Date of separation?

[frostbyte3964]

What is the name of your state (only U.S. law)? Utah

I'm trying to figure out when the legal date of separation would be considered for my situation and lots of details related to my odd situation.

I was married for 10.5 years and was working in Utah. We have 4 boys under 10. Base pay of $60k 40 hour work weeks usually. We owned a house. I took a field position that was meant to be 1 year and if the wife and kids liked it we could probably stay longer and go to more places. We went to South Korea. Things got kind of bad and we talked about divorce or at least separation. While talking about how to divide things up, we came to a verbal agreement on most things. She asked me to write it down with real numbers so I did. Once I did that she didn't want to sign it. Why? I can only speculate, but she then started saying that "Now is not the time for divorce" Nothing more. I won't speculate on what she meant either as I'm always wrong. She left on May 5th. She started getting therapy as did I. I was hoping and she said we could get counseling when I got home for vacation in July. Our house was listed for sale and we got a contract on it and are renting it out until Nevember when it should sell. She then found herself a nice rental home that was more expensive than our house and just had to have it and it was within a mile of her parents house and she did not consult me on what I thought of it. I gave a few thoughts, but she didn't care as it was her place. We were also positioned to take a job in Palmdale Ca because she didn't want to stay in Korea and it didn't have rotations to Iraq which she didn't want me to do. 4 days before I went home for vacation or about July 11th she said she didn't want to work on the marriage and wanted a divorce and couldn't live with me. I could stay with my parents. Sounds pretty clear cut like a separation to me and it started on May when she left, but she seems to think it shouldn't start until she filed last week. To continue though, I was home for 3 weeks, then left for Iraq for 4 months and then back to Korea 1 month before returning hopefully to Utah, but I have no job at the moment due to this divorce.

Also I'm trying to find out legally if you can base child support on my field money or if it goes off a 40 hour work wee for Utah. I get per diem for whatever site I am at on top of my base pay. They pay you to maintain a house in your home state and since they could have you move any time they pay you housing and food for wherever you are at. Expense reimbursement, not income per say even though you have to pay tax on it.

I hear they also look at standard of living. Our standard of living in Korea was very low and cheap which my lawyer thinks is when we separated and would use those #'s. I'm not sure if they would use that, or her current one that is way more than it should have to be, but she didn't care how much it cost since she wasn't paying for it and I believe looking to make her standard of living high on paper so she could get more. They might also look at our living from before we left for. Not sure. Any ideas of a legal answer? She has increased her standard of living beyond what it ever was since she decided she wanted divorce.

Also, I left her enough money to last until January with her not having a job when I left and can add more as needed if circumstances require it for a real reason other than her spending too much. She has a job now and says it's because I have left her with nothing even though she is set to get 1/2 the equity in the house in November which would be $50k. Would I be required to pay her more now because she chose to divorce and spend what she has on a lawyer instead of living expenses? Her job doesn't pay much. Like $1000 take home a month. I'm sure I have spent that just emailing a lawyer 1 week, but it's worth it to me since she's grabbing for my balls.

 

[mistoffolees]

Who cares what date the separation started? It's completely irrelevant. There is legal separation in UT, but that starts when you file for and are granted legal separation papers. UT is not one of the states where you must live separately for a year to get a divorce, so stop worrying about it.

First thing you've got to learn is that she can ask for the sun and the moon but she won't get everything she asks for. She will get 1/2 of the marital portion of any assets you have. If she files for divorce, she will not be able to hide money from the court. However, the money you gave her is probably a gift and she can spend it on whatever she wishes at this point (although if she actually files for divorce, that can change in principle, but in practice if she wants to go on a nice vacation or get her hair done 3 times a week, the court isn't going to care). Legal expenses are certainly OK.

I can't imagine why your standard of living in Korea would be at all relevant. You had a house in the US and were on temporary assignment. Besides, the court is going to look at your income, not how much you might have spent on housing last year when you were in Korea. You're earning considerably more than her and were married over 10 years, so spousal support is definitely a possibility - both during the divorce process and for some time afterwards.

You really need to see a lawyer.

 

[frostbyte3964]

My av rated lawyer said it goes off when you separated. That is why I ask to verify things. He also said it is based on your standard and cost of living at the time of separation as well as income. Overseas pay is not a standard thing and most is a per diem which is meant for expense reimbursement. I will be getting prepaid legal on top of my lawyer as I like to know things now and want the piece of mind. It sounds like lots of opinions with no fact docs here. I've read most of the Utah legal papers I found and lots of this is not in them spelled out. It has very specific lists of what income is, but doesn't say anything ever about per diem. There are lots of unwritten laws or just judges discression stuff.

 

[mistoffolees]

My av rated lawyer said it goes off when you separated.

WHAT goes off when you separated?

The per diem is a difficult one to answer. Simplest argument is that it is simply reimbursement for expenses and is therefore not considered income (a true per diem would not, for example, appear on your W-2). OTOH, if the payment is payment in excess of expenses to compensate you for inconvenience, then the surplus amount would be taxable income - and therefore relevant for alimony calculations. If that per diem ends now that you're back in the US, it will be irrelevant (technically, it could be considered, but as soon as you tell the judge it is over, they should drop it).

I think your attorney is trying to play games. What is going to be relevant is what you earn and what your living expenses are NOW. Sure, your attorney could propose that alimony be based on the past 12 months living expenses and income, but if her attorney is any good at all, he/she will explain to the judge that you were living in Korea at the time and are no longer living in Korea, so that information is irrelevant and the decision must be based on current reality. I can't imagine a judge who wouldn't accept that argument - and it will make you and your attorney look bad to be pushing the Korea cost of living in the first place.

 

[frostbyte3964]

What ends when you separate is 1/2. It goes to just child support and alimony. If I chose to save money still she does not get 1/2 that as well. I'm sure I have had a very lavish lifestyle though and all my money is gone or soon will be.

You can't even use current living though. She increased her standard of living when we separated. If any arguement can be made, it would go off of when we lived in the US together. She can't just go buy a million dollar home and call that her new standard of living.

Even if my company payed to move us to a new site which they were going to do with a $50k moving package, that is taxed just like the per diem and reported on my W-2.

I am also in Iraq. I can't have any form of rent, own, etc. I am in government provided military housing that is surrounded by huge cement structures to protect me from bombs. Sound like a lavish lifestyle? I'll just go home and buy an equally expensive place so both of us have the same standard of living only my pay there would not support both of us to have the same level that she is currently chosing to have and a court will not grant her that more than likely. I have to have a place for my boys too even if she does have custody.

 

[mistoffolees]

What ends when you separate is 1/2. It goes to just child support and alimony. If I chose to save money still she does not get 1/2 that as well. I'm sure I have had a very lavish lifestyle though and all my money is gone or soon will be.

You can't even use current living though. She increased her standard of living when we separated. If any arguement can be made, it would go off of when we lived in the US together. She can't just go buy a million dollar home and call that her new standard of living.

Even if my company payed to move us to a new site which they were going to do with a $50k moving package, that is taxed just like the per diem and reported on my W-2.

I am also in Iraq. I can't have any form of rent, own, etc. I am in government provided military housing that is surrounded by huge cement structures to protect me from bombs. Sound like a lavish lifestyle? I'll just go home and buy an equally expensive place so both of us have the same standard of living only my pay there would not support both of us to have the same level that she is currently chosing to have and a court will not grant her that more than likely. I have to have a place for my boys too even if she does have custody.

You're jumping to conclusions.

While you can't claim that the Korea expense is reasonable, she will also not be able to expect you to support her at a lavish level. Basically, if you had a particular lifestyle while you were married, that is the lifestyle that will be the basis, but at U.S. cost, not Korea cost. Otherwise, you could give her $50 per month and say she can live like a queen - if only she'll move to China.

Judges aren't stupid. They're going to get upset if either of you is playing silly games (either expecting someone in the US to live on a Korean cost of living or living lavishly and expecting the other person to pay for it). If you approach it trying to do what is fair, you'll probably be less disappointed in the outcome.

Bottom line is that you're each entitled to 1/2 of marital equity. Once you have filed for divorce, you are free to set up a separate account and save your money there. But until one of you files for divorce, you're married - and you can't easily say 'this is mine' (other than inheritance or money you brought into the marriage).

 

[frostbyte3964]

I'm fine with 1/2, but not 1/2 after she decided to leave. I'm also fine with dividing our Utah pay so we both end up with approximately the same minus actual child expenses for whoever has them, but what is not fair is saying the $12k I gave her to live on until I got back from Iraq is not included in 1/2 if my money is included as 1/2. What isn't fair is if she gets to spend more than $1000 a month extra beyond what it should take to live like she always had and expect me to claim $0 because I'm in Iraq. What I think is fair is going off our old cost of living when we were together and in the US. If she wants to spend extra or her savings on a better lifestyle, that's fine, but not at my expense. If take home $3000 and she takes home $1000 a month currently then approx $2000 each should be fair. I would have the same expenses she has other than food and child care.

It doesn't really matter if there isn't a law. It will just be what a judge says.