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AlexiaEsq.
AlexiaEsq., Managing Attorney
Category: Family Law
Satisfied Customers: 13283
Experience:  19+ Years of Legal Practice in Family law matters.
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my husband and I have separated but we were living under the

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my husband and I have separated but we were living under the same house (which we both own) for the last three months. He refused to move-out. As time passed, he became more and more verbally and physically abusive. On june 2, I called the sheriff and they took my husband to jail. I filed a temporary restraining order (along with other orders: child & spousal support, stay-away order, & move-out order) and it was approved by the judge. On 6/26/13, the hearing is scheduled. No divorce/separation filings have taken place. Two of my concerns are that I want to continue getting covered thru his health insurance and I'm expecting a settlement from an auto accident, but I haven't received the money yet....if my husband brings it up to the judge on 6/26/13, can the judge forbid me from using that money? We have been married 19yrs, and most of our debt (including personal loans to family & friends) is suppose to get paid off with this money from the settlement? I have 3 kids (20/18/12 yrs old) and they all live with me. During those 3 months (March, April & May...& now June); my husband only contributed for 2-months to two out of the three cars monthly payment, & May's gas, water, and electricity bill (total $180.00).
Hi, my name is XXXXX XXXXX I thank you for your inquiry. I have been practicing family law for 19+ years and look forward to assisting you. I am working on your answer and will post it shortly. (I am having some intermittent connection problems, so if there is a delay, please know that it will be posted as soon as possible.).

Thanks,
Sincerely,
Alexia Esq.
Customer: replied 3 years ago.

thank you, XXXXX XXXXX to your assistance. :)

Hi again, and thank you for your patience. With regard to your post:

my husband and I have separated but we were living under the same house (which we both own) for the last three months. OK.

 

He refused to move-out. As time passed, he became more and more verbally and physically abusive. On june 2, I called the sheriff and they took my husband to jail. I filed a temporary restraining order (along with other orders: child & spousal support, stay-away order, & move-out order) and it was approved by the judge. Great.

 

On 6/26/13, the hearing is scheduled. For the permanent order?

 

No divorce/separation filings have taken place. Two of my concerns are that I want to continue getting covered thru his health insurance and I'm expecting a settlement from an auto accident, but I haven't received the money yet..OK.

 

..if my husband brings it up to the judge on 6/26/13, can the judge forbid me from using that money? Yes, he can, if the interests of justice require (and certainly until it is established to be what it is contended to be). However, that being said, CA does provide that the award IS to go to the injured spouse, and not shared unless there is very extenuating circumstances. The Court will look at the circumstances and needs of each party as well as the amount of time that has elapsed since the recovery of the damages or the accrual of the cause of action. The Family Court is obligated to look at all other facts of the case ( amily Code section 2603(b)). It is also not permitted to give the non-injured spouse 100% of other community property to “balance” out the injured spouse getting the personal injury settlement or the property that derived from it. So generally speaking, your interest in your injury award will likely be fully protected for you. Keep in mind that lost income from lost time from work MAY be community, if that is part of the settlement and allocated as such - but less likely to be if unallocated lump sum.

 

We have been married 19yrs, and most of our debt (including personal loans to family & friends) is suppose to get paid off with this money from the settlement? Are you sure you want YOUR money alone (ie injury award) to be used to pay of JOINT debts? You may want to review this with your future divorce attorney.

 

I have 3 kids (20/18/12 yrs old) and they all live with me.

During those 3 months (March, April & May...& now June); my husband only contributed for 2-months to two out of the three cars monthly payment, & May's gas, water, and electricity bill (total $180.00).Keep track of what should be community obligations. You can likely recoup that part that you paid that he didn't contribute to but should have.

 

 

I hope this helps! My goal is to provide you with excellent and accurate service – if you feel you have gotten anything less, please reply back, I am happy to address follow-up questions. Kindly rate me "excellent" when you are done. I look forward to assisting you in the future, should you have legal questions.

Sincerely,

Alexia Esq.

Customer: replied 3 years ago.

in regards XXXXX XXXXX section of my question:


"..if my husband brings it up to the judge on 6/26/13, can the judge forbid me from using that money? Yes, he can, if the interests of justice require (and certainly until it is established to be what it is contended to be). However, that being said, CA does provide that the award IS to go to the injured spouse, and not shared unless there is very extenuating circumstances. The Court will look at the circumstances and needs of each party as well as the amount of time that has elapsed since the recovery of the damages or the accrual of the cause of action. The Family Court is obligated to look at all other facts of the case ( amily Code section 2603(b)). It is also not permitted to give the non-injured spouse 100% of other community property to “balance” out the injured spouse getting the personal injury settlement or the property that derived from it. So generally speaking, your interest in your injury award will likely be fully protected for you. Keep in mind that lost income from lost time from work MAY be community, if that is part of the settlement and allocated as such - but less likely to be if unallocated lump sum."



I have been on social security disability (SSD) since 2007, so at the time of the auto accident, (03/07/12), I was not working and receiving SSD...does this make a difference in allowing me to keep the money?


My husband has refused to pay any of my family and our friends back their money (including paying off my dad's funeral services which occurred in september 2012)...this will be the only time I will be able to pay them back...Can I pay them and then request for reimbursement/credit towards any joint debt when the legal separation and/or divorce is filed?


One other thing, health insurance coverage....I am covered thru my husband. Can he remove me from the insurance? Open enrollment is July 2013. Will it make a difference if the restraining order remains in effect or not?


I have been on social security disability (SSD) since 2007, so at the time of the auto accident, (03/07/12), I was not working and receiving SSD...does this make a difference in allowing me to keep the money? No, except IF the judge somehow found compelling reasons to have that award shared, if you have limited income because of your disability (i.e. you are not rich in investment income or other wealth), that would certainly tend to offset somewhat, the 'compelling' nature of your ex's needs for it - improving the likelihood that the award would not be shared.


My husband has refused to pay any of my family and our friends back their money (including paying off my dad's funeral services which occurred in september 2012)...Your dad's estate is typically supposed to pay the funeral costs - did th executor/administrator forget to pay back the person who footed that bill personally?

 

this will be the only time I will be able to pay them back...Again, if the 'community' borrowed money from friends, provable, and promised to pay them back, then you can seek to have him held responsible (via community property if available, else via his own separate property later. If you pay them with your money or community moneys, you can ask that he have to reimburse you for his 1/2.

 

Can I pay them and then request for reimbursement/credit towards any joint debt when the legal separation and/or divorce is filed? Sure. Right now you are not in court, so there is no rule that says you are restricted in spending your money. Keep good papertrail of all, as well as proof of the debts if you have.


One other thing, health insurance coverage....I am covered thru my husband. Can he remove me from the insurance? Yes, at this point, generally he can do that. But you should be able to secure your Medicare benefits, since you are on SSDIB. Also, generally, when you file for divorce you can include in your request (or now, pre-divorce) that he have to keep you on the policy pending the divorce.

 

Open enrollment is July 2013. Will it make a difference if the restraining order remains in effect or not? Not that I am seeing.

 


Customer: replied 3 years ago.

On the hearing wednesday (06/26/13), can I ask/request that he keep me on the policy pending the divorce? Because the hearing on wednesday is just to address the current restraining order (TRO), child support, spousal support, and visitations; along with some debt I'm requesting for him to help in the meantime...after court we are required to attend a 'mandatory orientation mediation'

Hi, you can certainly ask - that can be part of "spousal support" and while you are at it, he should keep the children on. You can ask that he continue to be responsible for the ongoing, pre-existing debt obligations - nothing new, just the ones that existed.

Good luck.

(We addressed a few legal questions here in addition to your original question for this post going a bit beyond the intended scope here. Please put any new questions into a new transaction thread, so we maintain the integity of this more limited transaction post you chose in the beginning. Thanks for understanding!)
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