Friday, March 28, 2008

I do not want to be responsible for my spouse's debts...

Dear Famularo & Associates:
I just married my husband a month ago. We did not have a prenuptial agreement. I had intended to enter into a contract with my husband before marriage which stated that whatever money he borrowed during the marriage was his sole and separate obligation and I would not be responsible for the debt. I still want to enter into some type of agreement, but I do not know if it is too late. I also hope to buy a house in the near future. My husband does not work, so I do not think it is fair for the house to become community property. Is there anything I can do to keep our assets and debts separate in the event we divorce?
--H.L. in Murrieta

Dear H.L.-
According to California community property laws, all assets and debts accumulated during the marriage are divided equally unless the parties agree to a different arrangement. It sounds like you desire to enter into an arrangement with your husband whereby any and all assets and debts acquired in his name remain his sole and separate property, and any assets and debts acquired in your name remain your sole and separate property.

This agreement can be entered into at any time, even after the parties marry. If the agreement is entered before a marriage, it is called a prenuptial agreement. If the arrangement is made after the parties are already married, it is called a post nuptial agreement.

If you and your spouse both agree that all assets and debts acquired in each of your names should be your sole and separate property, then you need to put that agreement in writing. Make sure you clearly spell out the intention that any debts in your husband's name are his sole and separate obligation and any debts in your name are your sole and separate obligation- even if they are incurred during the marriage. Make sure you also specifically state that any assets accumulated in your husband's name only are his sole and separate property, and any assets accumulated in your name only are your sole and separate property. Your best bet is to hire an attorney to draft the agreement if you want to make sure it will be enforced in divorce court.

Famularo & Associates

Thursday, March 27, 2008

I want to change the divorce judgment...

Dear Famularo & Assocaites:
My millionaire husband used fraud, perjury and intimidation to keep all of our community property and to dispose of me during our divorce in 1992. After a ten year marriage, I only got $35,000. My husband also got custody of our young children, our co-owned two million dollar Malibu mansion, all of the cars and kept his millions. He tried to kill me twice. When his brother tried to help me legally, he threatened to have his brother's wife and children killed. My first, second, and third attorney all quit suddenly.

I was a victim of domestic violence during our marriage. I suffered three concussions and damage to my spine. My husband began bringing various young women home with him, ignoring my presence. My husband would often come home late, very drunk and would grab me by the hair, throw me down to the floor and start kicking me in the spine. I sought help shortly after our divorce and was diagnosed with post traumatic stress disorder.

I cannot understand how the divorce court failed me. Now, I want to expose him for what he is and claim all the money I should have received during the original divorce. I heard that I can file for a modification of the original divorce judgment. Is this true?
CM

Dear CM-
Unfortunately, you have waited too long to be able to change the terms of your original divorce judgment. Your divorce was final nearly sixteen years ago, and no divorce court will reopen the terms of your divorce settlement after all those years. It is true that everything your husband earned all those years ago would have been community property and you would have been entitled to it. Also, since your marriage was more than ten years, it was a "lengthy" one, making it likely that you would have also received some sort of spousal support.

Normally a divorce judgment cannot be set aside if it is more than six months old, and in extreme cases it can be set aside for up to two years. Your divorce has been final for sixteen years now. California has a strong public policy that once a judgment is entered, it should be final. Courts discourage parties from trying to go back and relitigate a judgment years later.

Too much time has gone by. It is time to put the past behind you. Be glad that you are no longer married to that man, and concentrate on starting over.

I want a divorce but I do not know where my spouse is...

Dear Famularo & Associates:
My wife left me for another man approximately two years ago and I haven't had contact with her since, nor do I know where she is living. I have been paying her credit card bills all of this time because I don't want my credit to be damaged by her not paying them. Am I responsible to pay them if she doesn't? I am not a co-signer on the cards nor are they joint accounts.

Also, we own a house in joint tenancy. Can I still file for divorce without knowing her whereabouts?
J.L. in Temecula

Dear J.L.-
Yes. You can file for a divorce even if you do not know the current whereabouts of your spouse. In order to finalize your divorce, you will have to serve the divorce by publishing the summons. You must tell the judge what efforts you have made to locate your spouse in order to get an order for publication. Once you serve your wife by publication, you can then take her default and then get a divorce judgment entered without her participation in the court proceedings.

If your wife has credit card debt in her name only, your credit will not be damaged if your wife does not pay her debt. Do not worry that something bad will happen to you if the debt is not kept current.

If you and your wife own a house together and you cannot find your spouse, it is highly likely the court will award you the house in the divorce as your sole and separate property.

Tuesday, March 25, 2008

My husband was already married. . .

My husband and I live in California. I did not know it, but he married me while he was still legally married to his first wife. I only learned about his first marriage when the woman he is now living with started spreading rumors about it. What is my stand as far as taking legal actions against bigamy. What is the legality of our marriage?
-JL in Santa Rosa

Dear JL-
Your marriage is invalid if your husband was married to someone else while married to you. This is called bigamy and means you were never properly married. While bigamy is a crime in the state of California, it is rarely prosecuted.

More importantly, your marriage is void and you need to file an annulment. You, however, are what is called a "putative wife." This means that because you attempted to marry your husband in good faith, you are still entitled to one-half of any property aquired during the marriage, and you are still entitled to spousal support if you need it. You should contact a family law attorney in your area!
-- Famularo & Associates