Here’s the situation, wife wants to “hide” and protect money set aside for savings and retirement, etc. from husband with major gambling problem. Will having a savings or brokerage account in her name and a daughter’s name only be sufficient to protect from any “legal” proceedings (eg. Divorce, separation) or does the account need to be placed in a living trust or other estate planning tool? This issue seems to me that the money put away constitutes as “community property” in CA. CA is a community and no-fault divorce state.
2006-08-28 11:46:58 · 9 answers · asked by ntoriano 4 in Politics & Government ➔ Law & Ethics
Be very careful of any answers given on YAHOO, particularly here. If the person is not a licensed attorney, he cannot legally give legal advice. This includes me, and the following is a general guide only. Legal advice from a licensed attorney should be obtained.
You really do need to talk to an attorney, and it should be an eclectic mix of an estate planning attorney and a family law attorney. You hit the problem on the head:
1. In most community property states, the debts of one spouse are presumed to be in the interest of the family, and creditors can go against the assets of both spouses. So you need to structure the plan to prevent a third party from taking the asset. One method for doing so would be an IRREVOCABLE trust, naming a third party trustee (daughter), who will use the assets for the benefit of the wife during her life, with the remainder (if any) to those to whom the wife would leave her property (like a will). It must be irrevocable, or the trust can be pierced by creditors. Furthermore, the trust should have a "spendthrift" provision, which will prevent creditors from attaching on the wife's "expectancy" or right to receive the funds.
2. THAT was the easy part. In most states, if one spouse takes marital funds (that is, any asset accrued during the marriage), and transfers them to a non-marital asset without the consent of the other spouse, then the asset goes back into the estate for divorce purposes. Then, the wife will bring a claim for "dissipation" of marital assets (against the husband for gambling), and the husband brings it against the wife. The problem is that dissipation is allowed in most states, as long as it is not done for the purpose of depriving the other spouse of the asset during dissolution. Thus, in a strange quirk, the wife (in this case) cannot show that deadbeat husband was dissipating the assets to deprive her of the assets at dissolution (he was just a bad gambler), but the HUSBAND would be able to show that she was, in fact, trying to protect the remaining assets from the husband.
Your issue is FAR too complicated for general advice. You really do need professional assistance, as the easy fixes you describe are fraught with legal implications that could be disasterous to wife.
GOOD LUCK
2006-08-28 15:38:48 · answer #1 · answered by robert_dod 6 · 1⤊ 0⤋
Find a good divorce lawyer. There are ways to partition community property during the marriage, but it's not something you can or should try to do on your own. It involves a partition agreement, and that needs to be worded in a very particular way.
2006-08-28 11:53:44 · answer #2 · answered by Catspaw 6 · 1⤊ 0⤋
I think that it also would depend on the regime when they got married. Well, in Mexico, one could get married using a 'separate goods' or 'common goods', meaning that in separate goods each person can have their own money and properties. Older couples used common goods, in which all the properties were of the couple, and in the case of a divorce, they must be divided. I just don't know about that in the US.
2006-08-28 11:51:08 · answer #3 · answered by Roberto 7 · 0⤊ 1⤋
Check with a lawyer on this one. I would think that putting it into a trust of some kind would be the best bet. If it's under her name, he could take half. She can legally gift her daughter with up to $10,000 per year, without the daughter being taxed on it. That may be a way to hide it from him too, if she implicitly trusts her daughter.
2006-08-28 11:51:19 · answer #4 · answered by mightymite1957 7 · 0⤊ 1⤋
yes if the account is just in her and her daughters name it should be safe. but to protect for a divorce it would probably be safer if it was only in the daughters name....That would also protect from the husband trying to get controlling interest over the money.
2006-08-28 11:50:59 · answer #5 · answered by conundrum_dragon 7 · 0⤊ 1⤋
NO!!! California is where the folks go when they WANT to divorce and get into the Savings and Estates of their spouses -- Sagings that the spouse had even from BEFORE they ever married the JERKS!!!!!! Can't advise you here - California takes too much in Divorce and gives to the party that NEVER wanted to work or save or do anything positive in a marriage and yes, it did support my ex's horrendous spending sprees.
2016-03-26 23:22:10 · answer #6 · answered by Anonymous · 0⤊ 0⤋
I would put it in daughters special savings account with moms access only.
2006-08-28 11:53:49 · answer #7 · answered by Anonymous · 0⤊ 1⤋
If you can't trust him, give him an ultimatum. Tell him to quit gambling or you'll leave. And carry through with it.
2006-08-28 11:50:05 · answer #8 · answered by Privratnik 5 · 0⤊ 1⤋
Cash, safety depoit box, faithfull son
2006-08-28 11:51:26 · answer #9 · answered by Scott B 4 · 0⤊ 1⤋