Division of assets during divorce

[gaggz]

What is the name of your state? California

Hi All
1. We live in Los Angeles county. My wife wants to move out of marriage, she said "its not you its me". Her nature changed suddenly, she lost all interest in marriage and she just wants to be by herself (I do not think she has someone else in her life). She has filed for a divorce and moved out to a rental apartment couple of weeks ago. Divorce is amicable, she has already paid $5,000 to her lawyer. I have a lawyer through a legal plan which is free for me as long as divorce is amicable. However, I did ask my lawyer one question and she is trying to figure out the redressal to the situation. I would be grateful if someone who knows similar situation could guide me or provide me a case referral (like abc vs xyz who won similar situation). Here is the situation:

In September 2020 (I was then married and am currently still married to my wife as divorce is pending) my father gave me $80,000 as gift solely for me, into one of my checking accounts. Transfer was from overseas as he sold a property that I was supposed to inherit sometime in future. He changed his mind, sold the property early - he was the sole owner (sold early to save me the hassle of selling the same overseas in future after I had inherited the property), then wired me the money from overseas as a gift. When he made the transfer, I had recently had purchased a Tesla in July 2020 and had an auto loan on me. In Feb 2021, I used $40,000 of the gift money to pay off the tesla. I have all traces of bank transfers (from my 2 checking accounts [note: I received 80k in only one checking account] into auto loan account) to pay off the tesla, across 2-3 transactions. Now that the divorce was filed in Oct 2021, my wife says that I willfully used my gift money to pay off tesla, so now I have no right over the $40,000 used to pay off the tesla loan .... means, she says half of the current car value is hers, whereas I am saying that half of (current car value minus 40,000) is hers as I used my gift money to relieve myself of the loan.

Can someone please help me out? what share of car is rightfully her and mine? I asked my friends and a corporate lawyer friend (not family lawyer) and an accountant friend, they say she cannot claim stake in 40k used to pay off the car.... please help!

2 Another question, not a high priority but please do answer if you can... my wife makes 70,000 less than me. She has about 10,000 estimated in her bank account and she moved out of house by her own will (she could have stayed with me until case was decided). Now her lawyer is saying she has to pay rent, grocery, bills etc and makes less money than me, and is asking 10k retainership from me. Why should I pay for her attorney? She is going to get a lot of money, over 150k, very soon as I am buying out the house from her (it is a small chance house may get sold as well, she will get money any ways). Her lawyer knows that. My lawyer and I unanimously agreed I should not be footing her lawyer's bills, but why is the husband liable to pay for wife's lawyer when wife herself wants a divorce (I don't), is making decent amount, can be on her lawyer's payment plan/ pay her lawyer using home buyout money? Why are we men penalized so much?

(FYI - other than house, Tesla, and old corolla which my wife wants, we only have a third asset: good amount in 401k - we are going to have a QDRO attorney have a look at those. 2 kids, 50-50 custody in 2-2-5-5 schedule, I am ready to pay her child support and spouse support. Yes, she does not deserve it the way she has treated me but I have to pay wife support per law!)

Please help me out on the above, the #1 is very important to me. State is California. Thanks in advance

 

[adjusterjack]

Guess what, dude. No longer amicable.

I was divorced in Arizona, another community property state, so I know something about community property.

Start by understanding that whatever was yours before you were married stays yours unless you made the mistake of commingling it with community income and assets.

Anything you acquired and earned during the marriage belongs equally to both of you (ditto your wife) except for the gift, unless you commingled it, or part of it, with community assets, which it appears you might have done.

I had recently had purchased a Tesla in July 2020 and had an auto loan on me.

Assuming you made a down payment and made payments from community funds (your earnings, any savings accumulated during the marriage, etc) then the car is community property and community debt.

I used $40,000 of the gift money to pay off the tesla.

Commingling the $40,000 into a community asset makes the resulting equity in the car a community asset subject to division under community property laws.

Now that the divorce was filed in Oct 2021, my wife says that I willfully used my gift money to pay off tesla, so now I have no right over the $40,000 used to pay off the tesla loan .... means, she says half of the current car value is hers, whereas I am saying that half of (current car value minus 40,000) is hers as I used my gift money to relieve myself of the loan.

Sorry, she's right.

Had you put the gift money into a sole and separate account by itself, never added to it or used it for marital expenses it could have stayed your sole and separate property and the car loan would have been a community debt even though it was just in your name.

what share of car is rightfully her and mine?

Half the equity is hers.

I asked my friends and a corporate lawyer friend (not family lawyer)

Ask your DIVORCE lawyer.

2 Another question, not a high priority but please do answer if you can... my wife makes 70,000 less than me. She has about 10,000 estimated in her bank account and she moved out of house by her own will (she could have stayed with me until case was decided). Now her lawyer is saying she has to pay rent, grocery, bills etc and makes less money than me, and is asking 10k retainership from me.

Never take legal advice from the enemy.

Why should I pay for her attorney?

Well, maybe you shouldn't. And you can certainly refuse. And then your divorce gets hostile and you and she will make two lawyers very happy while they redistribute your money into their bank accounts.

Why are we men penalized so much?

Because of the traditional income disparity between men and women. They get it back during divorce. To be fair, though, if she were making $70,000 more than you and had just spent $40,000 on a Tesla you'd be wanting a piece of all that, too.

other than house, Tesla, and old corolla which my wife wants, we only have a third asset: good amount in 401k

Whatever went into your 401(k) during the marriage and whatever was earned on it during the marriage gets split 50/50.

we are going to have a QDRO attorney have a look at those.

"those"? Then you each have one? Then they will each be divided 50/50.

she does not deserve it the way she has treated me

Irrelevant. Divorce is no-fault.

but I have to pay wife support per law!

Child support by law, computed per California guidelines.

Spousal support, maybe. That's a different thing and depends on a lot of factors and might be negotiable.

Again, talk to your DIVORCE lawyer.

Not the corporate lawyer, not your friends, not your auto mechanic, not your pool cleaner, etc.

 

[zddoodah]

I have a lawyer through a legal plan which is free for me as long as divorce is amicable.

How does the plan define "amicable"?

Can someone please help me out? what share of car is rightfully her and mine?

The issue is one of tracing. Gather every bit of paperwork relating to the money you received from your father, every bank statement, and everything relating to the car, the loan and payments made on the loan. If your evidence is good, the $40k should be regarded as your separate property. The problem is that the car itself is community property, so you'll have a bit of a messy situation. However, I disagree with the absolute nature of the answers in the prior response.

Why should I pay for her attorney?

You answered your own question when you wrote that your "wife makes 70,000 less than" you do.

She is going to get a lot of money, over 150k, very soon as I am buying out the house from her

Ok...and there's an argument you can make against you having to pay for her lawyer but...oops...your case is no longer "amicable" by any sensible definition of that term.

My lawyer and I unanimously agreed I should not be footing her lawyer's bills

Disclosing in a public forum otherwise privileged communications between you and your lawyer is not a good idea. You should let your lawyer know that you did this so that there are no surprises in the future.

why is the husband liable to pay for wife's lawyer when wife herself wants a divorce (I don't), is making decent amount, can be on her lawyer's payment plan/ pay her lawyer using home buyout money? Why are we men penalized so much?

This has nothing to do with gender. It has to do with income inequality.

 

[AlmostThere]

Just an observation. You seem to not want to spend money on attorneys. That is frequently a very poor decision. Spending 5-10k now can save you far more in the distribution, and in your mental health.

 

[gaggz]

Thank you so much for your help. I am trying to avoid any charges, expenditures and fees as I need every penny to buy out this house from wife and if possible, save the Tesla. I do have a backup option to sell Tesla & cash 401k funds and do have a friend willing to sell an old lexus until I gather money to buy a new car... Its just not fair. My wife did not want to work because she was so choosy with what she wanted to do. For a brief time, she was even made a CEO of my consulting company with one client, and could have grown the business easily, but of course she will do what she wants and shut down the business. She did not work for about 10 years, whereas she could easily have, now she is demanding every penny out of me. Very bad how the laws of this state are made, we definitely should have an "at fault" divorce provision...

 

[adjusterjack]

Be thankful it's no-fault or you'd be spending $100,000 on litigation trying to prove fault. Then you'll have to pay for counselling for your kids because they'll be emotional wrecks from the hostilities.

 

[Ohiogal]

Thank you so much for your help. I am trying to avoid any charges, expenditures and fees as I need every penny to buy out this house from wife and if possible, save the Tesla. I do have a backup option to sell Tesla & cash 401k funds and do have a friend willing to sell an old lexus until I gather money to buy a new car... Its just not fair. My wife did not want to work because she was so choosy with what she wanted to do. For a brief time, she was even made a CEO of my consulting company with one client, and could have grown the business easily, but of course she will do what she wants and shut down the business. She did not work for about 10 years, whereas she could easily have, now she is demanding every penny out of me. Very bad how the laws of this state are made, we definitely should have an "at fault" divorce provision...

10 years your wife did not work and you were fine with it. You can't deny that. Why? Because if you weren't fine with it, you could have divorced her then. Every penny out of you? It is marital property. She is demanding her portion of the marital property.

 

[gaggz]

Be thankful it's no-fault or you'd be spending $100,000 on litigation trying to prove fault. Then you'll have to pay for counselling for your kids because they'll be emotional wrecks from the hostilities.

very good point! I did not think from this angle!

 

[gaggz]

10 years your wife did not work and you were fine with it. You can't deny that. Why? Because if you weren't fine with it, you could have divorced her then. Every penny out of you? It is marital property. She is demanding her portion of the marital property.

No, I was not fine with her not working. We had several discussions. It always resulted in a fight. She is a foreign MD and very capable of doing some kind of healthcare or management job. For me it was about tolerating her likes and dislikes vs having a mom for kids, so never thought of a divorce. I work from home, do all the laundry, dishes, mop floors and even started cooking frequently each week when restaurants were closed during covid, so that the family got fresh food. I took kids for karate, tennis and other classes as required. I believe this spoilt her further to a point where relationship could only turn sour. I always cook fresh for kids even during current 50-50 physical custody schedule...

 

[Zigner]

No, I was not fine with her not working. ... For me it was about tolerating her likes and dislikes vs having a mom for kids, so never thought of a divorce.

Right - you decided it was fine for her not to work so that she could be a mother to the children.

 

[not2cleverRed]

Very bad how the laws of this state are made, we definitely should have an "at fault" divorce provision...

I thought she was the one asking for the divorce.

Do you wish that she include in her filing what an inadequate husband you are? Perhaps she thinks you are wasteful with money, for example.

 

[Ohiogal]

I thought she was the one asking for the divorce.

Do you wish that she include in her filing what an inadequate husband you are? Perhaps she thinks you are wasteful with money, for example.

Or controlling -- which would actually translate to abusive under most state's laws.

 

[gaggz]

@not2cleverRed and @Ohiogal ... And what exactly are you basing your deductions from? Do you have the entire life's story of mine and hers to come to a conclusion? I thought you lawyers base off facts... Most welcome to give your opinions, but doesn't give a good character to your words. And of course doesn't help either party with the case... !

 

[Ohiogal]

@not2cleverRed and @Ohiogal ... And what exactly are you basing your deductions from? Do you have the entire life's story of mine and hers to come to a conclusion? I thought you lawyers base off facts... Most welcome to give your opinions, but doesn't give a good character to your words. And of course doesn't help either party with the case... !

I am basing it on what you have stated. And no one said you are. Also, you didn't read the TOS, now did you? Your ignorance shows. Your words don't present a good character of you.