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mc z

Junior Member
California
Hello,
Separated, wife moved out in Oct 04. She works full time and earns enough to get by but I am giving her a monthly check. We have two apartments we rent and she is also intercepting rental income from 1 of our two tenants (her sister). No divorce proceedings or formal separation yet. Does the amount of money she currently receives set a precedence that I'll regret?
Thank you
 


momtooo

Junior Member
Here's what I think...

My boyfriend paid all the bills when he left his now ex-wife. They did not file legal separation until six months after he left. However, he put money in their joint checking account and he kept the bank deposit slips in order for her to pay the bills. Now, before I go on, anything you pay before filing legal separation does not count. It only helped my boyfriend by not paying alimony. Here's how. The lawyers (his included) kept saying property matters were settled and the joint bank account was property. Yet it wasn't property. It's an asset. He could show that he put money in the joint checking account by having the deposit slips and that she would need to split the account. No matter if she paid the bills with it or not. They dropped the alimony because she would not get life time support. They figured she would get only two years of alimony around $150.00 per month. She would have a tax liability on the alimony and the difference in the amount he deposited and the amount of alimony she would get would cost her more in the long run.

If you do plan to get a divorce, I would come to terms with my soon to be ex before you file. Settle how property is to be split or sold, money division, child support, etc. Because if you don't end up with an agreement before you see a lawyer, you'll both rack up large attorney fees. The attorney's will end up with the money and you'll both end up with nothing. If you can't settle before filing, go to mediation together. But for God's sake, never sign an "agreed 14 day waiver" when it comes to property until you have what you think is fair. Never tell your attorney that you want this and that for now. Tell him everything you want at your first meeting. Don't forget your rental property, who will live in the house, if the house is to be sold, how the money is to be split, contents of household goods, who is to pay what bills, guardianship of the children, etc. Take all your bills with you when you meet your attorney for the first time. Also take your pay stub and tell him what your wifes take home pay is. Make sure he spells out when filing who is to pay certain bills. Make sure your name is off all joint credit accounts too if your just a user of the credit account. I'd do this now.

My boyfriends ex contested the divorce when he filed. She asked for child support and payment for all the bills. The child support office didn't notify him nor did his lawyer until two months after the child support and order for payment of all the bills took effect. So he ended up being two months behind and she filed contempt charges just before their first hearing with the attorneys was scheduled. Even though he deposited money into the joint checking account for those two months for payment of the bills. It was deemed a gift. He only had the clothes on his back more or less. They forced him to sign the "agreed 14 day waiver" at that hearing which settled all property. They told him if he didn't sign it, then he would be held in contempt and go to jail for non-payment. So, she ended up with all the property, the proceeds from the sale of their land etc. He was screwed. Then because she didn't want to take any of the bills, they forced them into bankruptcy to settle the matter and he ended up paying more in child support. Never believe that you'll go to jail on the first contempt charge. His attorney even admitted that it would take 5 or 6 contempt charges before the judge would consider jail. His attorney told him this after he signed the "agreed 14 day waiver." They bullied him into signing. Remember, her lawyer and even your own attorney want to settle matters quickly. No matter who gets hurt or screwed. The judge wants the divorce off their docket and the attorneys know it and the attorneys don't want to piss off the judge.

Make sure you have a good attorney that will go to bat for you. Check out complaints with the BBB, the Bar Association etc. before you decide on an attorney. The yellow pages is not a good place to find an attorney. Call the Bar Association. I also think it's best to find an attorney in the next county who is license to practice in both counties. He is more likely to work in his own county than yours and isn't friends with all the attorneys in the county where you reside. This way you have an edge instead of having an attorney in the same county who knows and are friends with each other. I can tell you stories that I overheard while sitting in the hallway between attorneys. They are friends and don't give a damn about either of you. They'll settle more in favor with your wife than you. They owe each other favors. Tell your attorney what you expect from him and write it down in the contract with your attorney. Don't take his word that he will keep in touch with you. He'll fail to send you copied of your orders, return your phone calls, etc. Spell it all out in the contract with your attorney. If your attorney doesn't agree to put your terms into the contact, then you know it's time to find another attorney.

I should also note, most courts are online now and you can follow your case online.

Remember that everytime you speak with your attorney, he is billing you. This is why I said it's best for you and your wife to agree on matters prior to filing for a divorce. So both of you end up with the money in your pockets. My boyfriend ended up paying $6,500 + for his attorney. I'm sure his ex paid about the same. The divorce took a year and a half because she kept wanting more and there was nothing to get and they had to wait until the bankruptcy was completed before they would grant the divorce.

Please know that most divorce matters are settled with the attorneys before you even see the judge. All the judge does is see that all matters were handled and hits the gavel and your divorced.

Please also note, my boyfriend filed first. The day he filed he had an opportunity to file for guardianship of his children and pick them up that day. But my boyfriend said, "No, I want my kids to decide where they want to live." Well, when his ex filed and contested the divorce, she filed for guardianship of the kids. Lets just put it this way, who ever files for guardianship first ends up with the kids. Don't believe children have a right to decide where they want to live. The judge may listen, but in most cases they don't even bother.

So, my advice is to stop giving her a monthly check. Deposit enough money into the joint checking account to cover the bills you agreed to pay until you file for divorce. Stop depositing money into the joint checking account once you file and pay the bills direct. Remember, anything you give to her before filing is a gift. Once you've filed and are ordered to pay certain bills, do not give her any money. If you do, it's considered a gift. Setup your own checking account now. That way you can start paying the bills direct once you've filed and are ordered to pay certain bills.

I do have one question for you. Who is paying the mortgage and taxes on the rental property? If she is getting half the rental income, then she should pay half the mortgage and property taxes. This way it shows your both responsible for the property and it won't look like your giving her extra income. If she is just intercepting the money from her sister, then you should take her sister to court for non-payment of rent. How is the lease written? Send you wife a copy of the mortgage and tax bill each month and write what her half is and either pay you or the mortgage company direct. I'd opt for her to pay the mortgage company direct because then she'll know if she defaults, the property will go into foreclosure. Tell her that your only paying half the mortgage and what will result if she doesn't pay. I'm sure she won't want to lose the income.

Good luck!
 

mc z

Junior Member
Thanks a lot, there is plently helpful advice there. Not sure if I can bring myself to act first, However I want to protect myself any way possible. I'm quite sure she does not plan to go easy on me. As to your question, I pay everything now (and then). Her income was used for her health, auto, and my life ins. and some household expenses.
If I opt to continue to fund her I should do it by depositing into our joint savings and keep records . This will accumulate as a asset for me and a debt for her if we are to split it all at some point, correct? I understand and agree on the property income/expense issue and will take that coarse if she files on me. However the lease agreement is non existent with her sister. By paying for the property while my wife keeps 1/2 the rent am I giving a gift? If I file a judgement on her sister now, would it prevent my paying for the property from being classified as a gift?
Is there a way to quietly go on record as the first to file for guardian ship without filing or serving the divorce?
Thanks again
 

nextwife

Senior Member
The IMPORTANT question is how long you were married, and whether these rentals are marital or premarital property.

Both MARITAL assets and debts will be divided between you. Was the marriage less than 10 years?
 

mc z

Junior Member
We have been married 8 years. I had lived alone at the property for 2 years with a lease to purchase agreement with the owner. Just after our marriage we purchased the property together.
When the assets are divided is there any consideration for the fact that I make all the payments but only collect 1/2" the rental income.
Thank you
 

LdiJ

Senior Member
mc z said:
We have been married 8 years. I had lived alone at the property for 2 years with a lease to purchase agreement with the owner. Just after our marriage we purchased the property together.
When the assets are divided is there any consideration for the fact that I make all the payments but only collect 1/2" the rental income.
Thank you
Ok...I disagree with the previous advice that you got that depositing money in a joint account results in an "asset" for you. It might, it might not. It all depends on how the money is spent, if spent.

If you purchased the home together then its marital property and she is entitled to her half of the equity. You may end up getting some consideration in the property settlement regarding the rental income....but if the rental units are also marital property she is going to be entitled to half the equity there as well.

Make sure that you have a good attorney and really stay on top of the details of the financial settlement.
 

nextwife

Senior Member
If you have been living apart two of 8 years, only married a total of 8, spousal support is unlikely. Get an attorney and file for divorce before more marriage time occurs.
 

momtooo

Junior Member
As far as money into the joint checking account... the money in the account is considered an asset of the marriage, not property. Both of you are entitled to the asset even if you are only funding the account. If you can show you made the deposits into the account, then she is only entitled to half of the money. If she spends all the money in the account then she would need to give you back half. It doesn't matter how she spent the money ie. pay bills etc. You should not give her a check each month, but deposit the money into a joint checking account and only deposit what is needed for her expenses. You should not use this account to withdraw money or pay bills either. Keep a separate account for yourself to pay your expenses. My boyfriend was told this by a Domestic Relations Court Judge in the next county, who is friends with his Grandmother. They consulted him when her repeated request for alimony was holding up the divorce settlement. Lets just put it this way... no matter what the money was used for, when it comes down to alimony, you can use the money put into the account as a lump sum settlement for alimony or she would need to give you half the money because it's considered an asset and would be split. More than likely she wouldn't have it. My boyfriends ex tried to say she deposited the money into the account and it was her tax refund. But my boyfriend had proof of the deposits. Her attorney said that my boyfriend would then need to split half of his tax refund. My boyfriend said okay he'll split his refund as well as hers, as well as the money he deposited into the joint checking account, and immediately the alimony issue was dropped. However, it was agreed that she would not split and would keep the money deposited into the checking account as well as her tax refund nor show it as a lump sum alimony payment because she would have incurred a tax liability. The joint checking account money is another way to bargain. Since you are already giving her a monthly check, it may look as though it's a gift. So why not put the money into a joint checking account instead and use it as a bargaining chip later on.

I should note that any money or expenses paid prior to filing for divorce would not count during the divorce proceedings. The court would view this as normal expenses of the marriage. Any money given to her during the divorce proceeding is considered a gift.

One other thing I want to mention. Your state may say it's a 50/50 state as far as asset and property division. My boyfriends state is 50/50. However, the attorneys viewed what was fair and equitable and everything was not split 50/50. She got everything because of the way the "agreed 14-day wavier" was written. He was tricked even by his own lawyer. Make sure you ask for explanations of terms before signing anything. The "agreed 14-day waiver" put a final stamp on property settlement issues.

As far as gaining guardianship of the children without proceeding or filing for legal separtion or divorce, you both are considered legal guardians now. Without filing for a legal separation or divorce, you nor she have sole guardianship. Believe me... if she files for legal separation or divorce, she will file for guardianship at the same time and more than likely she will endup with the children in the final proceedings.

I can't understand why you do not have a lease agreement with your sister-in-law. The rental property is a business. I doubt that you have a leg to stand on if you try to collect rent from her without a lease agreement. At this point you could only have her evicted which would need a formal order by the court through a legal proceeding. You can't just tell her to move out. She has tenant rights weather or not there is a lease agreement in place and you will need to follow the letter of the law when it comes to eviction or you will be in trouble.

As far as you wife intercepting her sisters rent check each month, it's considered joint income and she is entitled to receive payment. Not sure how the court would view it.

If it's been two years since you lived together, what is holding you up?

Good luck ;)
 
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