Following a divorce or child custody case in Texas, you may be struggling with the concept that you’re no longer able to see your child every day or whenever you desire. While this is certainly an adjustment, an added complication to this situation can occur when the other parent is not following the possession order. It is extremely frustrating when a parent expects to see his or her child, only to be disappointed at the time of the exchange. While co-parenting and reaching amicable agreements are encouraged, this may not be an option for some parent. So, what are your options if the possession order isn’t being followed?

Modification

If your possession schedule has become unworkable or is consistently disregarded by the other parent, modifying the possession order could be an appropriate option for you. If a parent is consistently failing to exercise possession at a specified time, or consistently keeps the child beyond their possession, modifying the schedule may offer long term relief for you. While a modification will not hold a parent responsible for disobeying the possession order, it will give you an opportunity to create a new possession schedule that works better for the child and the parents. A modification is also appropriate if the parents previously agreed to follow a different schedule but are no longer able to cooperate and agree. If this happens, asking the court to modify the possession order so it reflects what the parties consistently followed previously may be in the child’s best interest.

Enforcement

If the parent disregards the court’s possession order, or interferes with your ability to exercise your court ordered possession, seeking an enforcement is also an option. An enforcement asks the court to hold one party in contempt for disobeying the court’s order. To have a successful enforcement, you must have a clear and concise order and be able to articulate how the other party failed to comply with the order (i.e.: didn’t appear at the scheduled exchange or picked up the child from school so you could not exercise your possession.) If the court finds the other parent is in contempt, the court has multiple forms of relief to offer the other parent. The court can order additional possession time, order the payment of court costs and attorney’s fees, and even order confinement for a parent that continuously fails to comply. While seeking that the parent of your child be held in contempt seems very harsh, it may be the appropriate remedy if other options and attempts to co-parent have failed.

Writ of Habeas Corpus and Writ of Attachment

If the other parent is keeping your child from you for a continuous period of time beyond their ordered possession, seeking a writ of habeas corpus is the best way to have the child returned to you. If you’re seeking a writ of habeas, you must do so during your ordered possession time. While these hearings are typically expedited, they are not immediate. If a parent is keeping the child in excess of the court ordered possession, but returns the child within a relatively short period of time, an enforcement is the better option for you. The writ of habeas orders the parent to bring the child to court so that the court can determine who has the right of possession to the child. If you fear your child is in danger, you and your attorney may also want to seek a writ of attachment. A writ of attachment orders the parent to surrender the child to law enforcement so that the child may be returned you, instead of having the parent appear at a hearing with the child at a date and time in the future.

If your possession order is not being followed, you have rights and options available for relief. To determine what relief is most appropriate for your situation, you should consult with an attorney. The attorneys at The Draper Law Firm, P.C. are here to help you navigate through this difficult time and to fight for your parental rights.

-Blog post by Shmyla Alam

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Texas is a community property state, meaning all property acquired during the marriage by either spouse is presumed to be part of the community and, therefore, subject to division by the court in a divorce.  But what about debts, such as student loans?  In Texas alone, almost 3.4 million people have unpaid student loans that total more than $111 billion.  Understandably, a lot of people fear becoming responsible for their ex-spouse’s student loans post-divorce.

If you or your spouse obtained a student loan before the marriage, the student loan is considered a debt of that person’s separate estate, and the person whose name is on the loan will be 100% responsible.

If you or your spouse obtained a student loan during the marriage and used the money for education-related costs, the person whose name is on the loan will be 100% responsible.

However, if you or your spouse obtained a student loan during the marriage, and evidence shows the loans paid for living expenses that benefited both parties, the debt could be considered part of the community estate.  In this case, it will become one of many factors that are taken into account in dividing the entire community estate.

What about reimbursements?  Many people want reimbursement for the payments made on one spouse’s student loans during the marriage.  Texas law clearly prohibits reimbursement claims for payment of student loans owed by one spouse.  Much like buying groceries or paying for gas, these payments cannot be reimbursed.

Refinance student loans are another issue that arises during a divorce.  If you or your spouse co-signed student debt, including during a refinance, the co-signer becomes responsible for that debt.  In a situation where both parties’ names are on the student loan, the loan will be considered part of the community estate.

If you are going through a divorce and you have student loans, you should also speak with a financial planner because your options for repaying student loans may change post-divorce.  It is also important to have an attorney knowledgeable about property and debt issues.  The attorneys at The Draper Law Firm are ready to help you be proactive in navigating these issues.

Blog post by Samantha Mori

 

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Judges carefully consider the evidence and arguments presented at a trial before making a final decision, but this doesn’t mean that a judge’s decision is always accurate. For this reason, you still have options you can pursue in order to urge the judge to make a different decision in your case. There are different types of relief available if you believe the Court has made an erroneous decision. Below, we discuss your options for relief, and when each type of relief is most appropriate in your case.

Motion for New Trial

If you’re generally dissatisfied with the Court’s decision, or for one reason or another, the opposing party obtained a default judgement against you, a motion for new trial is likely your best option for relief. A motion for new trial must be filed within 30 days from when the Judge has signed the order or judgment, and this time cannot be extended. Because time is of the essence, it is important to discuss this option with an attorney as soon as possible.

A motion for new trial asks the court to give you a second opportunity to present your evidence and legal arguments so that the outcome will be more equitable. This is done by filing a motion that points out the legal errors of the judge’s ruling. If the motion is granted, you will be given an opportunity to present testimony and evidence at a new trial before the judge makes a new ruling. However, there is no guarantee that a new trial will result in a different decision from the court.

A motion for new trial is also a useful tool in extending deadlines for appeal, so even if the likelihood of a judge granting the motion is low, there still might be an important reason for filing.

Motion to Reconsider

If you have qualms with a specific ruling the court has made, or you believe the judge should have made a different decision based on the evidence and arguments that were previously presented at trial, a motion to reconsider is the most appropriate form of relief. Like a motion for new trial, a motion to reconsider specifically states the errors of the judge’s decision and provides legal arguments and support for why the court’s decision is erroneous. This motion does not ask the court to give you a second or new trial, but rather, a motion to reconsider asks the court to reconsider its ruling based on the evidence and record that already exists from the trial. This relief is most appropriate when you believe the court’s decision should be different based on the evidence and arguments that were presented at the final hearing. You’re not seeking an opportunity to present new evidence. Instead, you will use the record from the trial to illustrate why the Court should have come to a different decision based on the applicable law.

Appeal

If neither a motion for new trial nor motion to reconsider are successful, the only way to overturn the trial court’s ruling is through an appeal.  Appeals are an extremely slow process and can take a year or more before a decision is made.  Depending on the circumstances, an appeal might be appropriate in your case, or you may be better off waiting and filing a modification down the road (if the disputed issues relate to custody or child support).

Blog post by Shmyla Alam

 

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The holiday season is a special time for getting together with loved ones to make lasting memories with your children.  This is especially important for divorced families.  If you find yourself recently divorced, in a challenging co-parenting relationship, or trying to blend families due to a new relationship, the holiday season may add a layer of stress for you.  Here are some tips to help you manage the holiday season so that you and your child can experience the wonder and joy that this time of year brings.

Tip One: Review your possession order.  You may have standard possession order for holidays, or you may have a customized order.  There are numerous ways to split time with the child during the holiday season with the other parent, and you want to be sure you understand exactly what your schedule entails.  Knowledge is power, and the more you know, the less surprises arise.  It can also help you talk to your child about who the child will be with at specific times during the holiday season.  For example, if you do not have your child this year on Christmas, you can let your child know that you will celebrate together on a different day.

Tip Two:  Talk about gifts with your co-parent.  By doing this you can avoid the child receiving multiples of a particular item.  You should discuss this with your co-parent and other members of your family too.  If the child is with the other parent on Christmas but Santa visits your home, too, it will be much less confusing to the child if Santa leaves different presents for the child at each house.  It will also save you from having to explain what happened to your child because we all know Santa knows and sees everything.

Tip Three:  Keep exchanges of the child stress free.  If you now that someone in your life is a trigger person for the other parent, then keep them out of the child exchange process.  For example, if you are in a new relationship and you know your new person and the other parent do not get along, your new person should not be present at the exchange.  If your new person must be there, having the new person stay in the car or in the house but out of sight is best.  If you and the other parent are having a difficult time, then you can designate a competent adult to handle the exchange for you (assuming your order provides for that).  If you decide to do this, let the other parent know who will be picking the child up instead.

Tip Four: Start a new tradition.  If this is your first year to navigate the holiday season while splitting time with the child with the other parent, this is particularly important and can be a lot of fun.  Children are wise, and they know things are not the same now that you are divorced.  Start making new memories.  Have a cookie decorating contest with your child, make homemade pizzas, get funny slippers to wear around the house, start an ornament collection, or write letters to your child  about things that happened during the year and put it in the child’s stocking.  If your child is old enough, let your child choose a tradition he or she would like to start.

Tip Five: Take care of yourself.  While it is important to help create new memories for your child, you also need to take care of yourself and plan things to do when you are not with your child.  You may find that you are anxious and sad when your child is not with you, especially on the holidays.  It is important to plan some fun things that you enjoy so that you do not focus on the fact they are not with you.  Remember, you still get to celebrate with your child, just in a new and different way.

Blog post by Brandi Crozier

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In divorces and cases involving the parent-child relationship, the court will establish a parenting plan that is in the best interest of the child. This parenting plan includes the rights and duties of a conservator and a possession schedule for the child. Courts may consider several factors when determining what is in the best interest of the child, but the Texas Family Code provides some guidance when it comes to possession schedules. Texas law presumes that the Standard Possession Order provided in the Texas Family Code is in the best interest of the child. But this presumption does not apply to children under 3 years of age. This means that when dealing with a child under 3 years old, there is no standard schedule or any guidance in the Texas Family Code. This doesn’t mean the court will not award the standard possession schedule, but it does mean the standard possession schedule is not always the court’s default possession order. When dealing with possession or custody schedules for a child under three, the court will look at many factors. These factors will include the age and development of the child, the length of time the parents have been separated, the relative involvement of each parent in the child’s life up to that point, and the distance between the parents’ residences. Based on these factors, the court will determine what type of schedule will help the child develop and maintain a healthy and trusting relationship with both parents.

Children under the age of three are still developing and have different needs than older children. Parents are always able to present agreed possession schedules to the court for approval, but it is important to keep a few things in mind when developing a visitation schedule for children under three. Having shorter but more frequent visits between the noncustodial parent and the child will help the child feel secure and develop trust with the noncustodial parent. Frequent and consistent visits will also help the child develop a healthy attachment to both parents. Depending on the age of the child at the beginning of the case, the visitation schedule may be divided in to three periods: birth to 18 months, 18 months to 3 years, and finally 3 years and older. The child will have different needs throughout these stages, so it is best to have a step up or change in the possession schedule at each stage that will support healthy development and emotional attachment with both parents. It is a good idea to include gradual steps towards either the standard possession order or a mutually agreed upon possession schedule once the child turns three. This will prevent the need for either parent to seek a modification of the possession schedule once the child is older than three. This is also beneficial since the frequent but shorter visits may become cumbersome for both the parents and the child as the child gets older.

While the best interest of the child is always the primary concern for family courts and judges, it is important to recognize that for young children, the standard possession schedule is not always best. If your divorce or child custody case involves a child under three, it is so important to develop a phased or stair step possession schedule that will continue to serve your child’s needs as he or she continues to grow and develop. Contact The Draper Law Firm to help you create and establish a possession schedule that is in the best interest of your child.

Blog post by Shmyla Alam

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In Texas, most courts will order a geographic restriction as part of any child custody proceeding.  One parent is often awarded the exclusive right to designate the child’s primary residence.  A geographic restriction limits the child’s primary residence to a designated area. In cases where neither parent is given the right to designate the primary residence, the geographic restriction limits where both parents can live with the child.

Why do we have Geographic Restrictions?

The public policy of the State of Texas is to assure that children have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child.  Courts should encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.

A geographic restriction prevents custodial parents from moving the child outside a particular area without agreement from the noncustodial parent or a court order.  In some cases, neither parent is awarded the right to designate the primary residence, and the parties need guidance on where the child will live.  A geographic restriction will provide parents with that guidance.

How big is the Geographically Restricted Area?

Each court handles geographic restrictions slightly differently, and the size of the geographic restriction varies.  In Collin County, judges will often order restrictions that read, “Collin County and counties contiguous to Collin County.”  A restriction worded that way would allow the custodial parent to move the child’s primary residence anywhere within Collin County or a county contiguous to Collin County, but not outside of that area.  Sometimes judges will restrict the residence to only the county.

If you go to court, you may not have as much flexibility in determining your specific geographic restriction.  We encourage parties to work together to negotiate geographic restrictions that will fit their unique needs.  You should work with your attorney to find a geographic restriction that works for you.  Do not feel bound by broad county restrictions.  If you are negotiating a settlement, you can tailor a geographic restriction based on a specific intersection, school districts, or other landmarks. You can use city boundaries, a radius based on a specific point, or boundaries drawn on a map.

Keep in mind that your possession schedule will also impact your geographic restriction.  A 50/50 possession schedule will require a much narrower geographic restriction because it is in the child’s best interest to limit long drive times.  Even with an expanded standard possession order, the further apart the parents live, the harder it is on everyone for exchanges.  You should consider how long it will take for the child to get to school or daycare, extracurricular activities, and how far apart the parents’ residences will be.

Is my Geographic Restriction permanent? 

Yes and No.  The geographic restriction is in effect until one the following: 1) written agreement between the parents or 2) court order.  If a parent wishes to move the child outside the geographically restricted area, he or she will have to get permission from the other parent in writing.

If the parties cannot agree, the parent wishing to move the child will have to file to modify the order that includes the geographic restriction.  The likelihood of winning a modification will depend on the facts of your situation.  Several factors affect whether a court will order a modification of the restriction, including:

  • whether the move is in the best of the child;
  • the involvement of the parent opposing the move;
  • reason for the move;
  • comparison of education, health, and extracurricular opportunities;
  • special needs or talents of the child;
  • effect on extended family relationships;
  • effect on possession and access with the noncustodial parent; and
  • whether the noncustodial parent has the ability to relocate.

Can I move without a court order or agreement?

No.  If you move the child without agreement from the other parent or a court order allowing you to do so, you may violate your orders.  Your violation could serve as grounds for the other parent to modify custody.  You could face contempt of court, resulting in court-ordered punishments of fines or jail time.  Additionally, the other parent could file a petition to return the child.

Can I move if the other parent moves?

Maybe, but it depends on how your court order is worded.  Many geographic restrictions are worded such that the restriction only applies if the non-custodial parent resides within that zone, but that is not always the case.  If the other parent moves out of the permitted zone and your order allows for it, you can move outside of the zone.  If the other parent has not moved too far, be prepared for that parent to file to modify in an effort to keep you close.

If you are considering moving outside of the area designated in your order, be sure to consult an attorney to find out your options before committing to the move.  The last thing you want to do is have money invested in a move only to find out the court will not allow your child to move there.

Blog post by Samantha Mori

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Many families find themselves faced with the challenges of separation and divorce. Divorce can be a very stressful time in someone’s life. It is often said to be one of the most difficult transitions a person may face. One way to lessen the stress of the divorce process is for you and your spouse to divorce amicably. Here are five tips to assist anyone who may be interested in proceeding through the divorce process in an amicable manner:

  1. Find an attorney that understands your goal of an amicable divorce. Selecting your counsel is one of the most important decisions you will make during the divorce process. If you would like to minimize the contention during your case, you must ensure you hire an attorney who understands your goals and is capable of keeping your desire for an amicable resolution at the forefront of the process.
  1. Utilize a waiver of service. A waiver of service is a document that can be signed by your spouse after receiving a copy of the Original Petition for Divorce. If the waiver of service is properly executed, you will not have to have your spouse personally served with the petition. No one wants to be personally served. Many individuals going through divorce are served with papers at their place of work or home. This can be embarrassing and will likely make them angry. If your goal is an amicable divorce, it is usually preferable to begin by providing your spouse with a waiver of service to sign. If they refuse to sign the waiver of service, your attorney can then have your spouse personally served.
  1. Go to mediation. Many people are adamant they do not want their case to go to mediation. The general negative feeling towards mediation is often unwarranted. Most courts now require parties to attend mediation prior to the case proceeding to trial. This is because many cases can be resolved by utilizing an impartial third party to help the parties reach a resolution. Settling in mediation will save both sides money and lessen the stress that accompanies trial. In most cases, mediation leads to a better resolution for both sides. This is because mediation allows the parties and attorneys to be creative when creating a solution. When attending mediation be sure you go into the process with an open mind and a positive attitude. If you decide the process will fail before you even begin, the process is more likely to fail. Try to keep the focus on your goals and reaching a resolution both you and your spouse can live with. Remember, no settlement agreement is ever perfect for either side, but it is usually better than what the outcome would be at trial.  Even though it may be tempting, it is not a good idea to go to mediation without an attorney.  The mediator’s job is to get a deal done, and she cannot give you legal advice.
  1. Consider seeing a therapist. The end of a marriage is a very emotional transition for everyone involved. It affects the parties and the children. It is important to be aware of your emotional state and to recognize when you may need the assistance of a therapist or counselor. Many individuals need to be able to speak to someone such as a counselor or therapist to help them through this transition. Dealing with your emotions in a healthy way will assist you in keeping the divorce process amicable and preventing resentment. Divorces surrounded by resentment and anger tend to take longer to resolve and are ultimately more costly for both parties.
  1. Focus on the future. Remember that this is a time of transition. You are transitioning out of your marriage and into the next phase of your life. Focusing on the future is even more important to those who have children. If children are involved, you will continue to have a relationship with your spouse even after the divorce is finalized. There is no better time than the present to begin practicing communicating with the other parent. Even if you and your spouse were not ultimately successful long-term partners, you can still be successful co-parents. Parents who divorce amicably are typically better equipped down the road to resolve parenting disputes without the court intervening. Rather than getting hung up on the minutia, focus on your overall goals. If you hire an attorney who understands your goals, your attorney will be able to assist you with staying focused on what is most important.

Take the time to discuss these points when consulting with an attorney. At The Draper Law Firm, we understand this is a difficult time for you and your family and we are ready to help guide you through the process.

Blog post by Sarah Marrone

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Depending on the circumstances of your divorce or family law case, you may hear the Latin terms “amicus” and “ad litem” referenced by the attorneys or the judge in your case. We’re here to help clarify the purpose of an amicus attorney and an ad litem and explain when it would be beneficial to have either one appointed to your case.

The word “amicus” means “friend of the court.” When an amicus attorney is appointed in your case, it is important to know that the amicus does not represent any of the parties or children involved in the case. Rather, the purpose of an amicus is to gather information and help the court determine what is in the best interest of the child. The amicus will not only interview the parties and the children involved but will likely gather information from any other individuals that have valuable or relevant information. This can include teachers, counselors, doctors or other family members that are not parties to the case. This process allows the amicus to gather a significant amount of information, which can include evidence that may not be admissible in a hearing. Requesting that an amicus be appointed in your case is beneficial when the case is very contentious or involves a question of whether a party may be causing significant impairment or harm to a child.

“Ad litem” means “to represent in litigation.”  There are two types of ad litems we see in family law cases: an attorney ad litem and a guardian ad litem.  Unlike an amicus attorney, an attorney ad litem is appointed to represent the interests of a party.  In Texas, a Court may appoint an attorney ad litem when a party is not capable of representing himself or when a party has been served by publication.  An attorney ad litem is sometimes appointed to represent the child and advocate for what the child wants.  In cases involving CPS, the Court will always appoint an attorney ad litem in order to ensure that the child’s interests are protected.  A guardian ad litem may or may not be an attorney and is appointed to represent the best interests of a child.  Occasionally, a court will appoint an attorney in the dual role if attorney ad litem and guardian ad litem for a child.  In the event there is a conflict between what the child wants and what is in the child’s best interest, both need to be appointed.  CASA often serves as the guardian ad litem for the child in CPS cases in certain counties.

If your custody matter is complex, an amicus attorney or an ad litem may be an important tool to protect the child’s interests. Contact the attorneys at The Draper Law Firm, P.C. We’re ready to help.

Blog post by Shmyla Alam

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Digital assets are a huge part of our everyday lives.  The pictures on your iPhone, your Netflix account, documents saved in Dropbox, your Kindle library, and your Instagram page are all examples of digital assets.

While it may seem that digital assets are inconsequential when it comes to a divorce, that may not always be the case.  Technology has become such a significant part of our daily lives that digital assets may have significant monetary value beyond just the sentimental value.

A digital asset is intangible content that is stored in various types of digital formats.  Examples of common digital assets include: e-mail addresses, social media accounts, web sites and domain names, digital media (photos, videos, e-books, movies, and videos), blogs, reward points, data storage accounts (Dropbox, OneDrive), digital storefronts, and virtual currency (such as Bitcoin).

If these digital assets were acquired during the marriage, they will be considered part of the community estate and will be subject to a just and right division by the court.  When going through a divorce, each party should take an inventory of all digital assets that are considered community property.  If a digital asset was acquired prior to marriage, was a gift, or was inherited, it will be considered separate property and not subject to division in the divorce.

Once the digital assets have been identified as part of the community estate, they will be valued.  Valuing these assets is highly case dependent and will often require negotiation between the parties.  For example, a party’s personal social media page may have no monetary value.  However, if a couple has a social media page or website that generates revenue (such as a blog or Instagram account), the parties will want to give it a monetary value and determine who will be awarded the account.  There will certainly be some digital assets that have no value and you should focus on those digital assets that are most important.

When the parties divide the digital assets, the final decree should include language that allows the party who has been awarded the account the ability to change the password.  Additionally, the decree should include language that the party who is awarded the account is responsible for any fees associated with the account.  For example, if one party is awarded a domain name, that party will be required to pay the fees associated with the domain moving forward.

Some digital assets can be “shared,” which a great way to avoid conflict during divorce.  In many cases, digital assets can be copied and re-created so that both parties can have family photos or videos.  In some instances, digital libraries can be copied, but you cannot violate licensing agreements.

It may be a pain to divide these digital assets, but it should be dealt with during the divorce proceedings, particularly any income-generating assets or virtual currencies.  You do not want to deal with this after your divorce has been finalized.

You should not change passwords or block access to a digital asset until you have agreements with your spouse or a court order allowing you to do so.  Preemptively removing a spouse’s access can create bigger problems for you in the long run and in many instances would be a violation of the county’s standing orders.

When going through a divorce, take the time to discuss your digital assets with your attorney.  These are as important as ever and the attorneys at The Draper Law Firm are ready to help.

Blog Post by Samantha Mori, Associate Attorney

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One of the most common questions we are asked in divorce cases is: What happens with the house?  There are several important factors that go into answering this question.  First, is the house community property or separate property?  The house is community property if it was bought during the marriage (unless purchased with someone’s separate property funds.)  If the house was bought prior to the marriage, it is the separate property of the person who bought it.   This is true regardless of whether or not the couple was together at the time they bought the house.

If the house is community property, the general rule is that if one party wants to keep the house, he or she must (a) be able to refinance the mortgage into his or her own name; and (b) be able to buy out the other person’s share of the equity.  The equity buy-out can occur in a number of ways, such as shifting other assets to the other spouse to account for the equity, a cash-out refinance, or the spouse taking the house takes on additional debt to balance out the equity.  A stay-at-home parent is almost never able to refinance and keep the house because he or she does not have the income to qualify for the mortgage independently.

If the house is separate property, the house goes to the person who owns it.  The non-owning party may be entitled to reimbursement for some things related to the house.  The non-owning spouse is entitled to be reimbursed for one-half of the principle reduction of the mortgage during the marriage and for any increase in value due to capital improvements made to the house during the marriage with community funds.  The non-owning spouse does NOT get the benefit of any increase in value of the house that happened during the marriage.

Below are a few examples of common scenarios we see related to the house.  Each of these scenarios involves the same couple who is together the same amount of time, but the end result can be very different.

Ex. 1:  John and Mary got engaged after having dated for two years.  They looked for a house together, picked it out together, and participated equally in choosing the house.  The purchase price of the house was $500,000.  John was approved for the mortgage on his own, so the transaction took place entirely in John’s name.  John closed on the house on March 31, 2005, with John putting 20% down and taking out a mortgage for $400,000.  John and Mary got married on April 1, 2005 and immediately moved into the house.    No payments were made on the house until after the parties were married, and the couple never made any capital improvements.  John and Mary decide to divorce in 2019.  The remaining balance due on the mortgage is now $300,000, and the house is now worth $600,000.  In the divorce, the house will be confirmed as John’s separate property.  Mary is entitled to reimbursement of $50,000 (for her half of the principal reduction of the mortgage.)

Ex. 2:  Using the same facts as example number 1, except that John signed the contract to purchase the house on March 15, 2005 but did not close on the house until April 15, 2005.  Even though he closed after the date of the marriage, the house is still John’s separate property because he signed the contract prior to the date of divorce.  The result is exactly the same as in example 1 above.

Ex. 3:  John and Mary got married on April 1, 2005 and entered into a contract to buy a $500,000 house on April 2, 2005.  The parties put 20% down (which came from John’s separate property from before the marraige) and took out a mortgage in both parties’ names for $400,000.   The parties divorce in 2019, with the house being worth $600,000 and the balance due on the mortgage being $300,000.  The house is community property, but John is entitled to get his $100,000 separate property down payment back  The remaining $200,000 in equity is on the table for property division.  If John keeps the house and buys Mary out of her half of the equity, Mary will get $100,000 from the house.

Ex. 4:   John and Mary have been dating for a year.  They pick out a house together, and John purchases the house for $500,000 on March 31, 2005.  Again, he put 20% down and took out a mortgage for the remaining $400,000.  The parties moved into the house together on April 1, 2005.  Although the parties lived together the entire time, they did not get married until April 1, 2018.  On the date of the marriage, the balance due on the mortgage was $310,000.  The parties divorce in 2019.  The balance due on the mortgage is now $300,000.  The house will be confirmed as John’s separate property, and Mary is entitled to reimbursement of only $5,000 (for half of the principal reduction during the marriage.)

As you can see, when someone purchases a house is vitally important to how that house is handled in a divorce.  In all of the above scenarios, John and Mary put the same amount of total funds into the house, but the amount of community equity varied dramatically based on the timing of the home purchase and the timing of when the parties got married.  Because of the complex issues involved with community and separate property, it is a good idea to consult a knowledgeable family law attorney if you need to determine exactly what would happen with your house.

house pic

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