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Brandon M.
Brandon M., Family Law Attorney
Category: Family Law
Satisfied Customers: 12620
Experience:  Attorney experienced in all aspects of family law
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I was married 19 years ago and about 3 years into the marriage

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I was married 19 years ago and about 3 years into the marriage I left my husband due to domestic violence issues. We have two children together who are now adults. We have both led seperate lives and only communication we have over the years had related to child support. I filed for divorce 15 years ago, but he has always avoided court and not cooperated. I've followed up a few times to get him to sign the papers, but he refuses. I went into court recently, and the clerk says the divorce case has been closed and must be started over again. (is this true).

Now, I am trying to qualify for a loan to purchase a home and the bank will not finance unless I show proof of divorce or at least legal seperation. If I have to start over, then the process will take 6 months to final. My question is are we already technically legally seperated since we have had seperate lives for 15 years? He even filed for bankruptcy a couple years ago, and neither collectors or the BK trustee were interested in my assets.

I asked him again tonight to please just sign the papers so it will be over, and he is playing games telling me I need to ask nicer. I am practically begging him, but communication is limited since there is still a domestic violence restraining order against him for another 5 years.

Also, if we are considered married and he continues to refuse to cooperate, am I entitled to his assets? He receives tribal money since he is native-american and is now receiving monthly checks averaging $14,000. I've even seen checks for $19,000 for one month. If he wants to play games, am I entitled to community property?

Brandon M. :

Hello there.

Brandon M. :

Hi, can you see this?

Customer: yes
Customer: hi
Brandon M. :

Great. Thank you for your question.

Brandon M. :

A legal separation is a formal process. It is not achieved by mere separation. One of the spouses must file for legal separation, and the other spouse must have the opportunity to respond in court.

Customer: ok. so we are considered married then even after 15 years?
Brandon M. :

Regardless of the fact that you have lived separately and had only limited communication for the last 15 years would not create a legal separation or divorce. You would still be considered married unless a court adjudicated you as divorced.

Brandon M. :


Customer: ok, so do I need to restart the process again and wait the 6 months?
Brandon M. :

Well, I'm sorry to say that you would still be technically married, so if the lender wants proof of your divorce, you will have to wait 6 months.

Brandon M. :

That said, there is no wait period to get a legal separation.

Customer: since we are considered 'married' and he refuses to cooperate, do I own half his assets, including his house, vehicles, income, etc?
Brandon M. :

A divorce can't be effectuated for 6 months after filing, but a legal separation has no restriction of that nature.

Brandon M. :

So if you want to hurry things along, you may want to legally separate now and change that to a divorce later.

Brandon M. :

Before I address the question of asset division, does my answer to that first part make sense?

Customer: Yes, makes total sense.
Customer: I was hoping there was a loophole somewhere
Brandon M. :

Well, because the nuances of every case are different, you should not rely on this information as complete or advice without consulting in person with counsel, but that said, you're married until a court divorces you, and you are not legally separated until a court declares you legally separated.

Customer: Can I walk into court Tuesday, file papers for legal seperation, schedule a hearing, and make it happen even without his cooperation?
Brandon M. :

Yes. Neither a legal separation nor a divorce requires two party consent. Only one person has to make the request.

Customer: ok. Then that's what I will do.
Customer: I don't want his money or assets. I just want him to go away. But, if he continues to play games I would like to claim my rights to his assets, including alimony. Maybe that will wake him up to sign the papers. LOL. But, legal seperation is fine if it's 'immediate'.
Brandon M. :

I wouldn't describe it as "immediate", but there is no wait period. You still have to get the court's judgment, but it's not like with a divorce where you get the judgment and it doesn't go into effect until at least six months have passed.

Brandon M. :

Is that all clear? If so, we can move on to the discussion of assets.

Customer: ok. Whatever makes the bank happy. Anything is better than waiting 6 months and losing my approval.
Customer: yes. All is clear regarding divorce vs legal seperation
Brandon M. :


Brandon M. :

Ok, so on to assets. Let's first discuss what community assets are...

Brandon M. :

Community assets are those assets acquired after the date of marriage and before the date of separation, except assets acquired by gift, devise, or bequest. Note that it includes assets acquired before the date of separation, not the date of legal separation. If a couple separates with either having the intent of not reconciling, the date of separation occurs at that time, even if legal separation occurs years later. So if you were married for 19 years and separated for 15, the community property assets would generally not include those assets acquired in the final 15 years, even though the couple was technically married.

Customer: ah I see.
Customer: so that is why his BK trustee was not interested in my assets?
Customer: his debt was not my debt
Brandon M. :

That's likely why.

Customer: what about alimony after all these years?
Brandon M. :

The court does have the power to order it. In California, "alimony" is called "spousal support", but they are the same thing.

Customer: realistically, should I even bother trying to go after alimony? He just started receiving the tribal money only near the very end of our relationship.
Customer: so, I didn't really enjoy that lifestyle, but only for a few months
Brandon M. :

Well, what harm would there be in trying? I probably set my expectations low, but it could give you some leverage to resolve the case.

Brandon M. :

*I would probably set me expectations low....

Customer: actually, I seem to recall that state courts have difficulty enforcing spousal support/child support orders from tribal members. They are protected by federal laws from state enforcements.
Brandon M. :

Well, not necessarily :-)

Customer: He has fallen behind in his child support obligations several times, and the county only had the ability to suspend his license. They couldn't garnish the tribal checks
Brandon M. :

It somewhat depends on the tribe, but more importantly, where the debtor keeps his assets.

Customer: he hides his assets with his long term GF. Everything is kept in accounts in her name. It's how he got through his BK, and how he does his taxes. My mother is a CPA and used to do his taxes years ago. He knows how to hide the money
Brandon M. :

I understand.

Customer: ok, I have enough info to tackle this problem. Unless you have other good suggestions?
Brandon M. :

If you want the legal separation to rush through, I would encourage you to use an attorney to help with that process. I would also just check and make sure that you are satisfied with my help this evening. :-)

Customer: absolutely. I needed this peace of mind to get me thru the holiday weekend. I sent him another pleasant text message asking him to please just sign the papers, and his response was typical smart a@$. So, now I know I can just go to court and start the legal separation process and not have to wait 6 months. So, thank you. :)
Brandon M. :

It was my pleasure. I wish you the best.

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