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TexLaw
TexLaw, Attorney
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Experience:  Lead trial/International commercial attorney licensed 11 yrs
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Divorce, and my options

Customer Question

Divorce, and my options
Submitted: 2 years ago.
Category: Legal
Expert:  TexLaw replied 2 years ago.
Hi,

I'd be happy to help you. Tell me about your situation.

-ZDN
Customer: replied 2 years ago.
Hi, my name isXXXXX and I am seeking legal advice about a divorce I will be going through and I would like to know what my options are. We have been together for 10yrs and and married for 1 year. We lived together for 8 1/2 years at my aunts house. We didn't have joint accounts and my aunt doesn't have record of rent checks that he paid her and he paid most often with cash. He did change his drivers license address to my aunts house but I don't know exactly when. We do not have kids but we did buy a house together. I signed off on the house because he is self employed it was a concern for both of us that if he was sued I would be affected. My name is XXXXX XXXXX the mortgage still, he would not have been able to qualify for the house if I didn't agree to cosign. I did take a year off of work to help him with his business as he was trying to expand. I have also dealt with years of emotional abuse. I would also like to know how a cyber affair would affect how the divorce is perceived.
Expert:  TexLaw replied 2 years ago.
Thank you Ms. Allen,

Let's start with the basics. California is a "no-fault" divorce state. This means that a divorce will be granted where there are irreconcilable differences between spouses. In your situation, the only question that must be answered by the court is how to divide up your property.

California is a community property state. Community property is all property that was acquired during the marriage. This property will be divided equally (50-50) by the court if the parties are not able to come to an agreement.

For the purpose of division of property on dissolution of marriage or legal separation of the parties, property acquired by the parties during marriage in joint form, including property held in tenancy in common, joint tenancy, or tenancy by the entirety, or as community property, is presumed to be community property. This presumption is a presumption affecting the burden of proof and may be rebutted by either of the following: (a) A clear statement in the deed or other documentary evidence of title by which the property is acquired that the property is separate property and not community property. (b) Proof that the parties have made a written agreement that the property is separate property.

Where economic circumstances warrant, the court may award an asset of the community estate to one party on such conditions as the court deems proper to effect a substantially equal division of the community estate.

As an additional award or offset against existing property, the court may award, from a party's share, the amount the court determines to have been deliberately misappropriated by the party to the exclusion of the interest of the other party in the community estate.

Debts incurred by either spouse after the date of separation but before entry of a judgment of dissolution of marriage or legal separation of the parties shall be confirmed as follows: (a) Debts incurred by either spouse for the common necessaries of life of either spouse, in the absence of a court order or written agreement for support or for the payment of these debts, shall be confirmed to either spouse according to the parties' respective needs and abilities to pay at the time the debt was incurred. (b) Debts incurred by either spouse for nonnecessaries of that spouse for whom support may be ordered shall be confirmed without offset to the spouse who incurred the debt.

Debts incurred by either spouse after entry of a judgment of dissolution of marriage but before termination of the parties' marital status or after entry of a judgment of legal separation of the parties shall be confirmed without offset to the spouse who incurred the debt.

Emotional abuse and evidence of a cyber affair will weigh against the abuser and cheater when the court divides the property. However, this only comes into play if it is a contested divorce. Most divorces are entered into after the parties agree as to the division of the community estate. Contested divorces are expensive and require lawyers to handle, so most people simply opt to come to an agreement and go to court with the agreement to get a divorce.

In your case, the only marital asset you have identified is the house.

Was the house purchased before or after you were married?

Income earned while you were married is also community property. So are bank accounts, etc. You have a right to 50% of all community property assets. Money earned before marriage is not community property and you do not have a right to any of this, if there is any.

I need a better understanding of what your community property assets are to give you further information.
TexLaw, Attorney
Category: Legal
Satisfied Customers: 4266
Experience: Lead trial/International commercial attorney licensed 11 yrs
TexLaw and 12 other Legal Specialists are ready to help you
Customer: replied 2 years ago.
The house closed escrow the day before we were married. The person I had a cyber affair was short lived, and when I told my husband about the affair he had me sext with the person while he proceded to have intercourse with me.
Expert:  TexLaw replied 2 years ago.
OK. In that situation I don't think the cyber affair would have any affect whatsoever on the proceedings.

What is it you want out of the divorce, do you want to keep the house? Does he have money in a bank account that you want? Do you have money that you want to keep that he shouldn't get a share of?
TexLaw, Attorney
Category: Legal
Satisfied Customers: 4266
Experience: Lead trial/International commercial attorney licensed 11 yrs
TexLaw and 12 other Legal Specialists are ready to help you
Customer: replied 2 years ago.
He can keep the house, and his business since he runs it from home. I wasnt going to fight him until he started slandering my name to his clients and friends and spreading rumors about me. He wanted this to be civil and leave me with nothing. At this point I either want money for compensation or I want the house to be sold. The big question I have is the day before he told me he wanted a divorce he pressured me into signing off my name from the house deed and we had it notarized. Is that still considered community assets and I'm entitled to half?
Expert:  TexLaw replied 2 years ago.
Your action of signing your name off the deed makes the house community property where before it was likely your separate property.

He owes you for half the value of the house and needs to pay you the money in cash or in payments, if you want to keep the house. You have the right to petition the court for "partition" of the house and have it sold. However, the easiest way is probably to have the house appraised and then to have him agree to pay you half of the value of the house.
Customer: replied 2 years ago.
Thank you for advice. I do have another couple of questions. Would I be entitled to alimony from him and do I need to get proof he did live with me for more the 8 yrs? I had taken off a year from work to help him with his business. Would I be entitled to anything for emotional abuse for what he has put me through and made me do?
Expert:  TexLaw replied 2 years ago.
You are potentially entitled to "spousal support" (i.e., alimony). Not all cases involve support from one spouse to the other. The obligation of one spouse to support the other financially for a temporary or permanent basis is decided on a case-by-case basis as agreed to by the parties or at the court's discretion.

In ordering spousal support under this part, the court shall consider all of the following circumstances: (a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following: (1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment. (2) The extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties. (b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party. (c) The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living. (d) The needs of each party based on the standard of living established during the marriage. (e) The obligations and assets, including the separate property, of each party. (f) The duration of the marriage. (g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party. (h) The age and health of the parties. (i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party. (j) The immediate and specific tax consequences to each party. (k) The balance of the hardships to each party. (l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a "reasonable period of time" for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court's discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties. (m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award. (n) Any other factors the court determines are just and equitable.

The fact that you have lived together for 8 years prior to the marriage and that you helped him build the business weigh in your favor as to getting a court to give you spousal support. You want to enter the negotiation with him by claiming a justifiable amount of spousal support to allow you to keep living in the same life style that you have been. You also want to ask him for an additional payment that will pay you for your half of the house.

In regards to emotional abuse, this is not an element of the division of property. Evidence of mistreatment can weigh in your favor to get a court to force alimony or to get the court to grant you a favorable property division. These are all items that you should use as negotiation tools when attempting to come to a settlement with him over the division of the assets.

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TexLaw
TexLaw
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Lead trial/International commercial attorney licensed 11 yrs