So much of a divorce boils down to strategy. What do you want to do with your money? What do you want to do with your property? What do you want to see happen with your children? These are all relevant considerations for someone going through a divorce, and foremost among those concerns are questions about your home. We started discussing yesterday's blog post and what we will continue to discuss today.
A common question that I receive from clients and potential clients alike is whether or not it is a brilliant idea to move out of the family home before the divorce starts. Most frequently, this is a question asked by men/fathers. I think the reason for it is that there is often tension in the home, and fathers believe that by leaving the house, the pressure will dissipate, and things will be better for everyone- especially the kids. Another reason fathers ask this question is that, from my experience as a family law attorney, fathers are not typically the primary caretakers of their children. Mothers are usually expected to become the primary conservator of their children after a divorce. It would stand to reason that mothers would stay with their kids in the family home while the father exits stage left.
Still, other people would like to be able to leave home to calm the waters at home but cannot do so for financial reasons. The burden of paying a mortgage payment and a rent payment would be significant for most people, so until a court determines who will pay what bills, many people will stay in the house with their spouse. Think of the "I Love Lucy" television show episode where Lucy draws a line down the middle of the room to mark which side is "hers" and her husband's. Many families do something like this, only without the formality of a line drawn.
On the other hand, some people will come into our office and will hesitate to leave the family home because they fear that in doing so, a judge will accuse them of not taking the responsibility of raising their family seriously. Also, if your spouse does not work, you may be concerned that leaving your home will signify that you are abandoning them to survive on their own.
Why you may (or may not) want to move out of the family home
First and foremost, if you believe that you and your spouse are going to engage in a conflict regarding who is going to be named as the primary conservator of your kids, then you probably will want to stay in the family home until you are ordered not to be there any longer. If you willingly choose to leave the family home without your kids, that will not be seen as a favorable decision by the judge in your case. In your mind, as we just covered, you are reducing the stress level and removing yourself from a toxic environment. In another sense, you are also leaving your children behind in an environment that probably isn't that great.
With that said, if you believe that violence may result from your stay in the house, it may be a good idea to leave home and stay with a friend or family member. Only you can say with any degree of certainty whether or not there is a chance that violence could result from your stay in the home. The last thing you want is for any violence to occur and for your child to witness (or be a part of) those violent acts. Another issue you want to avoid is your spouse's ability to invent (another word is "lie") a story about you acting violently towards them or the children. If you know that your spouse is violent or has a propensity to be untruthful about matters like this, then you need to move increases.
If violence has occurred against you, your children, or any other member of your household, then you can petition for a protective order from the court. There are multiple ways to get a protective order (of which we have written many a blog post about here on our website). I'd recommend you read about protective orders via those blog posts and then speak to an attorney about getting the ball rolling if this is a relevant consideration in your divorce.
Suppose you move out of the family house before or during your divorce. That does not automatically mean that you cannot be awarded the place after the divorce. You will need to qualify to pay the mortgage on your own or be ready to refinance the mortgage. Either way, if you cannot financially pay the mortgage and other costs of the house, you will not be awarded it. Either way, you need to know that leaving the house during the case alone will not bar you from being awarded the home in the property division of your divorce. The same goes for being granted primary conservatorship of your children.
What does it mean to have exclusive use of your family home during a Texas divorce?
Everything is temporary in a divorce until your final orders are signed. However, divorces frequently take four, five, or six months to complete, so we are still talking about a relatively long time for you to be in or out of your home. If you are awarded temporary and exclusive use of your home, you need to know what this means and how to negotiate before and after being awarded this designation.
First of all, if you are not awarded temporary and exclusive use of the family home, it is expected and ordered by the court that you will not enter the home unless you have your spouse's permission. Even though you are an owner of the house and are still paying mortgage payments each month, you cannot just come and go as you please. This may sound wrong to you, but once you open up your family business to a family court judge, you lose a great deal of autonomy over the situation. This is an example of a part of your life where you are, temporarily, unable to exert as much control as you were able to do previously.
What can you take (and not take) out of your family home if you have to move out?
This is another common question that I get from spouses going through a divorce. If you are ordered to leave the house during a divorce, you will have an opportunity to go back into the home for a short period to retrieve your separate property. You can then take your individual property with you to your new residence. However, as I'm sure you could imagine, there are often disputes about what items are removed from a family home. For instance, if you believe that a piece of furniture is your separate property, but your spouse thinks it is community property, there will be a dispute.
Since you may not (and probably will not) have a list of community versus separately owned items, it is best to be as reasonable as possible when removing items from the family home. You do not need to leave an item just because you think it may upset your spouse, but taking things that you know are your spouse's separate property or that you know will bother your spouse a great deal is not wise.
I hear some parents do in these circumstances that can rile up the other spouse when a mother or father removes essential items for their children from the family home. This could be the mattresses from your kid's beds, clothing, school supplies, and anything in between. If you are not the primary conservator of your children, these items need to stay at home. I'm not telling you not to get duplicate items for your own home, but I am telling you that the burden falls on you to purchase them.
A great thing to do in this situation, whether you are the spouse who is staying in the home or is leaving, is to take your phone out and video record all the rooms of your home so that you have a history of what is and what is not in each room. This is a good move, especially if you are the parent who will be leaving home. If your spouse decides to sell, throw away, or otherwise get rid of an item, you will have proof of its existence.
Who owns the house?
We know from other blog posts written on this website that Texas is a community property state. That means that it is presumed that any property that came into the ownership of you and your spouse during your marriage is owned by the community. There are exceptions for property owned by either spouse before the wedding (separate property) and property acquired by either spouse during the marriage by gift or devise or descent.
Houses are classified as either separate property or community property, just like every other type of property you will encounter in your divorce. The inception of title rule applies to family homes regarding determining whether the house belongs to the community estate or the separate estate of either spouse.
The date that earnest money (basically goodwill money) is paid on the contract for the house is considered to be the date that the property came into ownership of you, your spouse, or both of you. It doesn't matter if you purchased the house as a single person and then closed on it as a married couple. The house is still your separate property. The names on the title to the document wouldn't change this designation, either.
Here is an interesting question that I get from clients on occasion: what happens if you own a piece of land as your separate property, and subsequently, you and your spouse build a house on that land during your marriage. Does the house count as a particular property as well? The answer, at least in Texas, is yes. While you would have separate property ownership in the home, your spouse would likely be able to make a reimbursement argument because the house that she helped build and contributed community income towards has increased the value of your separate property.
Here is a slight twist on what we have been talking about so far in today's blog post. If you purchase a tract of land during your marriage with separate property income and decide to title the parcel of land to you and your spouse, then it is assumed that you are gifting one-half of your interest in that tract of land to your spouse.
More on community property issues relevant to your divorce will be posted in tomorrow's blog post.
Thank you for joining us today here on our blog. We hope that the information that we have shared with you has caused you to learn more about Texas family law and has provided you with some peace of mind as you go through some changes in your life.
If you have any questions about the material that we shared today, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week here in our office. These consultations are an excellent opportunity for you not only to ask questions but to receive feedback about your specific circumstances. Thank you for your time and consideration, and we hope to see you again here tomorrow on our blog.
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