What is the date of separation of assets for a couple who has been separated for more than ten years but never filed for divorce? 2 Answers as of September 09, 2015

My ex-wife and I have been living apart for more than 10 years (no children) and I paid some of her expenses (housing, medical, etc) during that period. We want to divorce and separate our assets,the only important one is my employer- sponsored pension plan. The specific question is (since the pension plan changed in value a lot over time) what date do we consider for the value of the plan to divide. Now? 5 years ago? 10 years ago? And since my income is bigger than her and I will have to pay some spousal support, but the question is from when do I owe that. Can she legally request spousal support for the past years, as if we were divorced, but at the same time claim that she had a right to the money that accrued in the pension plan during that time? Or is it that once we establish a date in which we separate our assets is the day in which the marriage is over and nobody can ask for spousal support for the period before that?

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Law Office of Barton R. Resnicoff | Barton R. Resnicoff
Assets acquired after a physical separation but before a divorce is commenced is technically marital; but if the other spouse did nothing to contribute to its acquisition, either directly or indirectly, the non-titled spouse should not share in its value; however, the increase in value of a retirement funds acquired while together continues to increase in value based upon market conditions after the separation and that increase in value should be shared. On the issue of maintenance(spousal support), if both are able to be self supporting, there should not be an award. From what you have related, your wife may not be self supporting and she should get some support for a period of time. There is pending a bill(passed the legislature and is waiting for the Governor to sign it into law)that has maintenance guidelines which may be somewhat of a help, but the lengthy separation complicates it requires a somewhat of a modification of those guidelines. As for "past support," to some extent, you have voluntarily paid support; while there is a cause of action for "necessaries," is a form of past support, it is not the easiest to prove and be successful at.
Answer Applies to: New York
Replied: 9/9/2015
David A. Browde, P.C.
David A. Browde, P.C. | David Browde
The date of filing of the papers initiating the divorce unless you negotiate for something else.
Answer Applies to: New York
Replied: 9/8/2015
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