Legal Question in Family Law in California
I was married for amost 19 years with two kids 16 and 19. I have been legaly separated for 14 months. Right now my ex pays all the bills because of the fact I have been a house wife and If we sold the house it would create a huge problem of where we would live, plus my daughter is in her seinor year of high school. I am concerned that if I do not file for a divorce I may lose out on alimony payments when we do. Also I would like my fair share of his 401k and retierment plans and I would like them now so I can make my own retierment plalns. Will I loss out on alimony payments and can I get part of his 401k and pension?
1 Answer from Attorneys
I think for starters you are wrong about being legally separated. Legal separations are extremely rare, because they require pretty much all of the same procedures as a divorce, only at the end you are still married. The property is divided, alimony and child support are ordered, etc., all the same as a divorce. Turning to your questions, I am not sure why you think you would lose out on spousal support payments (the proper term is spousal support, not "alimony," in California). Spousal support is based on a number of factors, but primarily earnings or earning capacity of each spouse and the need for support. When you file has some technical legal effects, but nothing really relevant to what you get, though it has an impact on how long (longer the marriage, the longer support is presumed to be needed (though that presumption can be overturned). The same is true for the 401k and pension. Why would you lose out on your share of those assets? It sounds like there is a very great deal that you do not understand about divorce. If you would like to make an appointment I would be happy to sit down with you in my Walnut Creek office to go over your situaion and options, at no obligation or cost.