Can husband's girlfriend get his house?

[risalw]

What is the name of your state? NY

I am legally separated for almost 2 years. We have 2 small children and share custody. My husband and I took the proceeds from the sale of our home and each bought a house. His girlfriend (the same one who he cheated with) moved in with him but her name isn't on the deed or anything. If he dies or goes to prison (she has threatened him) who will get his home and property if there is no will. Can she get him kicked out of his own home? Also, without wills, are we still each others next of kin?

 

[LdiJ]

What is the name of your state? NY

I am legally separated for almost 2 years. We have 2 small children and share custody. My husband and I took the proceeds from the sale of our home and each bought a house. His girlfriend (the same one who he cheated with) moved in with him but her name isn't on the deed or anything. If he dies or goes to prison (she has threatened him) who will get his home and property if there is no will.

His next of kin would recieve his house and property under the rules that your state sets out for cases that are intestate (without a will). That may or may not mean that you would be included as part of the next of kin, but your children certainly would. However his parents might factor in as well.

However, if he went to prison, his property would remain his property. It could be seized for restitution depending upon the circumstances, or it could be left under the charge of whoever he designates. If he would designate his girlfriend to be in charge (which he would be a FOOL to do) then she could certainly remain in the home. However if she wasn't willing or able to pay the mortgage he would end up losing the home to foreclosure.

If he went to prison it would be wise for him to give a family member a POA to sell the home so that his equity would be available to him when he gets out. Otherwise, odds are that the home would end up in foreclosure.

Can she get him kicked out of his own home? Also, without wills, are we still each others next of kin?

She could possibly get him temporarily kicked out of his own home with a restraining order, but it would only be temporary unless he didn't have good legal representation....and even then it would eventually have to be temporary, because even with a restraining order he could have her legally evicted.

Again, since you are legally separated you may not qualify as his next of kin anymore (probably don't), but certainly your children would....again maybe combined with his parents.

 

[JETX]

And NOW for a legally accurate answer....

who will get his home and property if there is no will.

If there is not a will, his estate will be distributed in accordance with the state intestate laws. And yes, if you are still married to him at the time, you become the 'surviving spouse'.
Here is the NY intestate distribution for 'surviving spouse':
1. Surviving spouse. A surviving spouse is generally first in line to get any assets from the intestate estate. However, the amount a surviving spouse is entitled to varies as follows:
* A surviving spouse is entitled to the entire intestate estate if the decedent is not survived by issue (i.e., descendants like children and grandchildren).
* If the decedent is survived by issue, a surviving spouse gets the first $50,000, plus one-half of the remaining property in the intestate estate.

Can she get him kicked out of his own home?

Depends. How big are her boots??

Also, without wills, are we still each others next of kin?

No. Spouses are not 'next of kin'.... and no such LEGALLY!!!

 

[LdiJ]

And NOW for a legally accurate answer....


If there is not a will, his estate will be distributed in accordance with the state intestate laws. And yes, if you are still married to him at the time, you become the 'surviving spouse'.
Here is the NJ intestate distribution for 'surviving spouse':

!

Except that the state involved is NY...NOT NJ.

 

[JETX]

Except that the state involved is NY...NOT NJ.

Oops... my error... and it has been corrected. And of course, LEGALLY ACCURATE responses trump 'generic guesses' all day long!!!

 

[Ohiogal]

And NOW for a legally accurate answer....


If there is not a will, his estate will be distributed in accordance with the state intestate laws. And yes, if you are still married to him at the time, you become the 'surviving spouse'.
Here is the NY intestate distribution for 'surviving spouse':
1. Surviving spouse. A surviving spouse is generally first in line to get any assets from the intestate estate. However, the amount a surviving spouse is entitled to varies as follows:
* A surviving spouse is entitled to the entire intestate estate if the decedent is not survived by issue (i.e., descendants like children and grandchildren).
* If the decedent is survived by issue, a surviving spouse gets the first $50,000, plus one-half of the remaining property in the intestate estate.


Depends. How big are her boots??


No. Spouses are not 'next of kin'.... and no such LEGALLY!!!

Try again. A decree of legal separation in NY precludes intestate share to spouse but NOT will share. So if hubby has a will she can inherit under the will. HOWEVER because they are legally separated, she cannot inherit if hubby dies and has NO will. The children -- if they are his -- would inherit. This is according to several lawyers in NY and other websites.

 

[Bali Hai]

What is the name of your state? NY

I am legally separated for almost 2 years. We have 2 small children and share custody. My husband and I took the proceeds from the sale of our home and each bought a house. His girlfriend (the same one who he cheated with) moved in with him but her name isn't on the deed or anything. If he dies or goes to prison (she has threatened him) who will get his home and property if there is no will. Can she get him kicked out of his own home? Also, without wills, are we still each others next of kin?

You have been legally separated for 2 years and why haven't you divorced?

 

[risalw]

I haven't filed for divorce yet because I have health care benefits from him and because I thought I would have more control with regard to his house and property from the girlfriend. Even though my ex hasn't made good decisions for the last few years... I try to make smart decisions financially for me and for our children. I thought that since he's not pushing for divorce that I can benefit from the insurance and maybe other things that I'm not aware of. Plus, I would hate to give her a way to marry him. Would she then be entitled to home or property, or would that be considered separate pre-marital property?
I want to thank everyone with there responses...We separated through mediation and now I feel that I don't have enough information.

 

[stealth2]

If you already split the proceeds from the house the two of you owned together, why do you think you should get to control the house that he purchased from that let alone whether or not he marries his g/f?

I'd been thinking of a response to Bali's question, but didn't want to assume things. Sadly, it seems it would have been the correct response. Bali - it's because she thinks she should still get more $$$ out of him.

 

[Ohiogal]

I haven't filed for divorce yet because I have health care benefits from him and because I thought I would have more control with regard to his house and property from the girlfriend. Even though my ex hasn't made good decisions for the last few years... I try to make smart decisions financially for me and for our children. I thought that since he's not pushing for divorce that I can benefit from the insurance and maybe other things that I'm not aware of. Plus, I would hate to give her a way to marry him. Would she then be entitled to home or property, or would that be considered separate pre-marital property?
I want to thank everyone with there responses...We separated through mediation and now I feel that I don't have enough information.

Tough. You are legally separated. Which means you have no claim to anything if your ex dies. Neither does his girlfriend. UNLESS there is a will which leaves her or you or both anything. You do NOT get the right to dictate things. Your legal separation should have divided the property. The children would have a right if your husband dies intestate. However he can disinherit them if he wants and leave girlfriend everything. You CANNOT control your husband after you have legally separated. You have NO control over HIS finances or HIS property. And life insurance goes to whoever is named as the beneficiary. NOT to you just because you are still married. health insurance ends for you when you get divorced but it can continue for the kids. And they cannot get married until you and he are COMPLETELY divorced. As for what she would get after she marries him (if that happens) that depends on too many variables -- NONE OF WHICH ARE YOUR BUSINESS.

 

[JETX]

Try again. A decree of legal separation in NY precludes intestate share to spouse but NOT will share.

Where does it say ANYWHERE in this thread that a 'decree of legal separation' was filed??
Of course, the answer is.... it doesn't. Just more made up crap.

A couple in New York, as in most other states, can be legally separated without ANY filing of any decree or agreement.

Now, if the writer comes back and says that THEY have both entered into a "Separation Agreement" or "Separation Judgment".... your answer MIGHT be correct. And even then, only if 'intestate distribution' is resolved in the agreement.

So if hubby has a will she can inherit under the will. HOWEVER because they are legally separated, she cannot inherit if hubby dies and has NO will. The children -- if they are his -- would inherit. This is according to several lawyers in NY and other websites.

And again, is ONLY accurate IF the writer has a VALID (very tricky) legal separation document that doesn't have ANY provision for intestate or holographic distribution (also unlikely as ANY competent attorney would have provided).

 

[rmet4nzkx]

Where does it say ANYWHERE in this thread that a 'decree of legal separation' was filed??
Of course, the answer is.... it doesn't. Just more made up crap.

A couple in New York, as in most other states, can be legally separated without ANY filing of any decree or agreement.

Now, if the writer comes back and says that THEY have both entered into a "Separation Agreement" or "Separation Judgment".... your answer MIGHT be correct. And even then, only if 'intestate distribution' is resolved in the agreement.


And again, is ONLY accurate IF the writer has a VALID (very tricky) legal separation document that doesn't have ANY provision for intestate or holographic distribution (also unlikely as ANY competent attorney would have provided).

It would appear from OP's words that it is her belief that they have a "legal Separation"
of some sort

name of your state? NY

I am legally separated for almost 2 years. We have 2 small children and share custody. My husband and I took the proceeds from the sale of our home and each bought a house. ...
I haven't filed for divorce yet because I have health care benefits from him and because I thought I would have more control with regard to his house and property from the girlfriend. Even though my ex hasn't made good decisions for the last few years... I try to make smart decisions financially for me and for our children. I thought that since he's not pushing for divorce that I can benefit from the insurance and maybe other things that I'm not aware of. ... We separated through mediation and now I feel that I don't have enough information.

One might assume with the use of the words, "Legal separation, proceeds from sale of house, and "separated through mediation" that there is reason to believe there is a separation agreement and a separation decree, but perhaps not if she is still entitled to insurance benefits. Maybe he doesn't want to marry the girlfriend but is afraid to let her know he isn't divorced, we don't know what these threats are about. Although an extreem possibility, it is possible that under very strict criteria, the girlfriend might have some standing as a putative spouse.

 

[Ohiogal]

Where does it say ANYWHERE in this thread that a 'decree of legal separation' was filed??
Of course, the answer is.... it doesn't. Just more made up crap.

A couple in New York, as in most other states, can be legally separated without ANY filing of any decree or agreement.

Now, if the writer comes back and says that THEY have both entered into a "Separation Agreement" or "Separation Judgment".... your answer MIGHT be correct. And even then, only if 'intestate distribution' is resolved in the agreement.


And again, is ONLY accurate IF the writer has a VALID (very tricky) legal separation document that doesn't have ANY provision for intestate or holographic distribution (also unlikely as ANY competent attorney would have provided).

Actually I was not making up crap. She states that she has a legal separation. So if she has a legal seperation then the law states that she does not inherit by intestate succession but can inherit by will. A bit touchy you are. I am going by what OP says and she states that she and her husband have been LEGALLY separated. So if that is true then she doesn't inherit through intestate but can still be left a share in the will.

 

[Ohiogal]

It would appear from OP's words that it is her belief that they have a "legal Separation"
of some sort
One might assume with the use of the words, "Legal separation, proceeds from sale of house, and "separated through mediation" that there is reason to believe there is a separation agreement and a separation decree, but perhaps not if she is still entitled to insurance benefits. Maybe he doesn't want to marry the girlfriend but is afraid to let her know he isn't divorced, we don't know what these threats are about. Although an extreem possibility, it is possible that under very strict criteria, the girlfriend might have some standing as a putative spouse.

She can still receive health insurance through hubby even if they are legally separated. That is one of the main reasons MANY COUPLES go the legal separation route.

 

[rmet4nzkx]

She can still receive health insurance through hubby even if they are legally separated. That is one of the main reasons MANY COUPLES go the legal separation route.

This is not always the case, in some cases a legal separation also ends the obligation for health insurance, may couples obtain their legal separation for the purpose if continuing their health benefits and fail to inform the carrier of the change as required b the plan.

Changes in Dependent Status
The Fund must be notified if a member acquires a dependent through marriage, domestic partnership, birth or adoption, or loses a dependent due to death, divorce, legal separation, or termination of domestic partnership.

Active employees should submit written notice of such changes to their personnel office along with the required documentation. Retirees should write to the Management Benefits Fund Office regarding any changes in dependent status and include the necessary documentation.

I found this re the 2 ways to obtain a "legal separation" in NY

There are two ways to become legally separated in New York. The first and by far the most common way, is by both parties signing a legal separation agreement and living apart in accordance with that agreement. The New York Separation Agreement must meet certain requirements in form and language. All of the issues addressed in a divorce, such as custody, support and equitable distribution, must be addressed in the Legal Separation Agreement. The second method of obtaining a legal separation is by obtaining an order of legal separation from the Court.

The New York Legal Separation Agreement should be filed with the County Clerk. After being legally separated for at least one year, either party may start a divorce action based upon the grounds of being legally separated.

It would seem that OP at least meets the first if the agreement was filed with the county clerk.