<p>Well the point is, that the facts will come out just like anything else: if it is litigated, through sworn testimony of witnesses in a court of law. </p>
<p>I think its a pretty good bet that you’ve heard only one side of the story, from one estranged spouse – and that the story you’ve heard has stretched some points and omitted others. </p>
<p>It could go any way, depending on who the judge believes and how the evidence comes out.</p>
<p>There are two sets of facts. Both sides believe they are right.</p>
<p>Calmom,</p>
<p>I think like you said before…the lawyers are going to win.</p>
<p>The point is, that WE don’t know the facts, and YOU don’t know the facts unless this is one of those situation where you are asking about yourself but pretending like its about somebody else (which I don’t have the impression that you would be prone to doing). You know what you’ve been told, but there are are all sorts of details that lawyers ask about and which get drawn out through discovery and depositions. Basically there is a presumption that most property acquired during marriage is community property unless a contrary intent is shown – but that is just a burden of proof issue. </p>
<p>I’m a little confused about scenario #1 – is there money owed because of the business loss? The community property to be divided is what exists at the time of the divorce – so the court will make a determination about liabilities for outstanding debts, but they aren’t typically interested interested in history-- unless the wife is claiming that the husband defrauded her out of the money. But someone who alleges fraud has the burden of proof. </p>
<p>Let’s simplify: let’s say that H & W have a joint checking account with $10,000 of community property in it. Each is authorized to write checks. H pays the bills and writes checks totalling $9,000 without telling W. There is $1000 in the account at the time of the divorce. </p>
<p>That would leave $1000 of community property, to be divided 50/50 (in California). W. doesn’t get to go back to reclaim money already spent, unless she is able to show intentional wrongdoing or an improper purpose in the spending. For example, if the checks were all going to pay for gifts for H’s mistress, W. might have a claim that H. is obligated to repay the community half of the amount he spent. But mere bad choices aren’t enough.</p>
<p>I dont know the facts. Both sides see the issue differently. </p>
<p>I am getting one side of the story, and I realize there is another side.</p>
<p>I cant be more specific.</p>
<p>I agree that it sounds like the attorneys may put in a lot of hours and end up helping reduce the couple’s assets considerably before all of this is resolved. I’d suspect that the remaining assets will be evenly divided, AFTER all debts and attorneys fees are paid. The longer they fight, the less there will be to divide.</p>
<p>Dstark, the only sensible thing you can tell your friends is that you don’t know and they should listen to the advice that their attorneys give, and try to reach a settlement if possible. The specifics of the money in dispute really doesn’t matter because there is likely other property in the mix as well, so a winning argument on point #1 might be offset or undermined by losing points #2, #3, and #4, which may be points that you haven’t been asked about or even stuff that hasn’t occurred to to whoever is talking to you, but is already at the top of the wish list for the opposing side’s attorney. </p>
<p>If these divorcing individuals are good friends of yours, the best advice you can give them is to let go of their anger, try to work toward a fairly quick settlement, and make plans to move on with their lives. </p>
<p>Personally, as far as I am concerned, any dispute about money is going to be resolved with a figure that is somewhere in the middle between the two positions. The lawyers jobs are to stake out the best case positions for their respective clients, and then use those figures as a starting point for negotiation. </p>
<p>Don’t steep yourself in the legalities – it really doesn’t help to have outsider’s second guessing what the lawyers are saying. If either of your friends is unhappy with their lawyers, they can always seek a second opinion from another lawyer.</p>
<p>I whole-heartedly agree with calmom. Also, PLEASE, if there are any children involved, please tell both parents that they need to put their kids FIRST and not make their kids tools for “getting back” at one another.</p>
<p>*
I dont know how you prove the facts.*</p>
<p>The H can’t. all he can show is that the couple had a history of allowing him to sign her name for these investment transactions, and possibly other transactions, and that this particular transaction wasn’t fraudulent (made in good faith). </p>
<p>If the couple had a history of transactions being handled in this manner, she can’t just “pick and choose” and make this one transaction an issue just because it lost money. Again, it’s not like she’s going to let him have all the money from the other transactions that made money. </p>
<p>If your facts are correct, then look at it from the situation that I am familiar with in the case of a friend of mine. The couple routinely signed each other’s names on various forms and financial transactions for years. A few months prior to the husband filing for divorce (which the wife didn’t know was going to happen), they rec’d a good-sized check with his name on it. She signed his name and deposited into their joint checking. The money went for bills (there wasn’t a claim that she used the money for herself or something outrageous.) After he filed for divorce, he tried to claim that she fraudulently signed his name and that she owed him that money. His atty told him that he was wrong since she would be able to show a history that this is how they ran their household and that this wouldn’t go anywhere in court. </p>
<p>Now I guess Calmom is saying that the H could have pressed on, maybe found another atty who’d agree to argue his case.</p>
<p>The quitclaim deed would likely be irrelevant unless they divorced immediately afterward: if you use community property to maintain a separate asset, that asset often becomes community property. Use community property (eg your paycheck, his paycheck, checking accounts that are not inheritances or entirely from money that predates the marriage) to pay the property tax bill or for a roof repair and congratulations, “your” house is now community property.</p>
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<p>I said nothing of the source. I said that these situations depend on specific fact situations and there are all sorts of questions that a lawyer would ask that aren’t presented by DStark - plus DStark cannot possibly know all the details, as he admits he has only heard one side of the story. The parties involved need to talk to their lawyers.</p>
<p>And I said repeatedly that they will do better to settle, looking at the big picture of all the financial issues, than litigate over contested facts. The one thing we know from DStark’s account is that the facts are contested. </p>
<p>As to the “proof” question: (“The H can’t.”) The way that things are “proved” in a court of law is through testimony of witnesses. In a trial, one would expect that the H would testify and the W would testify under oath. One or both may have other witnesses or documentary evidence, but if the only evidence was the H’s testimony, that would be sufficient to “prove” whatever he wants to prove, if the judge believes him. (It doesn’t matter whether he’s lying or telling the truth, it just matters what the judge believes – that’s just one more reason that the parties need to rely on their lawyers, who have had an opportunity to get to know their clients and observe their demeanor, mannerisms, and speech patterns and get a sense of whether they will be able to convince anyone of their position.)</p>