Q: In a recent column, someone was complaining that their spouse wanted half of the money one party was receiving as loans from family to fund litigation. It wasn’t clear to me why this is wrong. My lawyer says that when we are ready to move forward, she will ask the judge for an allowance of legal fees to level the playing field so I can also have a lawyer. My husband gets a lot of gifts from his family that we use to pay our expenses. Now I am nervous that he will get a ton of money from them to fight me for our kids and I might not be able to afford an attorney. My husband has a drinking problem and regularly loses jobs, so his family steps in and gives us money. He has been out of work for a while and says he is now the primary parent and deserves full custody. His family doesn’t know about his problem and I have spent years helping him save face with his parents. I am worried he will lie to them and make me the bad guy — especially when I look to put conditions on his parenting to keep the kids safe. Should I be worried?
A: There is a difference between receiving loans and receiving gifts that have historically been given and are used to supplement his income. Loans imply repayment at some point. No judge can order a family member to loan other family members money to pay fees. When someone does borrow from family to pay legal fees, the debt is solely that of the borrowing party rather than a shared marital debt.
When gifts are made, a judge can order any funds received to be shared “if and when” received. In that way, you don’t have third parties controlling the litigation for the wrong reasons. This is even more true in situations where gifts were historically made to supplement income and lifestyle because one party is habitually unemployed or underemployed. The short answer is your lawyer can ask for a division of gifts to level the playing field because he has access to money that was historically received during the marriage that you cannot access.
That said, here is a different idea altogether. If you have a reasonable relationship with his family, go talk with them. Explain what you have been covering up for him and your concerns for the children’s safety in his care. Ask them for help Ask them to intervene with him and try to get him help. Ask them if they are willing to supervise his parenting time, which will ensure your children’s safety when in his care. Many parents side with their adult children in a divorce because they fear losing contact with their grandchildren. Also invite them to the kid’s activities. If you keep them connected and ask them to help protect the children, you could be pleasantly surprised at how supportive they are.
