In many divorce cases there will come a point in mediation where one spouse will be concerned that the other will not follow through on some part of their agreement. I’ll give you an example. Suppose that in your divorce you and your spouse agreed that you would move out of the home in favor of your spouse who would remain and take up the responsibility of paying the home mortgage. In exchange for doing so, you would be paid 50% of the equity in the home as your parting gift. The house is theirs, your money is yours. Makes sense, until you get the part where human nature comes into play.
Your spouse trusts you, their attorney and the judge on some levels, but on others not so much. After all, part of the reason that he is getting a divorce from you is that there is some degree of mistrust between you and he. That mistrust is manifesting itself now in his unwillingness to pay you the equity share that you are entitled to under the agreement. You’ve attended mediation and settled all issues in your case. A valid Mediated Settlement Agreement (MSA) was signed by all parties, your attorneys and the mediator. The only thing that needs to be done now is to take that MSA and to create a Final Decree of Divorce that a judge is willing to sign off on.
The problem is that your spouse does not want to pay you the equity owed to you under that agreement until he knows for certain that the judge will be signing the order. So, you are essentially in a period of limbo. You’ve already moved out of the house. Your stuff is in a storage facility that you are paying rent on. You are living with a relative or friend for the time being. You never thought that it would take this long. After all- the agreement said that your spouse would pay you X amount of dollars on a certain date that would be weeks before the divorce would probably conclude. Now you’re stuck and wondering what you can do to make sure that he follows through on what was promised in mediation and what is about to become a court order.
Protecting yourself and your interests is key in any divorce case
Often times what your attorney can and should do is write into the MSA and the final decree of divorce that there will be a separate judgment owed to you against your spouse in regard to whatever sum of money is owed to you. Until that sum of money is paid there will be a lien placed on your former home that encumbers it from being sold until the judgment is paid to you in full. This is usually a motivating factor in and of itself for spouses that owe money to another spouse to pay the judgment quickly so that they can sell the home or take out a home equity line of credit, etc.
A second method utilized with some frequency in situations like this is to provide you, as the spouse who is owed money, with the right to be able to foreclose on the home in the event that the money is not paid to you. This allows you to take back possession of the home from your ex-spouse if he reneges on his promise to pay. You then have a judgment already in place against your ex-spouse and now you have possession of the home as well. This is a strong position to be in.
The other side to that strong position- it will cost you to get there
The best things in life may be free, but the best things in a divorce will cost you money. Sometimes a significant amount of it. All of the protections that I wrote about in the section before this one will take extra time to negotiate on, write into your Final Decree of Divorce and finally to file in all the necessary governmental offices. With all of this said, it is pretty obvious to me and likely to you as well that any hopes that you had of being able to represent yourself go out the window if you believe that you will need these sort of protections built into your divorce decree.
At the end of the day you pay to insert the protections into your divorce decree as a preventative measure. However, you will still need to follow through and see to it that the terms of your decree are enforced. This means that if your ex-spouse violates any term of your divorce decree you will need to file an enforcement case against him or her. You will wind up back in the same family court that granted you the divorce. Again, plan on hiring an attorney paying the initial costs of a case and going through the general hassles that are associated with the filing of any sort of lawsuit.
Concerned about your post-divorce credit? Read on
While you are waiting to have the money paid to you bills, expenses and life in general will continue on as if your divorce never happened. Bill collectors, mortgage companies and other people who are expecting money from you will not care what your circumstances are or what your spouse promised to do in the divorce decree. All these folks will care about is getting their money on time. If you fail to do so your credit will inevitably take a hit. This can impact your life now and in the future if you, for example, want to take out a home loan to purchase a new house.
Summing it all up- know what your going to do now and in the future when it comes to your money
It takes a leap of faith to simply begin a divorce. You are placing a lot of trust in people and institutions that you probably know little about and have little reason to trust in a lot of ways. This is all on top of the fact that you don’t know how your spouse is going to conduct him or herself during the process. It is stressful and not something that most people would enter into without some reservation.
On top of this you are likely finding that your lifestyle is changing and that you are having to make concessions on issues that are important to you. If you are moving out of your home with a promise that you will be paid your share of the equity you are likely doubly uneasy about the whole process.
With that said, you need to ensure that you understand your rights and understand how to turn a divorce into something that can ultimately be beneficially for you and your family. Finding a rock solid family law attorney, someone who will represent your interests and advocate for you, is the first step to achieving those beneficial and positive results. Today’s blog post should show that strategy and knowledge of divorce law is essential when it comes to handling money related issues.
Questions about divorce in Texas? Contact the Law Office of Bryan Fagan, PLLC today
If you have any questions about the material that we covered today or simply want a clarification on a subject we touched on please contact the Law Office of Bryan Fagan, PLLC. We offer free of charge consultations six days a week with one of our licensed family law attorneys. These consultations are comfortable and pressure free. Our intent is to address your questions and help you to game plan for your divorce in the most efficient manner possible. Thank you for your consideration and we hope you will join us again tomorrow when we post another relevant blog on family law in Texas.