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Ely
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 101377
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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my husband of 25 yr left me this weekend and spent the weekend

Resolved Question:

my husband of 25 yr left me this weekend and spent the weekend with his brother (a lawyer) he wants me to go and stay at my fathers and he wants to stay in the house (no kids at home) the house is in his name (it was left to him from his grandpa). We have lived here for the last 25 years
Submitted: 7 years ago.
Category: Family Law
Expert:  Ely replied 7 years ago.
Hello,



My name is XXXXX XXXXX I am one of JustAnswer's attorneys. I'll be helping you resolve your matter today.



I am sorry for your situation. What is your question, exactly?



Customer: replied 7 years ago.
if i leave my house and we sperate or divorce will leaving at this time hurt me?
Expert:  Ely replied 7 years ago.
It won't either way. You live in a common law property state. Therefore, your marital property will be divided thusly --

Separate property and debt is property that is generally:


1. Only your name appears on the account, title, ownership, and or registration document; or

2. Acquired by gift or will or similar legal way by spouse during marriage; or

3. Declared as such by prenup or postup; or

4. Traceable property purchased by one spouse only; or

5. Tort Recovery for personal injury, but not medical expenses or loss of earning capacity.




If the property falls into separate property, it is the property of THAT party, but the other party is entitled to a “fair and equitable portion” of your separate property. “Fair and equitable portion” means generally that two-thirds go to the higher wage earning party and one-third to the other, lesser earning party.



Community Property and debt is everything else, including but not limited to:


1. Income from BOTH parties; or

2. Declared as such by prenup and postup; or

3. Gift from one spouse to another; or

4; All titled and non-titled property gathered during marriage.



Community property is AUTOMATICALLY ASSUMED unless proven to be separate property by a party “by a preponderance of the evidence.” Community property and debt is split 50/50. In case of titled assets such as homes, cars, etc., it usually is awarded to one party and that party is ordered to make an “equalizing payment” to the other party. For example, a car worth $10k will be given to the wife but the wife is ordered to make a payment of 5k to the husband. Time to make the payments or payment plans are a norm in such a situation. Equalizing payments can also be ordered if one party argues a “fault.” Generally, one party simply alleges irreconcilable differences. However, most states retain grounds for divorce where one party alleges fault when divorcing, such as neglect, assault, affair, etc, and because of this, the Court can award that party additional equalizing payments.




Accrued or vested retirement benefits are community property. This means they need to be divided in a divorce. Retirement benefits that fall under community property include military pensions, veteran's educational benefits, ERISA funds, IRAs, Keoghs, Employee Stock Option Plans (ESOPS), 401K and 403K plans, etc. Certain retirement benefits are not classified as community property. They include: Social Security payments, Compensation for military injuries, and Worker's compensation disability awards.

There are two options for dividing retirement benefits: (1) the present-day valuation buy-out, and (2) division into two accounts. In the former, the spouse without the retirement benefits takes the present-day value of his or her interest in the retirement benefit and trades it for something else of equal value, such as cash or other assets. Note - stock options and pension plans where a person must work for a certain number of years may be worth more than you think. A Qualified Domestic Relations Order (QDRO) will be required to transfer a share of retirement funds from the spouse participating in the retirement plan to the other spouse, and is usually included in the final divorce papers.


Of course, if both parties come to an agreement about marriage property regardless of the rules above, the Court will most likely endorse said agreement in interest of post-divorce harmony. The above rules only come into play if the parties cannot agree on splitting of assets.



It is also common for parties to agree to 95% of the split, but then ask the Court to make a decision in regards XXXXX XXXXX 5% that cannot be agreed upon.



Finally, in a hotly contested divorce, either party can request a jury. Although a lawsuit (and yes, divorce is a lawsuit) is automatically set up to be heard as a bench (Judge) trial, either party can request a jury trial. Your attorney can advise you on which is best in your case. For example, for a party whose arguments are based more on statute and case-law, a Judge is more preferable. A party who is using emotion heavily for their strategy, or is alleging fault, a jury can sometimes be more beneficial, since while jury is SUPPOSED to decide the matter by law only, many times jurors bend the law to come to their conclusions.



Best of luck in your matter. I'm here if you need any more clarification or follow up info.



I hope you found my answer helpful, and if so please click on the ORANGE ACCEPT button for my answer. This is the only way for me to get credit for my work. Understand that when you put in your payment info, you still have not paid until you press ACCEPT.



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Customer: replied 7 years ago.
so the house, in my husbands name that we got while married, he got the house about 7 yrear ago, but have lived here 25 is considered community property?
Expert:  Ely replied 7 years ago.
Not quite clear - house was before/after marriage, and in his separate or joint f?unds
Customer: replied 7 years ago.
in his name, inherited from his grandfather in 2003
Expert:  Ely replied 7 years ago.
Have you spent any of your money, or joint money with your salary in the joint money, for upkeep/betterment of the house? And who makes more money now?
Customer: replied 7 years ago.
yes i have spent my money, joint money and he now makes more money because i lost my job in 2007
Expert:  Ely replied 7 years ago.
Ok, based on this, you SHOULD get "“fair and equitable portion” of the house, which would be 1/3 or so of payment of its worth allotted to your half of the cash division.

Best of luck in your matter. I'm here if you need any more clarification or follow up info.



I hope you found my answer helpful, and if so please click on the ORANGE ACCEPT button for my answer. This is the only way for me to get credit for my work. Understand that when you put in your payment info, you still have not paid until you press ACCEPT.



There is no fee for follow up questions should you wish to continue in this thread.



Remember, sometimes the law under which your situation falls does not give you the outcome or the choices you wanted - please understand that this is not the attorney's fault, but the way of circumstance.



There might be a delay between your follow up questions and my answers because I may be helping other clients or taking a break.



Leaving a bonus and positive feedback is not required, but doing so is certainly appreciated!



You can always request me for a future legal consultation through my profile at http://www.justanswer.com/profile.aspx?PF=7286322&FID=7 If you do this, make sure to being the question with “This Question is for Eli…”














Ely and 8 other Family Law Specialists are ready to help you
Expert:  Ely replied 7 years ago.
I saw that you have viewed my answer but did not accept it. Did you have more questions? May I clarify anything?
Customer: replied 7 years ago.
can my husband make me leave?
Expert:  Ely replied 7 years ago.
No. He can't just "make" you leave. He'd have to file for divorce, and then put in a motion for temporary orders and ask that you leave the house for the duration of the divorce. But it's up the Judge to decide and to grant this, and b/c you are unemployed, it's likely he'll make HIM leave for the duration of the divorce, even if in the end he gets the house. That's why likely, after talking to his brother/lawyer, he is just trying to get you out voluntarily, knowing that he wouldn't be too successful in court.

Best of luck in your matter. I'm here if you need any more clarification or follow up info.



I hope you found my answer helpful, and if so please click on the ORANGE ACCEPT button for my answer. This is the only way for me to get credit for my work. Understand that when you put in your payment info, you still have not paid until you press ACCEPT.



There is no fee for follow up questions should you wish to continue in this thread.



Remember, sometimes the law under which your situation falls does not give you the outcome or the choices you wanted - please understand that this is not the attorney's fault, but the way of circumstance.



There might be a delay between your follow up questions and my answers because I may be helping other clients or taking a break.



Leaving a bonus and positive feedback is not required, but doing so is certainly appreciated!



You can always request me for a future legal consultation through my profile at http://www.justanswer.com/profile.aspx?PF=7286322&FID=7 If you do this, make sure to being the question with “This Question is for Eli…”














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