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mmdesq, Family Law Attorney
Category: Family Law
Satisfied Customers: 516
Experience:  Attorney with 13 years experience.
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Situation is: Currently in Divorce Settlement proceedings

Customer Question

Situation is:
Currently in Divorce Settlement proceedings with ex-wife (on going since June 2013). Date of separation was August 2012. She has been uncooperative with setting up a 4-way, which has been ordered by the judge on five occasions. I do not want to go to trial, because of the expense. Her attorney has been working pro bono, but he quit the case. I have racked up 10k in attorney's fees so far.
The points of contention:
1. The marital home she is currently living in (worth about 550k with 479,000 mortgage, plus 50k HELOC). She somehow restructured the mortgage without me. I continue to pay the HELOC.
2. 2nd Home - (worth about 150k, with a 94,000 mortgage). I want to keep this home, as I have been paying the mortgage, and other expenses to keep it from going into default. I have been living there when I can, but need to keep an expensive apartment in Los Angeles where I work. I eventually want to live permanently in this home, sell, or rent, but I cannot make any moves nor rent during this settlement process.
3. Spousal Support - we both have made about the same over the last few years (my attorney says it is unlikely that she will be awarded this. We have no children to support.
I am willing to take on the HELOC, and let her keep her home, and I keep the other.
My questions are:
1. Can the 2nd Mortgage HELOC be separated from her home, and can I pay this as scheduled, or will I need to pay this off entirely? We are in California.
2. Can the California Court order a 4-way in such a way that it will be punitive for her, if she is uncooperative?
My ex-wife is unapproachable, and since she is paying nothing so far, she would just let this drag on forever. It seems to me that she would benefit more to end this soon, has she will also get half of my 401k (about 37k).
My attorney is enjoying the benefit of having this drag on as well.
The resolution should not be complicated, and should not go to trial, as it is only about these two homes.
Please advise.
Thank you.
Submitted: 1 year ago.
Category: Family Law
Expert:  mmdesq replied 1 year ago.

Good Evening,

I will try to best answer your question.

Based upon the facts you describe I think you are suggested proposal for distribution is reasonable and logical. I suspect that your wife is not proceeding because she is already in the major ass that she wishes to have and you're already paying the HELOC loan. Hence what does she have to gain by proceeding?

In order to try to get the donkey to do what you want you need a carrot and you need a stick. In this case the carrot is the house. I think you need to create some risK for her regarding the residence. You can do this by stopping payment on the HELOC and getting an appraisal of the marital residence. If by chance you have under value of the house this could be an advantage to increase equity as you can argue that as an offset to keeping more of your 401k. If she sees you gearing up for trial that will likely pressure her to reach a settlement. If you have any question that your attorney is milking the situation for extra fees then your attorney with someone you actually trust is representing your interest. Good lawyers are usually very busy and do not have to over litigated case to earn fees.

Customer: replied 1 year ago.
Thank you for your speedy reply!I understand what you are saying about stopping payment on the HELOC, but it will take the bank many months to try to go after the home, and will severely affect my credit, so this is not an option. A Trail has been set for March 2016-by the time she is affected by stopping payment on the HELOC, we will be in Trial.The 401k settlement, from my understanding is set at 50% at the date of separation - I understand that to be a non-negotiable item in CA?As I mentioned, my ex-wife is unapproachable about discussing any matters relating to a settlement. I would get an appraisal on the house if I could, but she has a extremely volatile personality, and there is no way she would even let anyone in the house to perform this.My unanswered questions are:
1. Can the 2nd Mortgage HELOC be separated from the marital home, and can I pay this as scheduled, or will I need to pay this off entirely? We are in California.
2. Can the California Court order a 4-way in such a way that it will be punitive for her, if she is uncooperative?
3. The deal she made with the new loan servicer on the home without my knowledge: What is my liability in this transaction without my signature?
Expert:  mmdesq replied 1 year ago.

You will be able to continue to make the HELOC payments. You can force wife to allow an appraisal through the court. Yes you're correct about 50% of the 401k however you would also be entitled to 50% of any equity in the marital residence. With your current numbers I do not believe there is sufficient equity to fight over. This is why I suggested getting an appraisal to make sure your valuation is correct. The court generally will not force parties into voluntary settlement negotiations. Either theyou are voluntarily participated in or you go to trial. You will not be liable for any modifications to the mortgage that wife signed for alone.