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ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Family Law
Satisfied Customers: 11710
Experience:  Licensed Texas General Practice Attorney
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My husband and I live separately. We have a joint account most

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My husband and I live separately. We have a joint account most major items are underboth of our names. We have two children, which live with me. So what are the advantages and disadvantages of getting divorced
Submitted: 3 years ago.
Category: Family Law
Expert:  ScottyMacEsq replied 3 years ago.

ScottyMacEsq :

What about a house, car, etc... Are these owned and held in both of your names?

Customer :

House my name. one car his the other both

Customer :

house was suppose to go back under both once we got refianced but since he is not paying I chose not to do this.

ScottyMacEsq :

Were they acquired during the marriage (the house and cars) or before?

Customer :

during marriage.

ScottyMacEsq :

Idaho is a "Community Property" state. Community property is all property that was acquired during the marriage. This property will be divided equally (50-50) by the court if the parties are not able to come to an agreement.

Unless otherwise agreed to by the parties, the community property must be assigned by the court in such proportions as the court, from all the facts of the case and the condition of the parties, deems just, with due consideration of the following factors: (a) Unless there are compelling reasons otherwise, there shall be a substantially equal division in value, considering debts, between the spouses. (b) Factors which may bear upon whether a division shall be equal, or the manner of division, include, but are not limited to: (1) Duration of the marriage; (2) Any antenuptial agreement of the parties; provided, however, that the court shall have no authority to amend or rescind any such agreement; (3) The age, health, occupation, amount and source of income, vocational skills, employability, and liabilities of each spouse; (4) The needs of each spouse; (5) Whether the apportionment is in lieu of or in addition to maintenance; (6) The present and potential earning capability of each party; and (7)Retirement benefits, including, but not limited to, Social Security, Civil Service, Military and railroad retirement benefits.

If a Homestead has been selected from the community property, it may be assigned to either party, either absolutely, provided such assignment is considered in distribution of the community property, or for a limited period, subject in the latter case to the future disposition of the court; or it may be divided or be sold and the proceeds divided.

If a Homestead has been selected from the separate property of either, it must be assigned to the former owner of such property, subject to the power of the court to assign it for a limited period to the other spouse. (Idaho Code - Title 32 - Chapters: 712, 903). Now what this means, practically, is that you have to consider all of the assets of the marriage. It does not make any difference whether or not they are actually held in your name, your husband's name, or both, but rather when and how they were acquired. If they were acquired during the marriage, and not because of gift, inheritance, or through a lawsuit for personal injury (and relate to the pain and suffering) then those assets are going to be community property. Now ultimately it depends on what you currently have, how much you're making, how much he's making, whether he's contributing to the children, etc... to determine whether a divorce would be more economically advantageous or not.

ScottyMacEsq :

The advantages are that it will be final. You can get remarried, if you wish, change your name, etc... There is a complete distribution of assets, and any debts that either of you enter into will not be binding on the other party.

ScottyMacEsq :

Now disadvantages is that it's final. If one of you gets a new job that nets you 10x more than you were making before, or you win the lottery, etc... the other party is not going to have a claim to it.

ScottyMacEsq :

If that was done during the separation (while the marriage was still going) then it would be subject to the equitable distribution in divorce).

Customer :

we are not separated. He just chose to leave, go to Texas and go to school. Pays nothing except for car.

ScottyMacEsq :

Ultimately it depends on the state of your assets, how much you are making versus him, etc.. of whether a divorce would actually be advantageous for you or not.

ScottyMacEsq :

In that instance, where he is not contributing to the marriage, it would likely be better, from an economic perspective, to get divorced, because until you do, everything that you make, he will have a claim to half of it.

Customer :

Inculding retirement?

ScottyMacEsq :

Yes, to the extent that retirement was contributed to during the marriage. That is, suppose you have an IRA that's worth $1,000,000, and you contributed $700,000 during the marriage, and $300,000 before. That $300,000 is going to be separate property, and the $700,000 is going to be community property that is subject to the property division, meaning that you'd likely end up with $650,000 and he with $350,000 of that IRA. The longer you go while separated and paying money into the IRA, the more you have to lose, because as soon as you get legally divorced, everything is going to be going to you.

ScottyMacEsq :

Now something to consider: Spousal Support: Not all cases involve support from one spouse to the other. The obligation of one spouse to support the other financially for a temporary or permanent basis is decided on a case-by-case basis as agreed to by the parties or at the court's discretion.

Where a divorce is decreed, the court may grant a maintenance order if it finds that the spouse seeking maintenance: (a) Lacks sufficient property to provide for his or her reasonable needs; and (b) Is unable to support himself or herself through employment.

The maintenance order shall be in such amounts and for such periods of time that the court deems just, after considering all relevant factors which may include: (a) The financial resources of the spouse seeking maintenance, including the marital property apportioned to said spouse, and said spouse's ability to meet his or her needs independently; (b) The time necessary to acquire sufficient education and training to enable the spouse seeking maintenance to find employment; (c) The duration of the marriage; (d) The age and the physical and emotional condition of the spouse seeking maintenance; (e) The ability of the spouse from whom maintenance is sought to meet his or her needs while meeting those of the spouse seeking maintenance; (f) The tax consequences to each spouse; (g) The fault of either party. (Idaho Code - Title 32 - Chapters: 705)

ScottyMacEsq :

If he is living without support now, though, there is very little argument to say that he needs this support.

Customer :

True. I don't really need anything for children either. I pay for nanny now but they are getting older. I work nights at times so. I will probably need for a year or so.

ScottyMacEsq :

Child support and spousal support are two different things. A court would likely award child support (since it is trying to act in the best interests of the children, and not the parents) whereas you can always disclaim any alimony that you might otherwise be entitled to.

Customer :

If he lives out of state, does that mean he gets summer.

ScottyMacEsq :

That is possible. Ultimately it depends on the desires of the parents, and what they want to try to work out. Generally speaking, a generic visitation schedule would have something like him getting summers and every other major holiday.

Customer :

If I keep house just refianced at(NNN) NNN-NNNNbut valued at 170,000 is it or would it be resonable to offer him 20,000 to call it mine

ScottyMacEsq :

That would be reasonable. Note that you can come to a different agreement with him, but if you cannot come to such an agreement, then the court is going to do it for you. Yes, it's reasonable, but if he doesn't want to work with you on this matter (even if you're willing to give him more than he'd get with the judge) then he has that right, and does not have to work with you.

Customer :

would it be better to wait till after the new year for tax purposes. I got 7000 refund last year since I claim him as dependent

ScottyMacEsq :

So ultimately it means that you need to work with him and figure out an agreement, if at all possible, so you have the ability to choose your own destiny, rather than having the court decide it for you.

ScottyMacEsq :

That might be a good idea, if you can honestly claim him as a dependent. But this depends a lot on the facts of the matter, and should entail a trip to your CPA.

Customer :

anything else legally I should consider

Customer :

I have 60,000 in loans he has 30,000 incurred while in marriage is this split as well

ScottyMacEsq :

Not really. Since you're already separated, the court will generally allocate property and custody the way that you've been living, rather than getting creative with the distributions. Rather, to "true up" either side, the court will generally require the transfer of money from one to the other.

ScottyMacEsq :

The court may allocate debt and assets because of these after acquired debts. Again, it's best if you can come up with an agreement with your spouse, rather than having the court make this determination.

ScottyMacEsq :

That being said, you need to contact an attorney in your area that deals with divorce cases. Go to www.lawyers.com or www.legalmatch.com to find an attorney in your area. You should be able to find one that will give you a free initial consultation and better advise you of your rights, any problems with your case, likelihood of success, how courts are treating cases such as yours in your area, and what you should do next.

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please select the "accept" button. If you have already clicked "accept", or if you will in the future, please let me know so I can track these for my own reports and customer satisfaction stats. Thank you, XXXXX XXXXX good luck to you!












ScottyMacEsq, Lawyer
Category: Family Law
Satisfied Customers: 11710
Experience: Licensed Texas General Practice Attorney
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