questions & answers

Question: My husband was recently arrested for sexually abusing my daughters. He is currently in jail awaiting trial for 3 class 6 felony charges. Of course I want a divorce, but I want to make sure that I proceed in a way that will most benefit my five children. I want to protect them from their father (get sole custody), and I want to do what will help us most financially. So is it best to file divorce papers immediately or to wait until he is convicted? If he is convicted does all of his property revert to me if we are still married? I am thinking long term, I know that I won't be receiving any child support so if the property doesn't revert to me on his conviction, is it likely that courts will give me all the community property in lieu of child support? Thank you.

Answer:

Given your situation, you may want to consult with an attorney. To find legal help, you can look at our organizations page, or your can go to the site for Find a Lawyer on the State Bar website. I can give you some information about the procedure and the pros and cons for waiting versus filing right now.

Your confusion is understandable, but much of what you ask requires me to predict what a judge will do. I can't do that. I also cannot recommend what course of action you should take about the timing of your divorce petition, since you alone must make that choice.

If you wait and file for divorce after a conviction, you will be able to attach a copy of the criminal judgment to your petition for marital dissolution (divorce). Under the victim's bill of rights, you should have complete access to the county attorney's resources, including a copy of any police reports, plea agreements and sentencing orders.

However, there are several things to consider when waiting for resolution of the criminal case before seeking a divorce. If you wait, you are assuming that the deputy county attorney will win the sex abuse case, and that is a dangerous assumption. Sex crimes are notoriously complicated and difficult matters to present to a jury. There is a possibility that the county attorney may dismiss the criminal case at a future date, or make a plea agreement due to various considerations. In short, a million different things could happen between now and the conclusion of the criminal case.

Until a divorce petition is filed, all of the property and debt that you continue to accumulate (including your salary) will remain presumptively marital in nature (i.e. shared). By delaying, there may be a question about what property was accumulated at what time and who it belongs to. A criminal case could take months - even years - depending on its complexity, the diligence of the prosecutor and defense attorney, and the criminal judge's trial calendar. Also, some family law cases last for 2-3 years. It's impossible to predict how long it would take your case to conclude.

Again, given your situation, you may want to consult with an attorney. To find legal help, you can look at our organizations page, or your can go to the site for Find a Lawyer on the State Bar website.