Who Should Leave the House

**HelpMeNow** · 07-03-2009, 10:41 AM

California: my husband and I have been married for just under 4 years. When we married, we both made the same amount of money. Since then, he became disabled, and at times unemployed or under-employed. While under-employed, my pay is what helped us survive until he got a settlement for his workers-compensation case. That got us back on our feet. There was a short period of time that he was unemployed and we pulled just what we needed out of the savings with the WC funds and basically lived off of my income. The savings was in a joint savings account with a savings bank. We're now ready to divorce and he has taken all of the money out of that account, leaving absolutely nothing in it. This all comes right after I paid the $3,000 rental payment for the month. So he has enough to live on for over a year and I am left with nothing but all of the bills in my name and my income. He says he will move out (and leave me to fulfill the one-year lease at $3,000 a month) but I have a feeling he is in no hurry to do so. Meanwhile, he leaves nasty notes and messages throughout the house, has broken the home phone and my cellphone, and drawn crude pictures on my property.

We owe the State and the IRS alot of money that gets paid in monthly installments and he says I will be left with those payments as well. It is my name on the utilities and the car insurance, etc.

What rights do I have? He has all of the savings that would allow him to move out and also to file for the divorce but wants me to pay for everything because I earn more than he does. I would rather keep the house and at least stay for the balance of the lease since I know he cannot afford the rent on his income alone. He makes only about 1/5th of what I make...I want him to pay his fair share while he is living there but he has refused. I can't make him leave, can I? I need help - he can afford a good attorney with our savings - I can't.

**lawgirl123** · 07-03-2009, 02:08 PM

I'm sorry I don't know the answer as to whether you can kick him out of the house. But I can give you an idea of how your money is going to be split up.

It's extremely straightforward in CA how money ("property") is split up at divorce. Basically, any property accumulated during the marriage (including salary, wages, workers comp, house, joint bank account, etc.) is split 50/50, and is called community property. What ISN'T considered community property: anything you inherit, are gifted, property you acquired before marriage, or separately outside of the marriage.

As to whether your husband's workers comp will be considered community property (meaning therefore you get half), or separate property (meaning he gets to keep it to himself), that depends on whether the pay was: 1) intended to replace his marital earnings, in which case it'd be community property, or 2) intended to replace separate postdivorce earnings. Based on what you said about the injury occuring after the marriage and affecting his wages, and the two of you becoming dependent on your salary, I'm guessing that you would fit in the first category, and therefore it would be considered "community property" (meaning you get half).

The fact that your husband withdrew all the money from your joint bank account will be taken into consideration by the divorce court. By law, if one spouse deliberately misappropriates the other spouse's interest in community property, the court may make an award or offset against the wrongdoer's 1/2 share of the remaining property. Basically, if these funds (which both of you are entitled to) "disappear" between separation & divorce, your husband (the spouse who exercised control over those funds) will be required to account for them. If he fails to do so, unequal division is appropriate - meaning you would receive full recovery of your 1/2 interest in the dissipated funds. If that's insufficient, you're entitled to a personal judgment against your husband (the misappropriating spouse) for the remainder.

As for paying back your creditors and whose pocket that comes out of, at divorce each spouse is personally liable for every debt he incurred whether or not the court assigned the debt for payment by the other spouse. Personal liability means that all property of the debtor is liable for the debt. The law distinguishes between debts allocable to the community (both of you as a married couple) & debts allocable to each spouse as separate obligation.

If your property is applied to satisfy a debt assigned to your husband, you have a RIGHT TO REIMBURSEMENT of the amount applied, WITH INTEREST, from your husband. You may RECOVER REASONABLE LEGAL FEES incurred in enforcing the right of reimbursement. So no, you are not going to get stuck with all the bills!

Hope this makes you feel better. Good luck!