the longer you remain in it, the more financially vulnerable you become.
If you are living apart and sufficient time has gone by, and you do not want to work to benefit your estranged spouse, then you should speak with a qualified attorney about a separation agreement or divorce.