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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Family Law
Satisfied Customers: 27621
Experience:  Attorney with experience in family law.
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I am considering divorce or a legal separation. We have been

Customer Question

I am considering divorce or a legal separation. We have been married for 14 years. The last 4 have been particularly problematic although he has left home 4 or 5 times and we started divorce proceedings but both agreed to save the marriage for the sake of our 3 year old son. I believe this man had motivation to marry me mostly to gain resident status and citizenship (he was an illegal alien). He encouraged me early on to purchase two properties (rental) under both our names and he would manage the small repairs while I would handle the administrative side of things (handle rents, pay bills, advertise vacancies, etc. Every time he leaves he moves into a vacant apartment, does not pay rent, and this results in significant deficits in revenue to maintain the mortgage obligations. I currently make only $33,000 through self-employment, and he claims to make less than $25,000 per year although I believe that a portion is earned "under the table" although he will not admit it to me. For most of our marriage he has given me only $600 per month for household expenses...that barely covers his food. We also have a 3 year old son together late in age. I have a state retiree pension plan of $24,000 per year which only covers my home mortgage (his name is ***** ***** it), and I have $150,000 in a 457k. He has $35,000 in a traditional IRA.
My question...how can I protect my assets, especially my 457k. Can I roll it over now into a Roth IRA in my son's name and would I be able to withdraw from it in an emergency. Should I pay off my house entirely with the 457K funds? I owe 3 years' worth at 2.6 APR.
I also have $80,000 in credit card debt acquired over the years...$30,000 for IVF for the conception of our son and $25,000 of my own money and credit (he had no credit)for down payment and closing costs for the two rental properties that are under both of our names. Our marital home is only under my name. I owned it before I met him and a condo in Miami I also inherited before I met him.
With a good lawyer he may try to get a portion of my 457K, my State employment pension of $24,000 per year and one or both of the rental properties.
Please advise as to how to protect my assets. Keep in mind that I have supported this home primarily over the past 14 years.
Submitted: 11 months ago.
Category: Family Law
Expert:  Lucy, Esq. replied 11 months ago.

Hi,

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

Transferring assets into your child's name for the purpose of not splitting them in a divorce would be a fraudulent transfer. The judge would have the ability to order that the transfer be undone, because that's illegal. Worse, because Connecticut is an equitable distribution state, if you did that, the judge would have discretion to award your husband the ENTIRE value of the account, instead of only the portion he would otherwise be entitled to. Paying off the house would not help, either. You'd wind up having to take out a mortgage to pay your husband the amount he's legally entitled to, and that's not going to benefit you at all.

Legally, you're each entitled to roughly half the assets acquired during the marriage, regardless of whose name is ***** ***** He'll get half the amount contributed to your 457k during the marriage (not necessarily half the total value), and you get half the value of his traditional IRA. The house is yours, since you had it before the marriage. The condominium is yours as well. You're each entitled to half the value of the rental properties. I'm sorry to say, since you put his name on them, he is an owner and he's entitled to a portion of the value. They're not considered your properties just because you bought them. The judge will either award one of the properties to each of you or allow one of you to buy the other out (that depends in part upon what the two of you want - if you each want to continue operating the properties, he'll likely give one to each of you). The credit card debt and IVF debt will be split between you.

The fact that he was an illegal alien when you met him has no bearing on the separation of assets unless he left you immediately after obtaining citizenship (in which case you could argue that the entire marriage was a fraud). He will be required to pay you child support if you retain primary custody of your child. And at trial, you'll be able to provide whatever evidence you have of his actual income versus what he is currently claiming. Again, if the judge finds that he's lying and hiding assets, he can give you a greater portion of the marital estate as a result.

If your primary goal is to avoid a 50/50 split and make sure your husband walks away with as little as possible, I'm sorry to say, you will probably have to hire a lawyer. The law is pretty set that spouses are going to share most assets equally. The judge can consider the extent to which your husband's domestic violence contributed to the breakdown of the marriage when you ask him to give you more than 50%, and he can consider whether your husband's behavior lead to reducing marital assets, but it would still help significantly if you had someone who could argue on your behalf. This is especially true if you'll have to establish that he's lying about or hiding his income.

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If you have any questions or concerns about my response, please reply WITHOUT RATING. It's important that you are 100% satisfied with my courtesy and professionalism. Otherwise, please rate my service positively so I am paid for the time I spend answering questions. If you are on a mobile device, you may need to scroll to the right. There is no charge for follow-up questions. Thank you.

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