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Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 102143
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Greetings!I have a friend who just recently divorced and she

Customer Question

Greetings!I have a friend who just recently divorced and she was awarded 50% of life insurance benefits which he has already cashed out. How is she getting that portion of her? please advise. Thank you!
Submitted: 1 year ago.
Category: Family Law
Expert:  Ely replied 1 year ago.

Hello and welcome to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

I am sorry to hear about this situation. Can you please tell me:

1) Did he cash out the life insurance after the divorce? Or before the divorce was finalized?

2) What do you mean he cashed out? This is life insurance. So assuming he did not pass away, you mean he used a clause in the policy to take less and cancel the policy? Or what, exactly? And who did the money go to?

This is not an answer, but an information request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.

Customer: replied 1 year ago.
There was a life insurance policy and the husband was the beneficiary during the marriage. The principal was her nephew. Her nephew passed away and he got the check and cashed it. She was awarded 50% of that amount per their divorce decree but doesn't know how to get it. Please advise. Thank you!
Expert:  Ely replied 1 year ago.

Thank you. Just to clarify, the nephew passed away after their divorce was finalized. Correct?

Customer: replied 1 year ago.
passed away before their divorce was finalized.
Expert:  Ely replied 1 year ago.

Thank you. So then how did the Court order in the final decree that she get 50% of whatever he gets from the policy, if he had already cashed out the policy at the time that the Court would have been signing the final decree that orders this?

Why did neither party tell the Judge that the policy has already been cashed out?

Or, did she believe that he would share the money at the time?

Customer: replied 1 year ago.
It was a default divorce.
Expert:  Ely replied 1 year ago.

Thank you.

She has two options:

1) File a Motion to Enforce by Contempt in family court, serve him, and have the Judge hear the motion. Contempt is how court orders are enforced. The Judge may admonish him, fine him, order him to pay for her costs in bringing the motion, and/or jail him, at the Court's discretion, for not following the order. He would also be ordered to pay the 50% and a compliance hearing would be set after this. This is the better option because it is faster than a lawsuit.

2) The second option is a civil lawsuit against him for money had and received, which is a type of suit asking for money that he holds that belongs to her in all equity (fairness). This can take months to get to trial, so the contempt motion is likely a better option as it can be resolved much faster.

I hope this helps and clarifies. Please use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how experts get credit for our time. Rating my answer the bottom two faces/stars (or failing to submit the rating) does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith with a positive rating.