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ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Family Law
Satisfied Customers: 17117
Experience:  Licensed Texas General Practice Attorney
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My husband of 27 yrs married and 3 kids wants to separate when the youngest leaves for col

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My husband of 27 yrs married and 3 kids wants to separate when the youngest leaves for college in September. I have been disabled with MS for 17 years and get $310/month. He pays for everything. What is he obliged to pay when he leaves? Also, I am on his insurance and health policies and he wants to write me out and just leave everything to the kids. Is he allowed to do that? Also, pensions, he says he I don't get any of it, although I dont make enough to get my own pension (just disability).

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

I am sorry to hear about your situation. What other assets have you purchased and acquired during your marriage? Is there a house, vehicles, etc...? Are there stocks, bonds, 401ks, etc...?

Customer:

yes we have 2 houses in the U K which are being sold and he says with the proceeds and the SF house (still mortgaged) and his 401K I can have half of everything. But can he stop me getting a share of his pension and can he write me out of his life insurance if we are legally separated and I am relying on his alimony? I will get the house here.

Customer:

Hi I wonder if my recent response came through?

ScottyMacEsq :

California is a community property state, meaning that essentially everything required during the marriage (including the pension) is the community property of the "marital estate".

ScottyMacEsq :

Yes it did...

ScottyMacEsq :

what that means, is that the court is going to distribute the property in an equitable manner. That does not necessarily mean equally, but in marriages of long duration, it almost always does.

ScottyMacEsq :

This includes the pension, to the extent that the pension was increased during the marriage.

ScottyMacEsq :

as to the insurance policy, unless there is a court order in place specifically requiring that you be the beneficiary of that insurance policy, then he can change the beneficiary of this insurance policy, without your consent, and to anyone else that he chooses.

ScottyMacEsq :

Now typically as part of a divorce decree, the judge will order that he have an insurance policy with you as the beneficiary.

Customer:

so can he write me out of his life insurance policies as he would like to? He wants to remove me from his life insurance policy and make the children his sole beneficiaries, is he allowed to do that? Also, can I take out a separate life insurance policy on HIM if I pay for it myself. He says I cannot.

ScottyMacEsq :

As to alimony, for marriages of long duration (marriage is longer than 10 years) and in situations such as yours, courts typically order permanent alimony, meaning that he will have to pay alimony to you for the rest of his life or your life, unless you get remarried.

Customer:

He wants to do legal separation, not divorce, so that I stay on his company (Yahoo) medical policy and can get my daily injections paid for. I could not pay for those myself as they are $3,000 month

ScottyMacEsq :

As for the life insurance policy, he can do that, however often a judge in a divorce situation (or a legal separation) will order that he has a life insurance policy with you as the beneficiary. Without court involvement, he can change the beneficiary, and has no legal obligation to give you anything.

Customer:

so in order for him NOT to change the beneficiary of a life insurance policy it has to be in writing? what if he refuses to do that?

ScottyMacEsq :

Note that a "separation" (without court involvement) is up to the parties involved.

ScottyMacEsq :

If one party does not like the terms of the separation, he or she can go ahead and file for divorce.

ScottyMacEsq :

So if you don't do anything, he can absolutely do that, because by you not doing anything, that is consenting to his actions. If you do not like the arrangement, you can file for divorce, and be able to get a property distribution, alimony, etc.

Customer:

if I go for divorce, I cannot get the Yahoo medical insurance to cover me, he has already asked his company and they say under a separation they don't care, only if it is divorce will I not be allowed to get medical coverage. I want the coverage.

ScottyMacEsq :

Per life insurance: there should be a policy that you own (that he doesn't have the ability to change the beneficiary), because even if you do have it in writing that he will not choose the beneficiary, he could breach that contract, and change the beneficiary information.

ScottyMacEsq :

I understand about the coverage...

ScottyMacEsq :

Before separation situations, that is entirely dependent upon whether you can agree with your spouse. In a legal separation, it almost always requires a separation agreement, meaning that you are in agreement with the property distribution and other related factors. If you were not in agreement, then your only recourse would be divorce.

ScottyMacEsq :

*in separation situations

ScottyMacEsq :

By the way, I apologize for any errors in this answer. I am using a voice recognition program, and while it is accurate most of the time, is not 100% accurate, so if there's something that doesn't look quite right, or appears out of place or not grammatically correct, the reason is likely the software that I'm using. If will try to catch any errors, but if if you need clarification at the end, please let me know.

ScottyMacEsq :

Separations pretty much require consent on both sides to continue...

ScottyMacEsq :

If there's not consent and one party is unhappy and wants a change, the recourse would be divorce.

Customer:

Do I get half of the latest tax rebate we will get (he says no as he was the only one who earned it). He also got a 10% work bonus from Yahoo for good performance, should I get a share of that? He says no, only he earned it. He is also taking out $200 every few days in cash from his account that he says he "needs". I fear it is being squirrelled away, he says he "needs it." Is this allowed?

ScottyMacEsq :

Rebate: you are entitled to half, as it is community property, although you would have to go to court if he doesn't let you have it.

ScottyMacEsq :

Bonus: you are entitled to half.

ScottyMacEsq :

If he is "squirreling" away money, he can do that, although that could be considered in a property distribution upon divorce.

ScottyMacEsq :

again, he can pretty much do whatever he wants if you're not going to take them to court. However, if you were to take them to court for divorce, all of these things are community property, and subject to that just and equitable distribution upon divorce. The rebate and the bonus are all community property, and you are entitled to half of it, but only if you take it to court. If you don't take it to court, what he gives you is what you get. Also what you take is what you get, since all of this property is community property, and each of you have an equal claim to that property.

ScottyMacEsq :

*take him to court (for some reason the voice recognition program recognizes "him" as "them", so if you see "them", generally it means "him)

Customer:

I have a family lawyer who is saying I should retain her straight away as she can file papers for legal separation, and get the money disappering stopped and can get spousal support and child custody for me (my child is 17 and 18 in November). He does pay all costs for her already and does reimburse me grocery bills and gives me a monthly allowance of $400. Total comes to around $1100 he pays me to cover both. She says spousal support would be more than this. He earns $116,000/year. My only income apart from some online writing of $60/month is the $310 I earn from disability allowance/year. I have to add I feel horrible filing anything against him, I still consider myself married and still care for him (he does not want marriage therapy, he want us to be apart - this is just an aside, I know)

Customer:

Also, will I be able to print all these answers out?

Customer:

Also, do I tell him if I am using a lawyer or do I keep quiet?

ScottyMacEsq :

After you rate this answer, it will switch to a Q&A format (you may need to refresh the page after rating) at which point you'll be able to print this information.

ScottyMacEsq :

You will most likely get more than that if you file...

ScottyMacEsq :

As for telling him about using a lawyer, that's really up to you, and based upon how you feel that he will react.

ScottyMacEsq :

(you know him better than anyone)

ScottyMacEsq :

If you feel that will give you a better bargaining position, then go ahead and tell him. But if you feel that it will be detrimental, it might be better withholding that information until necessary.

Customer:

okay thanks, XXXXX XXXXX he will just get angry, he seems to get angry right now even when I ask him the simplest question, when i said I thought i should get a lawyer, he just answered "ask your lawyer" to any future question I asked him.

Customer:

if I get divorced, can he be forced to pay for my medical coverage or would it be part of the alimony (as he says) and would therefore mean less money for me.

ScottyMacEsq :

The judge can require that he pay for a medical policy for you, as part of the alimony. It depends largely on the judge, but in situations of long marital durations and where there really is a dependent spouse, the judge will often require that the other spouse support that dependent spouse for a long period of time.


 

Customer:

And since we were married 26 years, alimony is half of that, 13 years? Or is it for life since we are both 53 and there is no time for me to even try to work up a pension.

ScottyMacEsq :

In marriages of long duration, it's generally permanent alimony (until death or remarriage).

ScottyMacEsq :

Marriages up to long duration ones tend to be half the time.

ScottyMacEsq :

But marriages of long duration tend to be permanent.

Customer:

Ok thanks, XXXXX XXXXX I ask for a cost of living increase? (this is in a book I have on divorce)

ScottyMacEsq :

Absolutely. That would be part of the spousal support.

Customer:

can he be made to pay the legal fees of this separation?

ScottyMacEsq :

Yes. California specifically allows for legal fees to be ordered against one spouse where the other spouse is a dependent spouse, with little to no income on his own or her own.

Customer:

Can I find out what my monthly payment from him would be? I have seen a California divorce calculator online, is that normally accurate?

ScottyMacEsq :

It can be, but ultimately alimony is up to the discretion of the judge. Child support, on the other hand, is based upon a specific formula in the statutes, and the amount that you calculate online will be what you can expect from the court.

Customer:

Do you recommend then that I got for this lawyer who wants to represent me? If my husband still wants to do mediation, can the lawyer be there for me during mediation for a legal separaiton?

ScottyMacEsq :

in a situation where you feel that the separation/divorce will be contested, I would suggest getting a lawyer. If you can work it out wiith your spouse, I would highly recommend doing that without lawyers, as there is more money in the end left over for the spouses. But you do not want to get railroaded, and in your situation I would recommend having an attorney advocate on your behalf. As for the lawyer being there for you during mediation, absolutely you can have the lawyer there.

Customer:

Thank you, XXXXX XXXXX you have answered my questions. I note you are Scotty Mac and I myself am Scottish, from Glasgow, but now living here in SF.

ScottyMacEsq :

The McEwens (my surname) came from around there (Loch Fyne), but that was a long time ago...

Customer:

Just one last question: should I be able to get some kind of part-time job, do I declare that to my husband, the IRS, anyone else? Can my husband then say he wants to pay less alimony? In which case might it not be worth my while to bother trying to work? I realise if I get married the alimony stops? Does it stop if he dies, or retires and should I take out insurance on him in case that happens or does he take out insurance in case that happens?

ScottyMacEsq :

if you had income of any type, you would need to declare that the IRS, certainly. Also, it would need to be declared in any financial statement that was ordered by the court or requested as part of a legal process.

ScottyMacEsq :

But a part-time job typically would not have the income to replace the income that you had that allowed you to have the standard of living that you had.

Customer:

And finally, I was sent an insurance policy by the AARP which I am considering. It would pay out on his death. He says he doesn't want it, but I'd be paying for it. Can I do that since I'd have an interest as his separated spouse?

ScottyMacEsq :

As for alimony stopping when he dies, yes, which is why having an insurance policy would be a good thing.

ScottyMacEsq :

For retirement, if it's a normal time (65), that it would stop.

ScottyMacEsq :

of course at that time the pension rights would start, and you would have a claim to those.

Customer:

Can he say he wants to pay LESS alimony if I have a part-time job or not, I wonder?

ScottyMacEsq :

Yes you could do that, as separated spouse, because you would own the policy, not him. He would have no say in whether or not there was a policy on his life, since you would be the owner.

ScottyMacEsq :

He can absolutely say he wants to pay less, but he would need a court order allowing him to do so.

ScottyMacEsq :

to get a modification, he would have to file for a modification of the alimony award. And to be able to successfully win that motion, he would need to show a material change in circumstances, which means he would have to show that you had a job that significantly changed the financial situation. I doubt that a part-time job would do that, however that is entirely fact dependent.

Customer:

And I would be allowed part of his pension in the US and the UK where he worked for a few years at the beginning of our marriage? He is not allowed to say I dont' get any of it? Same with his social security benefits?

ScottyMacEsq :

since this is a marriage of long duration, you will almost certainly have a claim to half of all these benefits.

ScottyMacEsq :

(and you're in California)

Customer:

Thank you very much indeed for all your help. God bless.

ScottyMacEsq :

being in California when you file is very important, because that means that this property will be classified as community property.

ScottyMacEsq :

My pleasure.If you have any other questions, please let me know. If not, and you have not yet, please rate my answer. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX good luck to you!

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