Because CA is a community property state and neither of you kept your property prior to the marriage separated out away from the marital property (in both instances you each put pre-marital assets into the marital home (you the mobile home and him the 401K money) and because you both did that the one marital asset is the home -- the court will not consider what each of you put into it at the start of the marriage because you comingled it all and made it community property). So, what you have here is a situation of home equity that would normally be split 50/50 in a community property state divorce --- however, you are entitled to pursue the back child support against him until the children reach the age of 30 in CA -- and so if neither of them have reached 30 yet you should file an application to the family court for child support payments with an overall calculation of what he owes you for the years that he did not pay. There is absolutely no getting out of child support -- if it was owed to you it should have been paid and you still have the right to collect all of the arrears on it. So, you file a petition for divorce and at the same time the application for child support payments -- and list in the documents the amount of the lump sum that he owes you as of the date of the divorce filing -- and my bet is that whatever he owes you for child support will wash right into the 35K he would otherwise be entitled to in equity on and for the marital home. Obviously, it depends upon you and how far and hard you want to push these issues in order to be permitted to keep as much of the equity of the house as you can as your payback for going without adequate child support all of the years he was supposed to be providing it. In the interests of fairness if this matter actually went to a family court trial in front of a judge the judge would order the same or a similar outcome as I discussed here.
Please let me know what further questions that you have.
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Thank you for your reply, so he is still entitled to half of the equity even though I have made 100% of the payments on the mortgage? and all maintenance repairs etc?
Hello again Joy --
You can make an application to the court to receive some of it as payback for the extra mortgage and maintenance payments that you made after he left -- which may put it to a 65/35 split or some number in that area -- and then you will be able to wipe out the difference with the child support arrears (and most likely get an order that he has to pay you a certain amount monthly for the child support arearrs). It is not an exact science -- but the judge will look at it fairly and fashion a remedy that takes into consideration everything that you have paid.
One more quesstion if I may.....my intention is not to leave him with nothing or for him to owe me...I actuallu intended to give him $20,000 as I originally was years ago. I just want to have enough ammunition to convince him I am being more than fair...when it comes to the child support will the court go by what he agreed to give back then or what would would most likely have been awarded? Thank you very much
the court will use the amount he agreed to give you back then in the separation -- the court will not go back and re-do the child support for all of those years. Given everything I have told you , you definitely have a bargaining chip. When he brings up the fact that you owe him equity due to the 401K then remind him that your trailer went into the purchase as well AND the child support arrears that he owes to you. My suggestion then is to offer him the 20K for an easy, amicable divorce and if he decides he want to push for more, show him the maintenance, mortgage and child support calculations and that he may actually owe YOU more money in the long run here if you press it to a full court hearing and trial in front of a judge.
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