Long Divorce with all assets inherited

[Chris Butchart]

Jurisdiction

New York

My brother lives in Buffalo New York. He inherited my parents estate. The Estate was composed of two houses a car and approximately $100,000 in cash. He then took out a home equity loan of $50,000 on the house which had no mortgage. The total estate was about $400,000. He therefore has a remaining worth of a hour valued at approximately $230,000 minus the $50,000 home equity loan and minus closing fees of 15% for a balance of $153,000 in a declining real estate market.
I was told his wife has no right to the house because it was inherited. She has occupied the house, changed the locks and removed all of the inherited assets including my deceased parents personal items.
The attorney filed a motion after to evict her and file a default divorce. Now, about 2 months later he said that she has hired and attorney and her has to file for a Judicial intervention. Her attorney ahs taken the stance that they will continue to litigate until the judge makes an order
She hired an attorney on a $1,000 retainer with the notice that she will pay out of her divorce proceeds.
My questions are:

1.At this point he has to wait 45 days for the judge and at that time the only thing that is going to happen is that he is going to awarded the house after another 45 days of equity loss due tot the housing market. Why would we spend another 45 days of attorney fees if the endpoint is already known?

2. Why would an attorney take her case on for her knowing everything is inherited?

3. If my information is not correct can she be awarded attorney fees even though the only assets are inherited.

4. Why am I paying for an attorney at this point since I was already told that they are not going to mediation or settle and are going to the judge?

5. Should I dismiss the attorney at this point since attorney fees are going to accrue for 45 days and or have him apply for a public defender because what is the point of having an attorney since it appears that the end point is the same no matter what?

 

[justblue]

My brother lives in Buffalo New York. He inherited my parents estate. The Estate was composed of two houses a car and approximately $100,000 in cash. He then took out a home equity loan of $50,000 on the house which had no mortgage. The total estate was about $400,000. He therefore has a remaining worth of a hour valued at approximately $230,000 minus the $50,000 home equity loan and minus closing fees of 15% for a balance of $153,000 in a declining real estate market.
I was told his wife has no right to the house because it was inherited. She has occupied the house, changed the locks and removed all of the inherited assets including my deceased parents personal items.
The attorney filed a motion after to evict her and file a default divorce. Now, about 2 months later he said that she has hired and attorney and her has to file for a Judicial intervention. Her attorney ahs taken the stance that they will continue to litigate until the judge makes an order
She hired an attorney on a $1,000 retainer with the notice that she will pay out of her divorce proceeds.
My questions are:

1.At this point he has to wait 45 days for the judge and at that time the only thing that is going to happen is that he is going to awarded the house after another 45 days of equity loss due tot the housing market. Why would we spend another 45 days of attorney fees if the endpoint is already known?

2. Why would an attorney take her case on for her knowing everything is inherited?

3. If my information is not correct can she be awarded attorney fees even though the only assets are inherited.

4. Why am I paying for an attorney at this point since I was already told that they are not going to mediation or settle and are going to the judge?

5. Should I dismiss the attorney at this point since attorney fees are going to accrue for 45 days and or have him apply for a public defender because what is the point of having an attorney since it appears that the end point is the same no matter what?

You're brother should ask his attorney any questions he may have. this is his case...not yours. The attorney works for your brother even though you may have paid the fees. You don't have the right to fire the attorney as you are not the client.

 

[Chris Butchart]

You're brother should ask his attorney any questions he may have. this is his case...not yours. The attorney works for your brother even though you may have paid the fees. You don't have the right to fire the attorney as you are not the client.

My brother can not handle his affairs. I have a power of attorney to handle all of his affairs therefore the attorney works for me.

 

[adjusterjack]

In numbered paragraph 1 you refer to "he" and "we." Since this is your brother's divorce and not yours I'll assume that "we" also refers to your brother.

In numbered paragraphs 3, 4, and 5, you use the word "I" (first person singular) which would typically mean you are referring to yourself. Again, since this is your brother's divorce I'll assume you are referring to your brother.

Whether it's you or he, the answers will be the same.

1.At this point he has to wait 45 days for the judge and at that time the only thing that is going to happen is that he is going to awarded the house after another 45 days of equity loss due tot the housing market. Why would we spend another 45 days of attorney fees if the endpoint is already known?

Because the endpoint is not already known. She may be awarded a monetary settlement from her share of the equity in the house. Until then, the status quo remains.

Whether any attorney fees are incurred during the 45 days depends on whether the attorney performs any work.

2. Why would an attorney take her case on for her knowing everything is inherited?

Because her attorney knows the difference between "sole and separate interest" and "marital interest." You and your brother apparently do not. She likely has a "marital interest" in the equity in the house which means your brother will either have to come up with the cash to pay her or the judge will order the house sold so the proceeds can be divided.

3. If my information is not correct can she be awarded attorney fees even though the only assets are inherited.

Whether she gets awarded attorney fees has nothing to do with the status of the assets.

4. Why am I paying for an attorney at this point since I was already told that they are not going to mediation or settle and are going to the judge?

Your brother is free to dismiss the attorney and go forward without one. Only he can decide if that is wise or not.

5. Should I dismiss the attorney at this point since attorney fees are going to accrue for 45 days and or have him apply for a public defender

Public defenders are available for criminal cases, not civil/divorce cases. If you meant pro-bono (no fee) attorneys for a divorce you'll have better luck capturing a unicorn or leprechaun.

what is the point of having an attorney since it appears that the end point is the same no matter what?

Because the end point isn't "the same no matter what."

 

[Chris Butchart]

In numbered paragraph 1 you refer to "he" and "we." Since this is your brother's divorce and not yours I'll assume that "we" also refers to your brother.

In numbered paragraphs 3, 4, and 5, you use the word "I" (first person singular) which would typically mean you are referring to yourself. Again, since this is your brother's divorce I'll assume you are referring to your brother.

Whether it's you or he, the answers will be the same.



Because the endpoint is not already known. She may be awarded a monetary settlement from her share of the equity in the house. Until then, the status quo remains.

Whether any attorney fees are incurred during the 45 days depends on whether the attorney performs any work.



Because her attorney knows the difference between "sole and separate interest" and "marital interest." You and your brother apparently do not. She likely has a "marital interest" in the equity in the house which means your brother will either have to come up with the cash to pay her or the judge will order the house sold so the proceeds can be divided.



Whether she gets awarded attorney fees has nothing to do with the status of the assets.



Your brother is free to dismiss the attorney and go forward without one. Only he can decide if that is wise or not.



Public defenders are available for criminal cases, not civil/divorce cases. If you meant pro-bono (no fee) attorneys for a divorce you'll have better luck capturing a unicorn or leprechaun.



Because the end point isn't "the same no matter what."

 

[army judge]

My brother can not handle his affairs. I have a power of attorney to handle all of his affairs therefore the attorney works for me.

Did you or did your brother hire the attorney?

By the way, a POA isn't a court order.

No one has to take heed, much less abide by a POA.

If you possessed a court order making you the legal guardian of your sibling, that's a horse of an entirely different color.

2. Why would an attorney take her case on for her knowing everything is inherited?

Why, you wonder?

Because she might have retained a very savvy and savage attorney capable of delivering her the justice she seeks.

Don't judge or disparage others who do what you wouldn't, rather fear them!!!

 

[Chris Butchart]

Did you or did your brother hire the attorney?

By the way, a POA isn't a court order.

No one has to take heed, much less abide by a POA.

If you possessed a court order making you the legal guardian of your sibling, that's a horse of an entirely different color.

My brother requested the power of attorney and was written by attorney and approved by my brother.
He has made it very clear to the attorney that he wants me to handle all of his affairs

The house is not marital it was inheritance. It is titled in his name only. By New York law inherited assets are not considered "marital assets" This was verified by my attorney.

By the way for the previous poster I was NOT inferring that I wanted to "fire" my attorney.


I was simply asking since there are no assets other than a house that was inherited what is the sense to rack up attorney fees arguing about a moot point?.


Discovery has already been completed to their satisfaction. He has offered everything else besides the home; all furniture and fixtures, and one of their cars. The statue also awards her $500 a month for 18 months in alimony for a three year marriage. There is NOTHING else besides the home.

His wife said she will not accept any offers from my attorney. She wants EVERYTHING including her credit cards paid off which she continues to charge. She has occupied the house, changed the locks and ignored all eviction notices. She is being completely unreasonable and her attorney should know that

Is it not unethical for HER attorney to advise her to continue this knowing full well that he has no other assets other than the inherited home and the judge may order less than he is offering?

It is going to judicial intervention. In my opinion there is nothing more for them to discuss.

 

[adjusterjack]

The house is not marital it was inheritance. It is titled in his name only. By New York law inherited assets are not considered "marital assets" This was verified by my attorney.

However, his income/earnings ARE a marital asset. If he's using his income/earnings to make the HELOC payments, then she does have a "marital interest" in the equity and could be entitled to be paid for it. Ask your lawyer about that.

His wife said she will not accept any offers from my attorney. She wants EVERYTHING including her credit cards paid off which she continues to charge. She has occupied the house, changed the locks and ignored all eviction notices. She is being completely unreasonable and her attorney should know that

Unfortunately, that's just your opinion. Her attorney works for her to get the maximum settlement possible under the law and it's up to the judge to decide which of her claims are valid.

Is it not unethical for HER attorney to advise her to continue this knowing full well that he has no other assets other than the inherited home and the judge may order less than he is offering?

Nope, not unethical. His ethical duty is to her. As long as she's not complaining, there's nothing unethical going on.

 

[Red Kayak]

Should I dismiss the attorney at this point since attorney fees are going to accrue for 45 days and or have him apply for a public defender because what is the point of having an attorney since it appears that the end point is the same no matter what?

Are you familiar with the phrase "penny wise, pound foolish"?

She has a lawyer. It's in your brother's best interest to keep his lawyer unless he wishes to replace that lawyer with another one. YOU cannot represent your brother, and he is not competent to handle this himself.

 

[zddoodah]

You appear to be asking anonymous strangers on the internet -- many of whom are not attorneys and none of whom (AFAIK) are family law attorneys in New York -- who have virtually no information about your brother's case to second guess the lawyer you hired to represent your brother. Do you really think that's a good idea?

If you're not happy with the representation being provided by the attorney, discuss it with him and/or seek a second opinion from another local attorney.