Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.
“I married my husband when he was incarcerated in a NY State Prison. Is he entitled to any assets I acquire while he is incarcerated? Specifically I am looking to purchase a home with a partner who is concerned with my husbands legal right to my assets since we are legally married. He was incarcerated before I married him and will remain incarcerated for at least the next 8-13 years. What are his rights? Any assistance is greatly appreciated.”
Question: New York is an equitable distribution state. As such, he would be entitled to his fair (equitable) share of any property acquired during marriage. I cannot say exactly what his share of the house would be, but absent some agreement to the contrary, his share would be some amount greater than zero dollars. You might think about entering into an ante-nuptial agreement with your spouse to define exactly the circumstances surrounding the house purchase, and if he would voluntarily agree that he owns no part of the house. Without a written agreement from your incarcerated spouse, you are taking a chance that he will delay the sale of the property in the future, or make a claim on the equity of the home. I suppose either of these situations will not arise if you absolutely trust your husband and are “together” forever.
