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originallawyer, Family Law Attorney
Category: Family Law
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Experience:  6+ years of experience in divorce, custody battles and mediation.
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Summary: Do I need to file for divorce to protect assets?

Resolved Question:

Summary: Do I need to file for divorce to protect assets? Do I want to file first? (All questions at the end)


 


History: (Louisiana) Married 16 years, two children 13 and 10. 2005 Wife has 1st affair eight years ago with another women. They breakup she self admits for suicidal thoughts diagnosed bipolar, gets out, we reconcile 6 months later.


 


2008 Three years later I catch her on the phone with an ex-boyfriend, she stops that behavior.


 


2011 Three years later she has a one night stand and emotional affair with a man which I have all the evidence. She was unemployed at the time, we got her help again did some marriage counseling (that was two years ago).


 


2013 Now she is in her fourth encounter texting/sexting/covert meeting (don't know what all is going on, she has admitted she can't stop and that I wouldn't like what the messages where about). She left marital home and is living with mother. She is working part time now. She has no interest in reconciling, I told her we could reconcile if she stopped contact with other person, went back to counselor, then we would go through $4000 invasive couples therapy that we should have done last time. She decided against all of that so I am cool.


 


We share the kids every other week, split all money except my 401k. I have taken all the credit card debt ($6k), given her car that I paid off (worth $8k), pledged to pay ALL kids expenses of any kind, plus when she moves out of her mom’s house I have offered to give her any furniture she wishes, plus pay first month rent, deposit, utility deposits no strings attached - we agreed kids stay in same schools. I would also continue to pay her health insurance through my work. She would have to pay her insurance on her car, cell phone bill, and her own expenses.


 


I told her I won't pay alimony, and she has to take care of her student loan debt ($20K).


 


Her parents supported me in the first divorce and support me in this divorce. HER Mother doesn’t think she is a fit mother. I don’t think she is a great mother, but I wouldn’t say she is unfit.


 


She gets half my 401k ($40k) at divorce anyways, we have about $8k equity in our house, but would have to spend $10k in foundation repair to sell it. So I have asked her not to force me to sell it to split equity. I was thinking I could give her more 401k??


 


Questions:


Do I need to file for divorce to protect assets? My friends and family worry she could ruin my credit.


 


Do I want to file first? We agree on 50/50 custody and most of the asset stuff, I just don’t want to pay child support or alimony.


 


If she agrees to what I offer above, will I have to pay child support? (I make a lot more money than her)


 


Can she waive child support?


 


I really want to get this over. Filing for adultery divorce seems quicker, may piss her off, but will ensure I don’t pay alimony, am I missing anything? If I do the no fault, we have to be separated a year.


 


I know you are a professional and these are lot of questions so I hope I am giving adequate fee, I know I need to get an attorney I am just trying to get my head wrapped around this before I go out and get one. Much Thanks!


 


Just noticed it didn't give me option of fee this time, I will put in tip.  Thanks.

Submitted: 1 year ago.
Category: Family Law
Expert:  originallawyer replied 1 year ago.
Good evening:

The short answer to your question is yes, you should file for divorce to protect your assets. Unless you're divorced, everything is still considered "community property" and all debts entered into during the marriage are going to hit both of you unless she puts them only in her name and it doesn't seem like she does that.

Here goes my answers to the rest of your questions:

1. Filing first gives you greater control of the case. If you have documented evidence of her adultery and you haven't enjoyed marital congress with her since you found out about the last episode of her infidelity, going for a fault divorce would be best. If you at all made it look like you would take her back, or you did take her back, she can argue that the infidelity was forgiven and you can't use it against her.

2. You've basically offered to pay child support. To protect you, I'd pay it through the state. If you don't, then at any point down the road, she could still come back and get you on the hook for child support. Most Judges won't let a parent waive child support, even if you promise somewhere else to pay it to her in another format. It would be in your best interest to pay support through the state to protect you.

3. I don't think based on the history of adultery, you'll end up paying spousal support/alimony.

4. Your insurance company won't allow you to keep her on your insurance once you're divorced, since she will no longer be related to you by marriage. You could offer to pay her COBRA or a private premium for her. You, of course, can offer to keep her on the insurance plan until the divorce is final.

5. You could offer her more 401(k), but depending on the Judge you're in front of, she might not actually even get half of your 401(k). While it's assumed that it has to be split on divorce, that's not entirely true. If you want to give her half, that's fine, but she's not necessarily entitled to it.

I think your offer is pretty generous given the circumstances and she should take it.

The only thing I would change is that I would offer her a set amount of monthly child support and leave it there. If she agrees to a certain amount, you don't necessarily have to pay the amount the state would make you pay were they to be involved.

Let me know if you have any follow up questions.
originallawyer, Family Law Attorney
Category: Family Law
Satisfied Customers: 378
Experience: 6+ years of experience in divorce, custody battles and mediation.
originallawyer and 6 other Family Law Specialists are ready to help you
Customer: replied 1 year ago.
That was what i needed. Thanks!

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