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How do I Legally Protect myself if I divorce...
      #210363 - 03/15/07 12:04 AM

I'll keep this as brief as I can. I'm seriously considering a divorce, it's beyond repair in my opinion. We've been married for over 20 years. I make most of the money. 2 kids, one is 20, the other will be 18 soon. My wife has serious issues with being responsible with money for all of our married life and every other part of our life sucks. Been the counseling route, I've tried and tried to talk and work things out to improve our situation to no avail (for many years).

She has done banking, but mostly daycare for many years. She doesn't want to go back to work, yet we need the money! Our financial picture is not great, but it's going to get bad without more income and I'm doing all I can do with a full time job and 2 part-time businesses. She has been oblivious to everything I've tried and she ignores the situation. We have not discussed divorce. I've kept my mouth shut about that and she hasn't mentioned it. I don't think she is considering it or suspects I am since I don't talk about that type of thing with her and she hasn't said anything or led me to believe she could be considering it.

Basically, I can't stand it anymore and I want out as quickly and painlessly as possible. I expect I'll get screwed over no matter what I do since we live in california, but I want to minimize that as much as possible. I've done as much reading on the web as I can but I need to ask some questions. I realize that there are no absolutes here, and I am ready to get some legal counsel very soon, I just want to be prepared. Here are my questions.

Our main asset is our home and I have a retirement account. Other than that, I'm not too worried about personal property, I don't have a lot that I'd fight over so I'm not worried a lot about working that out.

1) As far as getting counsel before the cat is out of the bag, am I risking future legal problems? In other words, if she gets a lawyer and fights back, can they find out I had counsel, and when I did? And will this jeopardize my situation in any way? Basically, I want to legally prepare to protect myself in the best way I can before anything starts. If something is better to occur before the divorce process starts, I want to try and do that and I don't want to get into trouble for doing that. I know some things involving money movement can get you into trouble, but I really have nothing anywhere to move around and I don't plan on doing that.

2) With the kids over 18 and one moved out, will she be able to fight for anything there?

3) What's the worst case she can get in spousal support percentage wise? And how long should I expect to pay that? My rough estimate is that I could make it on my own if I had to pay her 50%. Any more than that, and it would be tough. But if I can't keep at least half my money, how the heck can I get a divorce?

4) Splitting major assets - I will work this with the lawyer, but as far as I am concerned, she can have the house if she can get a new loan for it (I don't see how though). Otherwise, I'd insist on the sale in the divorce if that's possible. She could have the proceeds after payment of any shared debts as far as I'm concerned. I'll try to protect my retirement and hopefully use letting her have the house as bargaining chip there. Any tips here? If I can somehow get the house sold before starting, would that be risky from a legal standpoint?

5) Protecting my stuff - I have a room with all my computer, business and hobby stuff. She is one hell of a spiteful person, I fear that if I brought up the subject before moving out, that she'd completely thrash my stuff. If I moved just my own personal stuff and my stuff in the one room out while she was away, and I moved out, would that put me at any legal risk with the divorce process? I would not take the family computer or any furniture, anything. Just stuff that is mine and only I use. We could divide up the other stuff later.

Anyway, I'll save further questions for later and for the lawyer. These are my biggest concerns. My hope is to get this figured out and move out this summer when she's away on a trip and get papers served after she's back.

Any answers, tips, hints, etc. will be very much appreciated. Thanks.


Edited by JBGOOD (03/15/07 12:05 AM)

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Re: How do I Legally Protect myself if I divorce.. [Re: JBGOOD]
      #210763 - 03/16/07 12:29 AM

1) I don't believe there is any penalty to seeking guidance and advice prior to making any decisions or filing any documents. I would definitely caution you against doing anything with marital assets though....except to secure YOUR share of the assets. In other words, you could go to the bank and withdraw exactly 50% from any accounts and move them into accounts in your name only. Thus you take what is yours and protect it from being taken by her, but you don't touch what she is entitled to have either. You might also want to close any joint credit accounts to ensure no more debt is run up.

2) If the children are adults, then there's nothing to fight over. They may choose to live where every they wish and you are under no obligation to provide support for them.

3) There is no set rate for spousal is entirely up to the judge's discretion. I can't imagine it being 50% of your income, but if she has done daycare type of work, then she's been out of the regular work force for a while and presumably she will need time for retraining or education to get herself employable at more than a minimum wage job. She would be eligible for spousal support for up to half of the duration of the marriage....10+ years, but may not receive it all.

As for the house, you are each entitled to 50% of the marital assets. If you let her have the house, then you need to receive an equal portion of the other assets equal to the market value of the home minus the outstanding mortgage and any selling costs.

If you do let her keep the home, you definitely want her to refinance in her own name, otherwise you'd be on the hook still for the mortgage. With her current job situation, it doesn't sound like she'd make an attractive loan candidate, so I doubt she would be able to secure her own loan. You'd be better off selling it and dividing the proceeds.

5) As for your "stuff"....other than your clothing and any gifts that you've received...all "stuff" that was purchased during the marriage is JOINTLY held between you two. Unless your computer that you call yours was purchased with funds other than marital funds (and your earnings are half hers), then the computer is "ours", not "yours" and is subject to division of assets. If you want your computer, that's fine...just be prepared to allow her an asset of equal value. That's kind of how it works....your column and her column. Each time you add something to your column, you have to put an equal item into her column. You don't go by purchase price, but current market value....which isn't much for some electronic/computer equipment.

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Re: How do I Legally Protect myself if I divorce.. [Re: Melody]
      #210817 - 03/16/07 09:58 AM


Thank you so much for your detailed response! Very much appreciated. I'm certainly not trying to be a jerk about the whole thing with here. If I were to move out suddenly (and I don't really know I'd do it like that), The only thing I'd take is stuff that is considered mine. I know she'd not argue over it, but a lot of it is for my side businesses that she does not participate in or have an interest. My biggest concern there is her freaking out and trashing it all while I'm at work or out of the house. She is completely unpredictable in that way. Other than my retirement and equity in the house, we have no savings or other assets to divide up. Checking account is pretty much drained each month after bills and expenses. I'd leave pretty much everything in the house except for my stuff in the home office, my clothes and a items that were mine before we married. She'd have way more than 50%, probably over 90% of the stuff still in the house until we worked that part out.

Beyond some of my personal stuff, one of my biggest fears has been, what if I had to move out and still pay the mortgage payment until we could sell? Whould that be considered part of the spousal support?

Another thing I failed to mention was, that her parents live with us. They pay rent & food, they are self suffucient income. We are under no type of written agreement, they are basically boarders that are family. Could that cause me any issues financially or legally? Or if the divorce happens and we go to sell the house, can we just tell them they need to find another place?

I worry about this because my wife is extremely manipulative. I just want to head off any problems that may come up, or at least understand what I may be facing before I make any decisions or take any actions.

I will be seeking legal advice from a professional before I set anything in motion, but from what it sounds like, it really won't matter when or how I tell her, or even if she surprised me and beat me to the punch, it's going to pretty much be the 50/50 on property and with the court deciding actuall amounts of money for support. I would expect finances would get worse before getting better once the process starts, but I've been afraid to make any move because if they made me pay for everything and move it, I'd have no way to live. I would hope the court would take all of that into account.

Thanks again, I appreciate any help you or others can offer until I get an appointment with a lawyer.

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