Q. When I visited my sister last week, she told me things aren’t going well with her husband. She’s thinking of splitting up but he is in charge of all the money. She wants to start her own account that he won’t know about so she can prepare for the worst. How can she do this?
A. We’re glad to hear you’re trying to look out for your sister, but it sounds like she has some big decisions to make on her own.
We’re guessing she’s thinking divorce.
“While there is nothing wrong with your sister setting aside some money to bring her peace of mind, she would be best off deciding whether her marriage, if the same was a living breathing entity, is dead or not,” said Kenneth White, a certified matrimonial attorney with Shane and White in Edison. “If the same is dead, she should be consulting with a divorce attorney to secure a better understanding of all her rights.”
White said if she is not prepared to declare that her marriage is dead, she should be putting forth 100 percent of her effort to preserve it, whether attending counseling or otherwise.
The reality is that until a Complaint for Divorce is filed, all assets amassed during a marriage regardless of whether the assets exist in one party’s sole name or the other are subject to equitable distribution and will most likely be divisible 50/50, White said.
So even if your sister’s husband maintained all the money in accounts in his sole name, your sister likely has a claim to share in 50 percent, he said.
Accordingly, even if your sister began setting aside money for herself now in an independent account, if she does this prior to filing a Complaint for Divorce, her husband will have a claim to recover 50 percent.
“Kindly note that certain assets are immune from equitable distribution,” White said. “For example, if a party to a marriage receives an inheritance or a gift from a third party, those assets are immune from equitable distribution.”
To sum it up, there is no his money or her money, it is all “our” money and is subject to equitable distribution.
White said another reason for your sister to consult with a divorce attorney in the immediate future is that there may be many additional issues that she does not understand, and a better understanding of the issues may bring her some additional comfort, White said.
For example, he said, if she has been married for several years and her spouse earns significantly more than her, she may be entitled to receive substantial alimony. Further, there may be other assets like real property – a house – or retirement benefits to account for, he said.
“My point is that focusing on putting away a few dollars now is allowing herself to be focused on the `short term,’ but your sister would be best served by focusing on the `long term’ – her long term financial security,” White said. “I’m sure you are familiar with the saying `penny wise, dollar foolish.’ Don’t allow your sister to be `penny wise.’”
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