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Please can you answer this question regarding a marriage separation?

Los Angeles, CA |

My friend is trying to get out of her marriage. She has been faced with a difficult dilemma and I would be grateful for your assistance with this matter. This is not a particularly happy marriage and she has had to suffer greatly.

Her husband wants to borrow USD 11,140 from her in order to pay off his 401K loan. He can then take out another USD 30,000 loan.
He has then promised to pay her back this USD 11,140 plus other bits of alimony. She is concerned that he may not be good as his word and backtrack on the deal. She then could take him to court. Her concern is that he has the necessary finances to battle her on this and she would find it difficult to fight needing between 15,000 to 20,000 to do it. This falls under California law.

What do you advise ?

Attorney Answers 3

Posted

I advise that she consult with her family law attorney and understand why this does not sound like a good idea. Also, in your posting you have a conflicting view that she is concerned that "he has the necessary finances to battle her on this." If he has the money to battle her on this, then why would she want to give him more money? Also, if he has money, why does he need to borrow any money from her? This does not add up. It sounds to me at though she is throwing away her money with that loan under those conditions. It does not sound like she really wants to get a divorce, or she'd have a lawyer advising her.

She would be best served with her own lawyer helping her with these strategic decisions. There's not enough information on Avvo to give sound advice and also this is a public forum. I can imagine the husband or his lawyer seeing this posting and knowing exactly who posted it.

NOTICE: The above statements are provided for general information purposes only and are not intended as legal advice or advice of any sort for a specific case or legal matter. If you do not have a signed attorney-client fee agreement with the Consumer Law Office of Robert Stempler, APC ("the Firm"), then until such written fee agreement is provided and signed by both a prospective client and attorney for a particular case, neither Mr. Stempler nor the Firm will represent you nor will they be your attorney in any matter and you remain responsible for retaining your own attorney and for compliance with any and all deadlines and for any statutes of limitations that may pertain to potential claims. Comments made on a public forum, such as Avvo.com, to not have any confidentiality because others may read them. If you desire a private consultation with Mr. Stempler that is confidential, please go to www.StopCollectionLawsuits.com and submit a free eCase Review. The result portrayed for a client was dependent on the facts of that case. Results will differ if based on different facts. The Firm and Mr. Stempler are a debt relief agency. The Firm and Mr. Stempler help people file for bankruptcy relief under the Bankruptcy Code.

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3 comments

Asker

Posted

Thank you. Out of interest could a guarantee be written into the contract where he would be liable for court costs if he defaults.

Robert Harlan Stempler

Robert Harlan Stempler

Posted

You would not need that, as the winner in a lawsuit is almost always awarded their court costs. I'd be worried about collecting nothing. (Please see DISCLAIMER above).

Asker

Posted

My friend has rephrased the question,so hopefully this will make things clearer. My ex spouse to be wants to borrow money gifted to me that I need to start a new life without his help as of yet! He asked I loan him $11,140.00 to pay off the 401k loan he took out without my consent sometime during the 7 year marriage. He said he could then take out a $30,000 new 401k loan and pay me what I loaned him plus 10,000 for the first installment of a agreement we made. One more installment is to be paid in 10,000 over 4 years. I wrote up a contract with all that was needed in details and have it for us to sign, initial and date and a third witness. I'm still concerned that he would not pay me back taking the little I have to survive and I have Lupus and must do all I can to care for myself. I did talk to a attorney yet he made it clear how high the costs can get. My spouse makes excellent money and would owe me a great deal in Alimony, Stocks, bonds and more yet to get this over with in my health I'm willing to take less yet as I stated I'm still worried he can walk away from the contract. I know I would get it back in court but with all that cash plus his pay he would be in a much better position to fight me in court. I don't know whether I should just walk away with the little I have from family or sign this and trust he will keep the agreement because of how fair I am being.

Posted

Before doing anything, your friend needs to gather some information. She should speak with an attorney to better understanding the potential risks/consequences of such a "loan", and what options she may have to make certain the funds are repaid. There are also potential risks of taking out another $30,000 while they are still married, without any binding orders/agreements in place. She also needs to gather information about California laws governing spousal support. Absent this, she may cause herself serious legal harm later on.

I strongly recommend that she contact an attorney directly, give him/her the information and documents necessary to be able to properly and accurately advise her. The information provided here is not sufficient for any kind of reliable response. It's kind of like telling a doctor "my chest feels tight" and requesting a diagnosis from that; too many unknowns.

I hope this helps.

Since the information provided in your question is very limited and I have not had an opportunity to review all relevant facts, information, and documents, you should not rely on any specific responses to your questions. The information offered here is general in nature given that the slightest bit of additional information could change a specific answer (i.e. we separated 1 year ago and he has been paying all my expenses. Q: Do I owe him that money back? A: Yes. But what if he used money from a community asset, like a retirement account, to pay it back. A: maybe some or maybe none). In short, consult an attorney to review all relevant information so s/he can properly and accurately advise you. This free service IS NOT a substitute for legal advice and should not be considered legal advice at all.

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1 comment

Asker

Posted

My friend has rephrased the question,as below. My ex spouse to be wants to borrow money gifted to me that I need to start a new life without his help as of yet! He asked I loan him $11,140.00 to pay off the 401k loan he took out without my consent sometime during the 7 year marriage. He said he could then take out a $30,000 new 401k loan and pay me what I loaned him plus 10,000 for the first installment of a agreement we made. One more installment is to be paid in 10,000 over 4 years. I wrote up a contract with all that was needed in details and have it for us to sign, initial and date and a third witness. I'm still concerned that he would not pay me back taking the little I have to survive and I have Lupus and must do all I can to care for myself. I did talk to a attorney yet he made it clear how high the costs can get. My spouse makes excellent money and would owe me a great deal in Alimony, Stocks, bonds and more yet to get this over with in my health I'm willing to take less yet as I stated I'm still worried he can walk away from the contract. I know I would get it back in court but with all that cash plus his pay he would be in a much better position to fight me in court. I don't know whether I should just walk away with the little I have from family or sign this and trust he will keep the agreement because of how fair I am being.

Posted

I advice that she seek legal help now. I also advise that she not make any transfer of funds or investments of any kind to him without first seeking legal help.

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