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Ask Barrister Your Own Question
Barrister
Barrister, Attorney
Category: Estate Law
Satisfied Customers: 33794
Experience:  15 yrs estate law, real estate. Wills/Trusts/Probate
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I live incalifornia n I'm going thru divorce. Last year

Customer Question

Hi I live incalifornia n I'm going thru divorce. Last year still married my ex got inheritance and we deposited into joint savings acct. since its commingled am I entitled 1/2? He's also threatening to not pay alimony which is $900 bc it's coming out of his own acct which includes inheritance Is that possible?
Submitted: 1 year ago.
Category: Estate Law
Expert:  Barrister replied 1 year ago.
Hello and welcome! My name is ***** ***** I will try my level best to help with your situation or get you to someone who can.
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As a general rule, any inheritance is considered the separate property of the person who receives it and it is not subject to any division in a divorce.
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However, the exception is when the recipient makes it community property by depositing it into a jointly owned bank account. It then becomes commingled, as you are aware, and becomes a marital asset subject to division. So here, you would be entitled to half the proceeds.
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As for alimony, that is not up to husband, but rather a judge and determined by a host of factors the judge looks at and then makes a ruling on whether alimony is ordered or not.
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This is the list of factors in CA:
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In ordering spousal support under this part, the court shall consider all of the following circumstances: (a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following: (1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment. (2) The extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties. (b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party. (c) The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living. (d) The needs of each party based on the standard of living established during the marriage. (e) The obligations and assets, including the separate property, of each party. (f) The duration of the marriage. (g) The ability of the supported party to engage in gainful employment without unduly interfearing with the interests of dependent children in the custody of the party. (h) The age and health of the parties. (i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party. (j) The immediate and specific tax consequences to each party. (k) The balance of the hardships to each party. (l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a "reasonable period of time" for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court's discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties. (m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award. (n) Any other factors the court determines are just and equitable. (California Code - Sections: 4320, 4324, 4330)
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So as you can see, a lot goes into an alimony decision and the judge has to weigh each applicable factor when making a decision.
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thanks
Barrister
Customer: replied 1 year ago.
My ex said his lawyer told him its not a commune property n even though money went to joint savings acct. is that correct
Expert:  Barrister replied 1 year ago.
There is a legal doctrine called "tracing" that he is likely talking about which says that if one party can show that they deposited a separate asset into a joint account, but didn't intend for it to become a marital asset, then they can pull it back out.
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But the presumption here is that if he put it in a joint account, the intent was for it to become a marital asset because he could easily have opened another account in his name solely.
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So he can argue that, but since he deposited it last year and presumably additional marital money has been deposited since then, he is going to have an uphill battle trying to claim it is still his separate funds..
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thanks
Barrister
Customer: replied 1 year ago.
Is the lawyer giving wrong info? Shes suppose to a good lawyer
Customer: replied 1 year ago.
So if need to attain lawyer can my ex pay the legal fee since he makes 3x more than I am n I can't afford one
Expert:  Barrister replied 1 year ago.
No, she is obviously going to argue that this is a separate asset and shouldn't be divided, that is what good lawyers do for their clients. But if you have an attorney, he or she should be arguing that the presumption is that it is a marital asset since he intentionally deposited it into a joint account and commingled it and never took actions to try and separate it until the divorce came up.
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But you will have to defend against his allegations or the judge might rule in his favor. You have to fight for your rights in a situation like this.
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You can ask the judge to order him to pay or see if the attorney will take the case on a contingency fee basis or agree to wait to be paid until after.
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thanks
Barrister
Customer: replied 1 year ago.
Sorry one last question , what kind of proof do I need to prove its marital property? Bank stmts.?
Is it worth to fight for it when burdens on me
Expert:  Barrister replied 1 year ago.
The fact that it was deposited into a joint account provides the presumption that it was intended to become marital property. So proof of the status of the account is what you need.
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But it is the other way around...the burden is on him to prove it is not marital funds since it is in a joint account..
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thanks
Barrister