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My home was gifted to my brother and I from my mother. I live in it with her my wife and kids. Can my wife take it in a divorce?

Huntington Station, NY |

My wife has been telling everyone she is a victim of verbal abuse. Can she use this to get my share of the home? My sons want to live with me. My wife my suffer from depression, anorexia , and suicidal tendencies.

Attorney Answers 3


Your wife can't take the house in a divorce, however she might be entitled to some part, if any, of the appreciation since the time of the gifting or marriage, whichever occurs last. It really would depend on how the expenses were paid and whether marital money was used to improve the house or pay the mortgage, taxes or other house related expenses. Your wife's allegations of verbal abuse will not give her the house, however she could apply for an order of protection. An order of protection could put you out of the house or allow your wife to call the police to have you arrested the next time you have an argument. You should have a consultation with an experienced Family Court attorney so that you may be advised of your rights since this answer is not sufficient to protect your interests.

Advice on this forum is for informational purposes only and should never be mistaken as a substitution for legal advice. Answering a question does not create an attorney client relationship. If you need legal advice, you should consult or retain legal counsel.

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No, if her name is not on the title and marital funds have not been used to expand the premises, for example, she has no successful claim to such separate property. As to your queries about taking your son away, there would have to be changed cirumstances compelling enough to do so and also that she would be the superior parent to have the children live with her so far as the best interest of the children is concerned, and that would be determined in court. You might want to have a consultation with a family/matrimonial attorney soon if you are anxious.

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Counsel who answered this question are positively correct.

That being said before i would make judgments on the question. I would say to a potential client get me the following documents:
1. current deed
2. Current mortgage
3. The deed of the property where you took ownership.
Information on the payment of the mortgage, who paid it did the funds come out a joint bank account?
I would need to know when the house was acquired before or during the marriage?
What proof do you have that your mom gifted it to you alone or even that it was a gift at all
What improvements were made to the home?
Lastly you mention her claim of abuse.
That is not generally part of any division of marital property.

As for custody that may or may not be a factor. The fact that your sons want to live with you depends on their age and many other factors for custody.

Please seek direct advice of local attorneys in your area.

Good Luck

I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in NY so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction. IF YOU FOUND THIS ANSWER "Helpful" or " The Best Answer" YOU CAN THANK ATTORNEY MARGOLIS BY MARKING IT SO because Avvo awards the attorney points.

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