My husband of nine years committed adultery with numerous women over the last 2 years. I finally found hard core proof and am planning a divorce. My question is this.... he was wrongfully accused of a felony and is suing the person who claimed this. Our plans were to put the money in an education fund for the kids if he won. If I divorce him before it's settled will I have any right to the money to ensure it goes to the kids??
You could have a claim to the some of the money from the lawsuit.
Courts can treat money from a lawsuit as marital property, which means both spouses have a claim to it. There are several factors a Court uses to determine whether an award or settlement is marital property, including what the parties from the lawsuit call the money. For example, money for pain and suffering is not marital property but money for lost wages is marital property.
A family law attorney practicing in your area can help you determine your rights regarding the funds and how best to protect them for your kids' future. The attorney can also help guide you through the entire divorce process.
The previous answer is correct: there is no set rule, each case is different and its up to the Judge to make a determination but he is required to considered a number of factors. If you settle you divorce case, then obviously the terms of your settlement will control so it may be something you can negotiate. You did not say, but are you named as a plaintiff in the lawsuit? If not, that could work against you in making a claim for a part of that recovery in your divorce case. You should also know that fault in the divorce case ( your husband's adultery) is NOT a factor for the Judge to consider when it comes to the issue of property division. That's hard for many lay people to grasp, but it will not come into play when dividing your assets. ( It does matter when the issue is alimony). I also agree your divorce lawyer will guide you to a decision, but it should be keep in mind that the recovery for that wrongful accusation is uncertain- he might not win the case and even if he does, the judgment might be hard to collect. I don't know what other assets you have, but child support and alimony might be where you ought to focus.
It depends on the type of lawsuit pending. Many cases, even ones filed by your spouse, are considered marital. For example, a claim for lost wages during the marriage may be considered marital, entitling you to seek part of it. Of course, if you and your spouse are both joint petitioners on the lawsuit, you would be entitled to part of the judgment. If you or your spouse have a pending lawsuit, it is critical that you address this during your divorce.
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