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P. Simmons
P. Simmons, Attorney
Category: Estate Law
Satisfied Customers: 33069
Experience:  12+ yrs. of experience including estate law.
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When my ex-husband and I separated, he took all the money in

Customer Question

When my ex-husband and I separated, he took all the money in savings and put it in a trust account, this was four years ago. I attempted three years ago to get him to sign a settlement dividing the funds, but he refused stating "He doesn't want to pay alimony" which he was ordered to do. Is there any way I can file a motion with the court, request a hearing and force the judge to divide this money or do we have to go to trial? We have been divorced since 2012 and the money is just sitting there..
Submitted: 1 year ago.
Category: Estate Law
Expert:  P. Simmons replied 1 year ago.
Hi, My name is Philip. I am an attorney with over 16 years experience. Hopefully I can help you with your legal question.
Sorry...I do not understand what you mean by
file a motion with the court, request a hearing and force the judge to divide this money or do we have to go to trial?
If you file a motion and request a hearing, that, in and of itself, necessitates a trial. You need a trial to allow the court to decide this issue.
Was this not addressed in the divorce?
Customer: replied 1 year ago.
Our divorce was a bifurcation so All the money issues have not been resolved. I was told by my attorney the judge who handled this case is "not for awarding long term alimony" so my fear is if we do go to trial the judge will modify it - we were married 24 years, he makes 90,000.00 a year with the DWP I make 10,000.00 a year as a caregiver and am now 58 years old. I just want to divide the trust account is that possible without a trial and with my ex refusing to sign a settlement?
Expert:  P. Simmons replied 1 year ago.
Ahh...yes...CA allows that.
So you are not yet done...
If your ex refuses to agree with you? Then it is NOT possible to avoid trial.
Lets back up...
a divorce can either be contested or not contested.
Uncontested; Now the fastest, (and by far the least expensive) way to get a divorce is if you can agree on the terms. If you can agree on "who gets what" there is not a need for attorneys...this will cut the costs to a very small amount (court fees)
Contested; if you can not agree, this is a contested divorce. To proceed you need an attorney or need to act as your own attorney (very bad idea). Here the parties present evidence to the court on "who gets what" and the court decides. This takes longer and involves attorney fees for both sides.
You can accomplish this...but you need to file a motion with the court and they go through the contested trial process....or at least start the process.
Now, my experience is that the VAST majority of all divorces settle...at some point. The smart one do so early. The rest? They throw money at the lawyers until they realize they are wasting money...then they settle.
What you are describing, you would do well to have your file the motion to start the process for a contested divorce (the property side of the proceeding)...perhaps when your ex realizes how much money this will cost to fight he will be reasonable and settle...but unless or until that happens, to proceed forward you need to use the court.
This is the part of my job I don't like...when the law is not in favor of my customer. I wish I could tell you that there was some way available to force him to settle...but I can only provide you information based on the law so that you can act on the best available information to you...I wish I had better news, but can only hope you recognize and understand my predicament and don't shoot the messenger. I'm sorry!
Please let me know if you have more questions. I am happy to help if I can. Otherwise, please rate the answer so I may get credit for my work.
Customer: replied 1 year ago.
Do you happen to know what the chance are of the judge modifying my alimony if we do go to trial? It is my understanding that tin a long term marriage (married 24 years ) alimony is awarded for at least one half the length of the marriage so I have been collecting for four years and therefore have until 2023 or until he retires? Also I was forced to sell the family home in a short sale which of course trashed my credit so I was unable to rent an apartment, I currently rent a room from a man, could he claim "co-habitation" to reduce my alimony?
Expert:  P. Simmons replied 1 year ago.
YOu need more than just time to get alimony. Certainly that is one of the factors. But there are SEVERAL other factors You can see the factors herehttp://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=04001-05000&file=4320-4326The court has wide discretion on this matter...and can craft the support order to meet the needs of the circumstances. HOWEVER every case is different. If you are looking for a "general rule" it is that if his income or income potential is significantly more than your income or income earning potential and this is because of the marriage? That is a case where alimony is awarded. If you/your lawyer can demonstrate this to the court? I would expect the court to award alimony. And yes, if your credit was adversely impacted by the marriage and that is harming your ability to earn income? That would be a basis to award alimony. You living with someone else is not a reason to reduce or prohibit alimony.Please let me know if you have more questions. I am happy to help if I can. Otherwise, please rate the answer so I may get credit for my work.
Expert:  P. Simmons replied 1 year ago.
Follow up on this, I see you had a chance to review the answer. Experts like myself only get credit when the customer rates the answer. Please let me know if you have more questions. I am happy to help if I can. Otherwise, please rate the answer so I may get credit for my work.

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