Seeking Legal Advise on Divorce.

In My Humble Opinion
1

No, it’s not me and the wife, but almost as close to home. My mother in law is in the process of going through a divorce. This is not a very amicable separation to say the least, and as we get deeper into this, there are some questions that have arisen, that I thought the Dopers might be able to assist with.

A little background on the whole situation first.
Mother-in-law was the typical stay at home mom for most of her life. Moved to 3 states with her husband, took care of the kids and house while he worked, supported him as best she could when she could. About 15 years ago, my understanding is that things got so bad, he moved out. Didn’t file for separation, but moved out of the house, and to another state. He continued to pay the mortgage on the house, but my mother-in-law (let’s call her Tena) got a job at Burger King to pay the rest of the household bills. Electric, water, gas, cable, food…all that stuff. As I understand it, he did send money home occasionally to help buy clothes and such for the girls (my wife and her sister) but for the most part, Tena was on her own. During this time, she was diagnosed with Breast Cancer, and pretty much went through it on her own, with only my wife to help and assist her.

My sister-in-law had moved out of state to attend college, and ended up getting married, and staying in New Jersey, about a 9 hour drive from Ohio. When my wife and I got engaged, I expressed my desire to move back here to Virginia, to be close to my mother, and ailing grandmother. Leaving Tena basically alone in Ohio. After about a year of talking to her about the situation, we convinced her to move down here to Virginia close to us, as that would put her around us, and closer to her other daughter (NJ is only about 6 hours from here). Tena asked her husband (Adam) about the house, or anything in it, and he told her he didn’t care, that she could sell it, keep the money to buy a new house, and dispose of anything that was his however she wanted. We went up, helped clean, paint, and repair the house to get it ready for sale, and when sold, helped her pack, and get ready for the movers.By the time the second mortgage was taken care of, and the realtor fee, she got about $70,000 from the sale of the house. That paid for most of a condo that she bought down here in Virginia (around the corner from us).

Flash forward to about a year ago…Tena received a letter from Adam containing paperwork for a divorce. Literally out of the blue. Even though they had been separated for so long, in the back of her mind, she didn’t ever think they’d get divorced. Basically he was suggesting that they just sign the papers, and no further moneys, or alimony would change hands. Tena works hard, and has a job that she works at 38 hours a week…and of course, you can see the problem with that. No health coverage. And while she’s a hard worker, she doesn’t really have any skills to land a job that would provide good benefits. Mid 50’s is late in life to try and enter the job market with an entry level position. After talking it over with us, she retained a lawyer, and asked for Alimony of $800 a month, plus half of his Social Security benefits, as the amount she’s been able to earn, and put into SS is far far less than what he has. I think the $800 is a bit high, but I do think that he should pay her enough to get health care coverage, and the SS benefits. He wrote back refusing those terms, and offering that either they just let it go as is, and sign the papers, or sell both their homes, and split the proceeds from that 50/50. Of course, she’s terrified of having to sell the condo, and what might happen.

So, the question to the doper legal eagles. If she files for divorce here in Virginia, how does her situation look? I know you can’t say exactly what will happen, but a general opinion would be nice. Would a judge tell them to both sell, and split the money? Would she then be able to ask for Alimony? What about the SS benefits? If she did have to sell her Condo, is there any way that my wife and I could buy it?..but buy it in such a way as to not be…obvious…that we’re buying it?

Perhaps I’m a bit more sensitive about this, because my dad left my mom when I was a baby, and never paid any support. But I strongly feel that he should pay some alimony to her. She gave up any career she might have had to follow him around, because of his job. I don’t think it’s too much to ask that he be required to support her to an extent now. I’m not saying she should be staying at home all day watching TV, but she should be able to afford health care, and have enough money to make her ends meet.

And while I’m sure this question will have a lot of Opinions, let’s try and keep it civil. I’ll respond as best I can to any questions, and get more information if required.

2

Not sure about VA but she should also be entitled to some of, if not half of his retirement benefits as well. Such as pension plans and 401k. It doesn’t matter that she didn’t work outside the house during their marriage, she worked just as hard as he did taking care of the house and raising the girls. It really depends on the state. Texas is a community properity, no allimony state. Any properity acquired after the marriage is 50/50 split. If you owned it prior to marriage it’s yours to keep.

Her lawyer should know what she is entitled to.

3

Please, please, please have her talk to a GOOD lawyer, not just some schmo out of the Yellow Pages. Get recommendations from local people, and interview more than one if necessary. I have no clue about the law in any of the applicable states, but I’ve seen far too many people (my own mother included, although she at least has a college degree and a more substantial professional history) get screwed in divorces.

I’ve also been subpoenaed by my father in post-divorce proceedings. Believe me, it was no fun, and a lot of the post-divorce B.S. could have been avoided if my mom had had a decent lawyer at the time of the divorce. She tried to spend as little on legal advice as she could back then, but a few more bucks for a better lawyer upfront could have saved her untold grief and a ton of money down the road to fix errors and omissions. There are times you get what you pay for.

4

I’m not sure what the law is in Virginia, but many states do not have alimony per se any more. Instead, the spouse in the disadvantaged position may receive spousal support for a limited time, usually to allow them to return to school or receive training to enable them to find a reasonable job. As your MIL is older, returning to school may not seem like a reasonable option, but it may be what she is stuck with.

Most states also do an equitable division of joint property (unless it is a community property state–then, any assest obtained during the marriage is property of both parties and is split equally. A state that is not community property may still enforce a community property division if the marriage was primarily spent in a community property state.) While it is true that the court could order both parties to sell their respective homes and divide the profit, the court will also look at reasons why this should not be done (in a non-community property state). An equitable division of assets will look at both the differences in earning capacity between the spouses as well as investments, savings and other assets, but also at the fact that they have maintained separate households for many years. Spouses are entitles to portions of retirement/pension accounts, though perhaps not half.

When your MIL talks to an attorney, ask before the appointment if the appointment is free and if not, what is the fee and what will that get her (often a free consultation will be for a short appointment only–15-30 minutes–and may not be enough time to fully explain the situation). If there is a fee, she should still ask if her appointment time will be limited. If she decides to retain the lawyer, she needs to get the fee arrangement in writing. Typically, the attorney will ask for a retainer, which is put into a special account, and your MIL should get an account of how that money is being spent each month. When or if the money runs out, the attorney will either ask for additional funds, or bill her. Sometimes the attorney will charge a flat fee, but again, get it in writing and spell out what, if anything, if not included in that fee. Any lawyer that balks at putting fees in writing (in fact, any that don’t require it) are probably shady and should be avoided. Another good question to ask is how often you can expect to get updates from the attorney. Again, a good attorney will either have an established method for keeping clients updated, or will tell you to call if you have questions.

5

At her age, they’ll probably give her alimony for a fairly long time (not that I’m a lawyer or anything). $800/mo. is not asking much. My friend pays $450/mo. for health insurance, so that leaves little for maintenance.

6

This is so weird, Atrael, and I have no advice for you, but I actually kind of know you. At least, I know all the people in the OP: I went to college with someone whom I am 98% sure is your sister-in-law. All the details are too coincidental. Your wife’s maiden initials were MHE, yes, and your SIL was HME? And she (H) has a newborn son after the death of her daughter?

Anyway, your MIL is the sweetest person I know and I really hope that A does what the right thing. She deserves it.

7

Holy sh*t jeevewoman, who are you? And how the hell could you have figured it out from just the small amount of information I listed? (Yes, you’re correct by the way) Anyway, emails in my profile, drop me a line, letting me know who the hell you are. M will get a kick out of learning that she knows a doper.
Thanks for the words of advice or support everyone. We looked up a little bit of Virginia law, and I really don’t think she has anything to worry about. The differances in their wages is such that even if a judge did the “sell everything, and divy up the proceeds”, she’s probably still get the lions share.

8

Good lord Atrael - I don’t need these kinds of heart attacks so early in the morning!

:eek:

9

Email sent, Atrael. I’ve never actually met you, so you don’t know me. But I do know M pretty well! :wink:

10

1: Get a good lawyer that will be aggessive, but will also not jerk her chain with pie in the sky promises. Older divorcing women are sometimes encouraged to pursue low probability of success legal strategies, that can be billed quite nicely by the atty, but have little real world prospects for success. Divorce in the US is lot more boilerplate and codified than it used to be, and unless there are extraordinary circumstances courts generally follow state formulas and guidelines quite closely re property separation etc.

2: You need to get the alimony issue straighted out. As others have indicated alimony is a lot more limited than it used to be, and to the extent it is granted is generally considered by the states and the court to be rehabilitative for the receiving spouse to get back on her feet, not as a lifelong stipend. Given the extraordinary amount of time that the couple has been voluntarily separated and living separate economic lives for 15 years, meaningful alimony (if any) not be a sure bet.

Assuming there is no other wealth in the equation, the only two substantive assetts mentioned in your OP are the respective houses and the pension. Given the unusual aspect of the extremely long separation, she really needs an atty to advise her how the court might look on that scenario. Here is link for the basics of divorce laws in VA..

11

As a slight followup, I would encourage you not to do anything legally questionable if it comes down to the disposition of both properties. As a real estate agent I can assure you that residential real estate transactions are quite transparent after the fact, and if their atty gets wind that some hanky panky is going on, assuming the disposition requirement is for an “arms length” transaction, you, your wife, and your MIL could be in all sorts of trouble.

If you want to buy it for her as part of a martial property disposition, you need to let the other side know you intend to do this, again assuming the disposition requirement is for an “arms length” transaction. Agreeing to pay appraised price or something similar might get them to agree to let you do this.

See an attorney.