Family Law Questions? Ask a Family Lawyer Online.
I am sorry to hear about all of this. I honestly do not know what possesses some people to do things like this after being with one loving honest person for a very long time. Can I ask you a few questions? Once you answer the questions, please bear with me for about a half hour as I research all of your points and pull an answer together for you. You do not have to remain online -- you can leave the website and you will recieve an email when I post the answer for you.
Do you have any minor children?
Before you started the business, was there any other employment for either of you ? If so, can you tell me what each of you did for a living ? and are there any pensions, 401K accounts or IRA accounts due to either of you?
How close are you and he to social security benefits?
Is this business the ONLY source of income for the both of you?
We do not have any minor children, but do have 4 adult children.
My husband was a credit manager. I was a secretary. I left work in 2002 and he left work in 2000 and started the business on a small scale. Once things took off, I left work to help him with our business. We filed for an LLC in October of 2006.
We both are collecting social security and are on Medicare. We live from week to week depending on our sales and have most of our equity tied up in the business and our home.
We have no 401K accounts or IRAs, but my husband has a $444.96 pension monthly, which will go to me if he passes. He currently has terminal Medullary thyroid cancer and has possibly 5 to 6 years to live.
He says he wants to be happy with this woman, but I fear she is trying to get our business and any money we have because her husband just passed away a month or so ago and she needs financial help and has influence my husband to leave me and move into her home.
Hello again Rita -
I apologize for the delay -- I was just notified of your response posting not more than three minutes ago and came right to this page to review your answers to my questions from earlier this evening. I have been informed that the website is having some technical issues tonight which is slowing things down on us all. Please bear with me for about another 20 minutes and I will post a response for you regarding all of the issues you are concerned about in this upcoming divorce.
Thanks, XXXXX XXXXX waiting.
Hello again Rita --
As I said, I am sorry to hear about the situation. This woman most likely believes that your husband has a lot of money because he owns his own business -- she has no clue about the fact that you are just breaking even and there is no big profit being made with the business. First, let's address this business ...... If you are listed as a member in the organizational paperwork filed with the state and there are no other references to the amount of your ownership in any of the organizational documents on record with the state or in any other written agreements between you, then your ownership percentage is 50% of the business -- and he owns the other 50%. As such, you need to be careful that you keep an eye on what is going on at the business and with the business bank accounts and any vendor payment accounts -- typically in situations like yours where there is no real money being made from a business venture of a married couple, the party having the affair may start to take money from the accounts or right from the cash register and do it all behind your back before you even know what is happening. Once a divorce action is filed, there is an automatic financial restraining order placed upon the parties to the case and neither party is supposed to be taking money out of any account or anything else (such as running up debts in the company name) - but one party may not listen to the court order and obey it and if that happens, your only recourse is to take the matter into court on a Contempt of Court action to get a cease and desist order from the judge. At that point you would have to determine how much is missing that should not have been spent by your husband and ask the court to award you a greater share of the other marital assets to make up for it (and if there are no additional marital assets that can be used to make up for it, he can be forced to enter into a payment plan to you). The business itself will be split 50/50 between the two of you which means that you can either agree to continue operating it together and splitting the profits between you OR either one or the other of you can take out a loan and purchase the other party's interest in the business so there ends up being only one owner. If that happens, then a commercial and business real estate appraiser will have to be brought in to give an overall appraisal of the business and how much it would cost for either of you to buy the other out. The both of you could also decide that it should be turned over to the children and you have the right to do that at anypoint when you choose to do it.
-REgarding the marital assets themselves, you live in what is called an "Equitable Distribution" state for the purposes of dividing marital assets in divorces. Equitable distribution means that the estate will be split 50/50 between the two of you in the interests of fairness -- and any property or debts that you each accumulated without the other name on them will be the responsibility of the party who incurred the debt and the property will belong to the person who has their name on the property unless, in either case, (a) if you believe some of the individual debts in either of your names are XXXXX XXXXX debt then the two of you can make arrangements to include such debt in the marital debt calculations to be split 50/50 at the divorce (b) if either of you holds real estate in your own name, you can hold and keep that as your own non marital property so long as you can show that the property was acquired without using marital funds, resources or credit -- if you are unable to show this for any property listed in only one name then the court will most likely include any such property in marital property and split the property accordingly).
Regarding the adultery -- you can start the divorce off as a "fault" divorce for adultery or change it from a no fault / irreconciliable differences divorce to a "fault" divorce -- however, the actual advantages gained by using the fault method of divorce are generally non existent. A judge does have the discretion to award one party to the marriage a greater portion of the marital assets if you can prove that his behavior is egregious (I have seen courts go as high as 60/40 on the marital asset split when there is a fault divorce for adultery or/and abusive behavior on the part of one spouse to the other). Most of the time, however, the marital asset split still remains at the 50/50 mark and bringing up the adultery does nothing more than causes bad feelings all around and causes large increases in lawyers fees and the fees of private investigators used to prove the adultery in court. When there is a no fault divorce statute in a state, the court generally does not want to get involved with using the old "fault" divorce grounds to proceed in a divorce case -- it generally just gets the judge aggravated.
Finally, regarding spousal support -- if you can show that he is earning more money every month than you are earning (through a combination of all sources of his accountable income every month) then you will be entitled to some monthly spousal support -- marriages that last 10 years or more are always considered for spousal support and in these circumstances the payments should last until he dies or you remarry (permanent alimony) because of the age of the parties and the fact that the court will not expect you to go out and retrain to get more education or a different job to make the alimony a temporary payment rather than a permanent payment. Under the circumstances where he is likely to pass away in the not too distant future you can also ask the court to make sure that he makes no changes to any life insurance policies so that you and/or your children continue to be the beneficiaries in order to bury him when the time comes and pay off his debts and any marital debts that he might still owe you at that time when he dies. Finally, regarding his pension, you are entitled to force him to split the pension payment in half while he is still living and have the court order that the administrator of the plan pay out your 50% portion directly to you every month when it is due and payable (all pensions, 401K's IRA's are considered "marital property" and are subject to the 50/50 distribution rules).
I think that covers everything. The court will expect that the two of you will come to agreements on all or most of these items prior to your court dates and if you fail to agree the court will order mediation sessions until you do come to an agreement and get a written divorce agreement drafted to present to the judge -- which becomes the operative contract between the two of you to end the marriage).
Please let me know if you have any further questions.
Please press the 3rd, 4th or 5th smile face underneath this ANSWER box so I will be paid for my time. I am paid NOTHING unless you press a positive rating below. Pressing the 3rd, 4th or 5th smile face below will NOT cost you any additional money and it simply acts as the trigger to Just Answer to pay me for my time assisting you today. THANK YOU VERY MUCH !!!
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).