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Steven  K.
Steven K., Family Law Attorney
Category: Family Law
Satisfied Customers: 1610
Experience:  I have practiced family law since 1996, focusing on child custody and domestic violence
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My ex wife wrecked a car that we co own. We are both on the

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My ex wife wrecked a car that we co own. We are both on the lien, but she holds her own insurance policy. I am responsible for paying the payments, per our separation agreement. I know some auto insurance companies will cut a check directly to the policy holder, vs to a repair shop. If they don't total the vehicle and cut her a large check for repairs, what happens if she just uses the money to buy a new car? Am I stuck paying 30 more payments on a wrecked car? Would that be legal for her to do?
Submitted: 1 year ago.
Category: Family Law
Expert:  Steven K. replied 1 year ago.

Steven Kincaid :

Thank you for allowing me to assist you.

Steven Kincaid :

Your ex is permitted to use the money in any fashion she chooses and it is common to replace a vehicle with insurance money. Whether or not you would have to continue paying has more to do with whether the debt was assigned to you or your spouse. It sounds like your agreement addresses the payments, rather than the debts. Is your agreement part of the final divorce judgment? What exactly (word for word) does it say about who pays the debt on the car?

Customer:

Marital Property and Debts

Customer:

10. Respondent shall have the following property: a. The 2009 Chevy Malibu.

Customer:

12. The Petitioner agrees to pay all debts owed by the parties on the foregoing marital property and all credit card debts current as of June 7, 2010.

Steven Kincaid :

Under those terms, she does not have to use the insurance money to pay the car payment since the auto debt is not her responsibility. You remain liable for the auto payment and he can keep the funds from the insurance company and do anything she wants with those funds.

Customer:

Lets say she does get a check cut directly to her and uses for her personal self. Don't you think a court would see this poorly and possibly overturn the divorce agreement because of it? This was a divorce agreement between us, not court ordered.

Customer:

Also, my name is XXXXX XXXXX title of that car. Can an insurance agency cut her the sole check?

Steven Kincaid :

It was never signed by the judge? Was it filed in the court file?

Steven Kincaid :

Did the decree of dissolution adopt the settlement agreement?

Customer:

Yes, what I'm saying is that we didn't go to divorce court to have our divorce settled. We sat down and agreed on the terms ourselves. I took all debt we had, out of pure goodness. Ky is a 50/50 state, and I knew that. I wanted my daughter to have a safe car to be transported in and I knew my ex couldn't afford it so I took all of our responsibilities. It was signed and filed. But, knowing this, don't you think a judge would look very poorly on her for using funds from a car I was paying for on my own will for her good benefit? I would think that would frown on that, sticking me with $15,000 in debt on a crashed car, on purpose.

Steven Kincaid :

If it is not part of the divorce decree, it is not a final and enforceable term. You can go to divorce court and ask for a different disposition of the property and debts. I assumed that your settlement agreement was part of the divorce proceeding. Are you still married? If not, does the divorce decree say anything about property and debts? Does it incorporate your agreement by reference? You need to look at the decree to determine if your agreement is enforceable. If it is an enforceable agreement, I do not think the judge would question her decision to buy another car with the funds rather than pay off the existing car. If she does so, everybody is in the same position they were in before - she has a working car and you are paying the family debt. But if your agreement has not been made enforceable, the Court would be less likely to require you to pay that debt without your current agreement.

Customer:

17. This agreement shall be made a part of any Decree of Dissolution of Marriage which may be entered in the herein action.

Steven Kincaid :

And a decree has been entered?

Customer:

Yes, we have been divorced for over 3 years.

Steven Kincaid :

It seems likely to me that the agreement is enforceable but technically, it should state in the decree, signed by the Judge, that the agreement is incorporated by reference or adopted as part of the decree.

Customer:

We only paid $200 to this attorney for this to be written up. It's pretty loose, I bet.

Steven Kincaid :

Possibly.

Customer:

Can I scan and email it to you? It may make it easier on both of us. If she tries this and you find a loophole, I'll pay you the payment for a few months!

Steven Kincaid :

:) As tempting as that is, I'm not permitted on this site to accept emails from customers. All communication must be through this forum. If you are able to tell me in this chat what the decree says, I can certainly comment on it though. I know that I have an "attachment" option. Do you have one too? You may be able to send it attached to this chat.

Customer:

I do have one, but I think I found what you are looking for. I'll type it.

Customer:

7. The Court finds that the parties have executed a Separation Agreement which settles issues of property, custody, visitation, and support, which Separation Agreement is attached hereto and made a part hereof the same as if copied herein verbatim. The Court finds this Agreement to be fair and equitable to both parties. The Separation Agreement attached to this decree is enforceable by the further orders of this Court.

Steven Kincaid :

Yes, the agreement is enforceable then. Sorry I couldn't give you better news.

Customer:

Well, I don't think many insurance companies cut checks directly to the policy holders do they? Don't most of them require repair estimates and then sent the check to the repair facility?

Customer:

Also, since their is still a lien on this car, wouldn't she still be required to have full coverage insurance on it even if she leaves it in a crashed condition?

Steven Kincaid :

It can go either way. Years ago, when my motorcycle was totaled, they sent the money directly to me. She would not be required to insure a totaled car.

Customer:

If the company totals it then they would have to have the title, which the lien holder won't release unless the balance is paid. Correct?

Steven Kincaid :

If what company totals it? The insurance company?

Customer:

yes, sir.

Steven Kincaid :

No, all the insurance company does is defer to the opinion of a mechanic who deems the repairs to be more expensive than the value of the vehicle. If that happens, there is no car to be titled (unless the parts are used to create a salvage title vehicle), so the original title is irrelevant. The lienholder's title is worthless and it never has to be released.

Customer:

And was your cycle paid for or was there a lien on it? I'm assuming you were the outright owner.

Steven Kincaid :

Mine was paid for.

Customer:

OK, Steven. Thank you for you help. I appreciate your time tonight.

Steven Kincaid :

You're welcome and good luck.

Steven K., Family Law Attorney
Category: Family Law
Satisfied Customers: 1610
Experience: I have practiced family law since 1996, focusing on child custody and domestic violence
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