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LegalGems
LegalGems, Lawyer
Category: Family Law
Satisfied Customers: 7454
Experience:  Experienced Family Law Attorney
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Been married for almost 8 yrs. He is retired military and

Customer Question

Been married for almost 8 yrs. He is retired military and receives a disability Check. We own a small strip mall with seven businesses in it, including my salon which takes two bays. We own a house, still paying on it! What am I intitled to... he wants to give me nothing but my business, and then make me pay rent😬 He want to just get one lawyer, but I m afraid I will not get treated fairly. What are my rights! Please help me!
Submitted: 15 days ago.
Category: Family Law
Expert:  LegalGems replied 15 days ago.

Hello! I will be reviewing your question and posting a response momentarily; if you have any follow up questions please respond here. Thanks!

Expert:  LegalGems replied 15 days ago.

I am sorry to hear that you are having to deal with this, particularly if the other side feels he has limited obligations.

Nebraska law will be controlling in regards ***** ***** distribution of marital property and spousal support.

For marital property (property acquired during marriage in most instances) the court will divide the property in an equitable manner;this means fair and just, which is not always 50/50. If one's business is based out of marital real estate, generally the business will be allowed to be continued to be operated there in order to avoid disruption. This can result in the business operating spouse buying out the other spouse, or a court order allowing that the person be permitted to continue renting there, with annual rate increases built in to help avoid future discord. Another option would be to order the business to relocate, with the other spouse sharing in the cost of the move, along with the economic down turn that would result if this was so ordered. That would typically require a buy out of the spouse's interest in the mall.

When dividing marital property the court will consider several factors such as:

The income and property of each spouse at the time of the marriage, and at the time of the divorce;
The length of the marriage and the age and health of both spouses;
If there are minor children involved, the need of the spouse who has custody of the children to live in the marital residence and to use or own its household contents;
The loss of inheritance and pension rights of each spouse because of the divorce;
The loss of health insurance benefits of each spouse because of the divorce;
Any award of support or maintenance the court will be making;
Whether one spouse made contributions to marital property that the spouse does not have title to; for example, where one spouse helps the other spouse increase their ability to earn more money by getting a degree, license or certification;
The liquid or non-liquid character of all marital property (“liquid” means that the property can easily be converted to cash);
The probable future financial circumstances of each party;
The impossibility or difficulty of determining the value of certain assets, like interests in a business, and whether one spouse should be awarded the business so it can be run without interference by the other spouse;
The tax consequences to each party;
Whether either spouse has wasted or used up any of the marital property while the divorce was ongoing;
Whether either spouse transferred or disposed of marital property at less than market value, knowing that the divorce would be happening;
any other factor the court deems relevant.

So as you can see, the individual judge assigned to the case has great discretion, so it is difficult to predict in advance what the judge may rule. An attorney that is familiar with the particular judge may be better able to provide an estimation based on the judge's past rulings.

Similarly for the family residence, generally the party wishing to retain possession will need to buy out the other, and execute a quit claim deed. Othertimes, the house can be sold with the proceeds divided in the equitable manner discussed above.

As for spousal support, generally the lower earning spouse will be awarded a monthly amount, to enable that person to continue living at the standard of living achieved during marriage. This too varies by judge, but often it is deemed appropriate to award support for one half the length of the marriage.

Relevant statute here:

http://nebraskalegislature.gov/laws/statutes.php?statute=42-365

USFSPA and federal case law deem that disability benefits are not subject to distribution to a former spouse in a divorce proceeding; rather only that portion of retirement pension that is determined to be the pension, rather than disability, may be considered a marital asset subject to distribution to a former spouse.

As for attorneys, one party cannot prevent the other from getting an attorney and in fact many attorneys will not represent both spouses. A personal attorney will help ensure one's rights are protected. One can also request that the higher earning spouse be ordered to pay legal fees if it is necessary to ensure that both spouses are fairly represented.

It is the judge, not one spouse, that will decide these issues; unless the parties are in agreement in which case they may "stipulate" to how property will be divided, spousal support etc, and the judge would typically sign off on that stipulation unless it appears to be inherently unfair.

Further questions? Please post here to continue the chat.

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Information provided is for educational purposes only. Consultation with a personal attorney is always recommended so your particular facts may be considered. Thank you and take care.

Expert:  LegalGems replied 12 days ago.

Hello again; just checking in to see how things worked out;
if you have further questions please don't hesitate to reach out to me here on Just Answer.
Thanks!