Legal Question in Family Law in California

I've reached the end of my line. I want a divorce from my marriage but I am involved in a lawsuit that will pay out a lot of money. I want her to have 15%. If I divorce after the resolution to the suit she'll get 50%. Am I correct? She can have 15%. How can I do this.

Asked on 5/24/13, 7:46 am

3 Answers from Attorneys

Phillip D. Wheeler, Esq. Phillip D. Wheeler, Attorney At Law

If the activities leading up to the lawsuit occurred during marriage then your spouse will be entitled to 50% per California Community Property. HOWEVER, this is just my response to the information you have provided. It COULD be much more advanced and complicated depending on the facts. For example, if it is a lawsuit involving personal injury to you, sometimes all monies related to your medical care could be yours.

Community Property is so convoluted and technical that you either need to provide more information here or (in my opinion) obtain a smart lawyer.

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Answered on 5/24/13, 8:09 am

Anthony Roach Law Office of Anthony A. Roach

It depends on what the lawsuit is for, and not necessarily when the events occurred. For example, if you used separate funds, during marriage to buy separate property real estate, and are now suing for fraud, then any settlement or recovery would be your separate property. An attorney would have to understand the underlying nature of the lawsuit that you are in to tell you whether or not any recovery is community property or not.

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Answered on 5/24/13, 8:28 am
Timothy McCormick Libris Solutions - Dispute Resolution Services

Mr. Wheeler and Mr. Roach are both mostly right, but unclear. What definitely does NOT matter, is when you file for divorce. Lawsuit proceeds are for past events, so they have had their community, quasi-community, or separate property status from when the events giving rise to the lawsuit happened, and will not change in nature or percentage depending on whether you file now or later. The only exception is if you have continuing damages, such as lost income from being disabled by an accident, that are still accumulating at this time. In that case filing sooner rather than later will give a smaller share to the community. As for how much if any of the proceeds your spouse would be entitled to, that depends on BOTH what they are for AND when the right to sue arose. Figuring that out can be very simple or very complicated. If you were wrongfully terminated a year into the marriage and are claiming lost wages for three years, and you were married for five, all the proceeds, since they replace wages that should have been earned during the marriage, will be community property 50/50. If you are suing for personal injury that occurred a year ago and you have pain and suffering, medical bills, and lost work that is continuing to affect you and will in the future, as well as needing future medical care for the injury, you have an incredibly complex situation as far as what parts of the damages are your separate property and what are community, and to some extent you can manipulate that with how you settle the case, and when you file for divorce. But the bottom line is that you have to sit down with a Family Law attorney and go over your specific situation to have any idea how things will be split and anything you might be able to do to tilt that in your favor.

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Answered on 5/24/13, 9:48 am

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