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Brent Blanchard
Brent Blanchard, Family Law Attorney
Category: Family Law
Satisfied Customers: 1975
Experience:  Eleven years of experience in family law, from pre-nups, divorces, child custody and support mod
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My wife at age 70 and living with my daughter wants a

Customer Question

My wife at age 70 and living with my daughter wants a divorce. It seems illogical
Presently:
• She has access to the retirement fund, MetLife, through me and really has not used it.
• Also it has a death benefit, where she is the beneficiary.
• If Claudia passes away before I do, then the house would go to John.
• Misc. Inheritances etc.
• House which John would eventually be able to move into upon my demise,
• Car
• Watch worth about 25,000 would go to Sylas at a certain age
• Gold nugget bracelet to remain in Claudia’s custody
• The Computer
• Everything else in the house.
• Enjoy the access to my SSDI
• I would continue to stay in the house.
• I offered with many hour of counseling, she could move into one of the rooms.
• John would not be able to do so.
• Amanda would not be allowed in my house.
• My income will as usual pay for her car.
With a divorce
• MetLife I would make sure that the judge make the decision on the percentages. I, will by law, combine both, then he would be able to balance out the award. Possibly awarding me the house and possible I would get a lesser portion of MetLife
• The inheritance of the house if awarded to me would go to Claudia and eventually to John.
• Upon my demise after Claudia, the house would go to John
Claudia thinks that it is a separate item, thus divided equally, which can be combined with MetLife as a package and the Judge would divide the assets accordingly. He would take into account that I would not have sufficient funds to continue renting an apartment.
With my portion of MetLife, I would change the inheritance to my sister’s grandchildren.
• The watch, I would sell it and take half. Thus Sylas would not have it.
• The nugget bracelet I would also sell it.
• The furniture would also be split and I would get ½ the value
• I would retain the SSDI
• The PC I would retain and buy a laptop as she requested.
• To date expense total 450 dollars.
• She will need to continue paying for her car.
Submitted: 1 year ago.
Category: Family Law
Customer: replied 1 year ago.
We live in Ca. To me it illogical to get a divorce Would appreciate a response on this also
Expert:  Lucy, Esq. replied 1 year ago.

Hi,

I'm Lucy, and I'd be happy to answer your questions today. I'm sorry to hear about your situation.

I understand why you feel that divorce may be illogical in this situation, but what is your legal question? Are you asking if she's allowed to divorce you over your objection?

Customer: replied 1 year ago.
I would like to repost the question. The first part was the illogical option of a Divorce and the second was to be able to 'package' the house and the annuity account and let the judge decide how to handle it. Oh. lastly you did not state if you and a license to practice in California.
Expert:  Brent Blanchard replied 1 year ago.

The other Expert has opted out so I will give this a try. My law school and second license were both in Community Property states, and the property division rules are pretty well-established and known among attorneys.

I won't try to track who's who here because that might drift into practicing law on-line for you (please see the Terms of Service here). However, you are probably familiar with the general rule that each spouse "owns" half of everything that the other *earns* during the marriage. That includes retirement funds or benefits (you might want to Google "Qualified Domestic Relations Orders", called a QDRO for short, in the realm of divorce and retirement and ERISA-governed employee benefits to learn more nitty-gritty details...).

Community property ("CP") does NOT include: Inheritances, gifts (including the possibility that one person's half of CP can be gifted to the other by doing things like changing title on a car from both names to only one name), property owned before the marriage and a few other things I don't remember right now.

ANY separate property from that list above can be "transmuted" to become CP by positive actions showing "intent" like: depositing money into a joint/CP bank account, changing title (think cars and land and anything else "registered" in some way) to include the other spouse, writing a letter or card saying "this is yours now", and similar actions.

So step one is finding out what is REALLY CP. After decades of marriage, most everything winds up being CP unless there is some clear separation of assets remaining like...the title on the car or whatever. Expected inheritances should not even be included in the list of *separate* property because YOU might die first anyway--legally they are mere "expectancies". If you don't HAVE it, it's not yours to count or give away or divide.

A QDRO is required to force the Plan Administrator of any retirement fund (IRA, 401(k), private fund) to split the money in whatever way the divorce decree calls for. Otherwise, federal law usually prevents any changes. Divorce attorneys earn their money by making sure the division is correct when the retirement was accumulated partially outside the time of the marriage, making it NOT 100% CP, or when the dollar amounts don't work out with what the ex-couple wants to do and the financial adjustment is made using an unequal division of those funds. It gets further complicated with survivor benefits and before retirement it's about the only way to force a person to take any specific plan (highest money and nothing paid after the worker dies--awful if the "wrong" one dies first, next-highest payout and the surviving spouse gets half when the worker dies, or the lowest payout and the same payout continues until the second one dies).

Now divorce case judges often don't like being saddled with forcing a property division onto squabbling spouses who are splitting the blanket, but it IS their job. They might be a little bit limited if the couple has already retired and the payout choices are locked in, but they have ways of protecting both spouses from each other and from themselves. Sometimes they will even give a choice in the court order such as "either sell X and split the money, or whoever wants to keep it pays the other half of its value of $yyy.zz."

Your question hints that this might be a blended family marriage where at least one child is not a product of this marriage. This complicates things a bit more, since normally no one inherits from a person who is not their parent. This leaves the uncomfortable prospect with a CP house of not being able to control whose kid gets that house. And since no one has a right to inherit "from" anyone (the only real rights are in the property owner's rights to determine who the stuff goes TO *if* the estate is solvent enough to have that item still be around after the bills are paid). If that is the situation, then a couple must either agree on doing something other than pure intestacy succession, or try to submit the question to a judge who is likely to not want to mess with the rights of children from different families by second-guessing who will die first.

The bot***** *****ne is that IF there is enough money in a divorcing couple's pot of community property, there are usually many ways to make sure the 50/50 split required by the law's default rules really happens. The details depend on the details, like the internal rules of the specific retirement funds. Sometimes protection of one spouse's right to half the retirement of the other one is achieved by making the one getting the money buy and keep an insurance policy (or annuity) on their own life, to continue the retirement benefits due to the other spouse if that person dies first. IF the other spouse dies first, well they didn't miss out on any lifetime retirement benefits and the other one can either drop the insurance or annuity or name someone else of their own choice to get it.

Bot***** *****ne is you need to find out what rules you are under with the retirement benefits, then make the financial adjustments accordingly. About the only time a reasonably equal division cannot be made of those plus the rest of the CP is when the couple is too broke to have any money to make the financial adjustments.

Thank you.

BAB.

Customer: replied 1 year ago.
Please read the new text that I revised to make it more readable. It is under the same file name. It is the same length but it is clearer. I have not yet read your reply out of high anxiety and the clarifications I have made. I just found out that I could enter it below and I did. Please follow the text I posted in your answer. This way I might be able to convince my wife that she is making a bad decision which is most important to the both of us. Also do you have a license to practice family law in California. This very important.
Customer: replied 1 year ago.
I am sure just by looking at the text that seemed professional. Due to a Panic Disorder similar to PTSD but due to my son, I just did not read your text and corrected the full text of the question that I sent you. Also, as a retired professional engineer the code of ethics would never allow any one in my profession to ask for a tip! I think that this website does allow one to ask for a tip. On the personal side, if you are licensed, why would you be on a site like this since PE engineer and Lawyers charge about 300 to 400 an hour. Thus being on this site I just not understand why professionals as you are on it. I also belong to computer blogs, having used computers since the first apple came out, but all my replies are free. Oh, by the way, if you have windows 7 I would suggest that you wait until about 8 months before changing over. You can see windows 10 on Youtube.com Now if you want to ask me a question I will gladly help you, just e-mail me at***@******.***
Customer: replied 1 year ago.
I finally read some of the text. It was interesting you said that 'practicing law online was not allowed. That is what I thought when I think this site asks for tips. Since I believe you did not answer the question even with the revised question, would you be able to answer the simple one. The present informal arrangement, she has access to everything that I have. The alternate is a divorce which to me will be expensive as to the division of the assets. Also her objective is to buy my portion of the house, with my retirement benefits that I invested into an annuity account with death benefits. Now the worst part is that although, I do not have any debts, my credit score is 461, and any arrangement would not produce any income to be able to live at least close to my standard of living. To me the second option is illogical. I do not think a judge would award the house to my wife. I simply do not see any logic to a divorce!
Customer: replied 1 year ago.
I would like to put the question out to other lawyers. Yours has some fascinating facts, but I do not feel I received the reply I wanted especially about the logic of getting a divorces staying separated.

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