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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Family Law
Satisfied Customers: 41221
Experience:  I provide family and divorce law advice to my clients in my firm.
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My husband owns his own business and I was a bank executive

Customer Question

My husband owns his own business and I was a bank executive until a car crash in 2007 broke my neck. I was laid off in January 2008. I received unemployment benefits for nearly two years. My husband paid his bills, as I did as though I were working. I paid $950 for health insurance until last November. When I left my job I had a great 401k which I have had to nearly liquidate to support him and two adult sons. After a lawsuit settled in my favor after the accident I had only a few thousand left as my family continually asked for money. They would threaten to let the house just foreclose. A great deal of money was spent by me with these funds to pay legal bills for my 24 year old son. I want a divorce. I feel that I have split all the money I need to from personal money. It is no secret to anyone that my husband slacked off in anticipation of a large settlement from my accident. There is more.
Submitted: 5 years ago.
Category: Family Law
Expert:  Dimitry K., Esq. replied 5 years ago.
Thank you for your question.

I am sorry that you are in this situation. As you probably know (and if not, I will be happy to provide you with the information), California is a "community property" state. That means that all assets in the marriage that were obtained while married, unless brought into the marriage prior to marriage, inherited, or agreed upon via a personal pre-nup or an ante-nup contract are split 50/50 between the spouses. California is also a "no-fault" state meaning that you do need to have fault grounds to file, you can just file citing irreconcilable differences. As a consequence nothing stops you from filing for divorce but be aware that whatever settlement you will obtain will be split between you and your spouse.

Good luck.
Customer: replied 5 years ago.
Personal funds fron a lawsuit are not community property
Expert:  Dimitry K., Esq. replied 5 years ago.
Thank you for your follow-up.

My apologies but that is simply not correct. Here are the California statutes that define what is "community property":

California Family Code 760:

760. Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.

California Family Code 770:

770. (a) Separate property of a married person includes all of the following: (1) All property owned by the person before marriage. (2) All property acquired by the person after marriage by gift, bequest, devise, or descent. (3) The rents, issues, and profits of the property described in this section. (b) A married person may, without the consent of the person's spouse, convey the person's separate property.

California Family Code 771:

771. (a) The earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse, while living separate and apart from the other spouse, are the separate property of the spouse. (b) Notwithstanding subdivision (a), the earnings and accumulations of an unemancipated minor child related to a contract of a type described in Section 6750 shall remain the sole legal property of the minor child.

As you can see, based on California law, personal funds from a lawsuit are community property. While many states have different rules, California as you can see does not.

Good luck.
Customer: replied 5 years ago.
Personal funds fron a lawsuit are not community property. The answer is he gets the business and I get the house.
Expert:  Dimitry K., Esq. replied 5 years ago.
My apologies again but based on state law I disagree. You can choose to split the assets how you like provided both of you agree, but based on state law you must split the personal award with him, and simply repeating what you believe to be factual will not make it so. That is why I provided you with statutory support so that you can check it for yourself.

Good luck.
Dimitry K., Esq. and 4 other Family Law Specialists are ready to help you
Customer: replied 5 years ago.
Thank you for your kind answers to my questions. I truly appreciate your time!
Expert:  Dimitry K., Esq. replied 5 years ago.
You are most welcome and good luck to you!