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Roger
Roger, Attorney
Category: Legal
Satisfied Customers: 26008
Experience:  Litigation Attorney
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I was diagnosed with cancer last January. Terminal. No cure.

Customer Question

I was diagnosed with cancer last January. Terminal. No cure. I found out this February I have 6 months left to live. I sent my husband of 8 years packing in his travel trailer last October because after 8 years of a verbally abusive relationship married to a habitual liar and gambler the stress was too much and shortening what time I have left. I want to file for divorce. Here is my question: If I pass away before the divorce is final will he still be held to the conditions of the divorce? I don't want him coming to the house I rent with my son and try to take everything that isn't nailed down "because he thinks he has a right to it" including my dogs.. Would a legal separation be better? He has already told me if I file for a legal separation he would file for divorce. I can't outlast him in court.....
Submitted: 1 year ago.
Category: Legal
Expert:  Roger replied 1 year ago.

Hi - my name is XXXXX XXXXX X'm a litigation attorney. Thanks for your question, but I am sorry for your situation. I know this is weighing on you emotionally and physically.

Given your set of facts, a legal separation would be the best thing because you can divide property ASAP instead of going through a protracted divorce, which includes a 6 month waiting period before the divorce is final.

In California, a divorce court loses jurisdiction over the marital estate if one spouse dies after filing for divorce. If that happens, the probate court takes over to determine what becomes of marital property.

Thus, if you were to pass away before the divorce were final, then your spouse would have a right to inherit form you, divide the marital assets through probate court, etc.

So, if you can do a legal separation and do a property settlement, that's definitely the best process that you could take.

Roger, Attorney
Category: Legal
Satisfied Customers: 26008
Experience: Litigation Attorney
Roger and 3 other Legal Specialists are ready to help you
Customer: replied 1 year ago.
Thank you Mr. Adams. I do have another question.. My husband receives a pension through Calpers Retirement here in California for working 25 years as a correctional officer. The retirement is $5,060.34 a month and we take home $3,725.23 a month. He is paying back $483.06 a month to buy back 7 years of retirement that his first wife took and already cashed out. Can you tell me how much I would be legally be entitled to every month? Neither one of us has any other source of income and I can't work.... Alimony? He has told me I'd be lucky to get $500.00 a month from the retirement and no alimony... Am I entitled to any? I just want to live my last few months without worries about the bills getting paid. My son pitches in half for rent and utilities but I still have my doctor's bills of almost $300.00 a month and special food I have to eat.
Another question: My husband claimed bankruptcy about 4 years ago and included our 2004 Dodge Ram pick up in it. He included another truck which was promptly picked up. No one has picked up the Dodge I have... I called American General Finance with whom the truck was financed and they can't find the loan papers. It seems a disgruntled employee took off with a bunch of loan papers and they have no record of it. My husband has a car he is making payments on and gave me the truck thinking they would come get it. I have kept the truck in good running order and registered and insured all these years ad want to give it to my son. Does my husband have any legal claim to it since he did include it in his bankruptcy? If not, how can I get it legally registered in my son's name?
Expert:  Roger replied 1 year ago.

California community property law considers retirement benefits earned during a marriage as an asset of the marriage that may be divided upon legal separation or dissolution of a marriage. Because the divorce would occur while benefits are being paid, the court will likely divide the Calpers benefits under the "time rule".

Basically, under this rule, the court uses a formula to apportion between divorcing spouses of retirement benefits. A percentage is determined based on the ratio between the time that a member spouse was enrolled in a defined benefit plan during the marriage and the total time that the person was enrolled in the

plan.

Here's how the formula usually works:

"1/2 x (Member's system credit accumulated from date of marriage / members total system service credit at time benefits become payable) x (Member's benefit at time benefits become payable) = (Non-member spouse's share of system benefits)"

Here's a good link where this formula came from. It also has some good information and a good link to a decision that outlines this as well: http://bravewebermack.wordpress.com/2010/02/25/making-sense-of-california%E2%80%99s-%E2%80%9Ctime-rule%E2%80%9D-to-divide-pensions/

As for the truck, if the title is still in your husband's name, then he still legally has an ownership interest in the vehicle. The bankruptcy just canceled his obligation to pay the debt back to the lender. But, if the lender hasn't taken the vehicle, it may never do so. However, I don't think you can get the title unless you get your husband to sign it over even if the loan has expired after being discharged.

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