When you sign up with an attorney to represent you in your Texas divorce, it is wise to go to your initial meeting with that attorney carrying questions that you would like answered. A few of those questions should concern your home. Whether you have children or not, the family home is still your largest investment (most likely) and you want to handle it correctly during the divorce. In speaking with friends and family you may have received advice that is not necessarily on point or ultimately will be helpful. I’d like to guide you away from advice that won’t be beneficial to you and towards advice that can assist you in the divorce case.
For instance, a good question to ask your attorney would be whether or not it is a wise idea to move out of the family home before a court order forces you to do so. If you have been going through weeks or even months of arguing and fighting at home it could make sense on many levels to exit the home in order to maintain your sanity and prevent the situation from escalating. Some separation and some distance could do your family a lot of good. You may have even convinced yourself that doing so would be good even if you had kids. You would be doing this for them, you could tell yourself.
Does leaving the house cause the judge to look down upon you?
On the other hand, you may be taking the opposite perspective on the situation. You may be concerned that in doing so a judge would believe that you have abandoned your family. What if you are the only breadwinner in the family? How would your spouse and kids be able to pay bills and eat without you there? Even if you were giving your wife cash to pay the bills and handling everything that you could over the internet you may have some concern that the optics of the situation are that you have left your family to fend for themselves. Meanwhile, you have up and left for greener pastures.
Which one of these assumptions is more likely to be accurate? Here is what your lawyer is likely to tell you if you find yourself in a situation like this. You will need to consider whether or not you and your spouse are in disagreement on which one of you is going to have primary custody of the kids. If you are in agreement that she is going to be the primary custodian of the kids and would be remaining in the house then you shouldn’t have any issues to encounter on this issue if you want to leave the house.
On the other hand, if you want to remain in the house after the divorce concludes and/or want to be the primary custodian of the kids you should think twice before leaving the marital home. If being with the kids is what you want after the divorce, your actions during the divorce should reflect that. This is just as true for mothers as it is for fathers. Fathers generally will be the one to move out of the home. These men will assume that they will have no opportunity to become the primary conservator of their kids and therefore will move out of the home more readily. While this is a mistaken assumption it will basically pigeonhole fathers into taking on the role of noncustodial parent.
Safety first, Strategy second
If there has been yelling, screaming, fighting or even violence in the home then one of you does need to go. Any of the considerations I paid to staying in the house for the sake of the kids or stability are thrown out the window when violence has entered the home. If you have children then you risk the images of their parenting fighting being indelibly pressed into their brains. You do not want the lasting image you to be one of you fighting with their other parent. Even if you don’t have kids you will want to avoid putting yourself in a situation where you could be the victim of violence or risk committing an act of violence upon your spouse due to a bad decision.
In that case you may be better off staying with a friend or even getting a hotel room for a couple of nights just to see how things are going at home. It could be a major risk to remain in the home when violence is going on. There is nothing wrong with moving out to save yourself or your spouse a great deal of heartache. You can worry about the strategies of your case. The safety of your children, your spouse and yourself are the most of important factors to consider now and at all points moving forward in your divorce.
What does temporary exclusive use of your house mean, exactly?
If your spouse is awarded temporary exclusive use of the home this means that you cannot enter the home during the course of your divorce without your spouse’s permission. For instance, it is a violation of thetemporary orders in your case to drive up to your house and to just walk right in. Even though you may have a legitimate reason for entering the home and intend only to stay for a minute it is still a violation of the court order. Exclusive use of the home for your spouse means that she gets to use the house to the exclusion of every other person- and that includes you.
Does that mean that you are not the owner of the house? Have you cost yourself any chance at being awarded the house at the conclusion of your divorce? I would give you an emphatic “no” as a response to both of these questions if I were your attorney. The fact is that, yes, the temporary orders in your case do tend to resemble the final orders a great deal. That means
If you did not win the right to stay in the home during the divorce that you will have an uphill climb to be able to do so in final orders.
However, that’s not to say that it cannot be done. A judge has to take a long-range view of the house at final orders that he or she does not have to do in relation to temporary orders. If you are more likely to be able to pay the mortgage on the house after the divorce, then that may allow you to get an advantage when it comes to negotiating to get back into the home. Or, your spouse may find that living in the home does not suit her any longer and she may willingly give up possession to you in final orders mediation.
The point is that you don’t know what will happen during the case. The average divorce is about four to five months long. A lot can change during that time period and some of those changes will likely benefit you. Do not put yourself in a position where you are violating a court order early in a case and that costs you the ability to achieve your reasonable goals later on.
Here is the best way that I can think of framing this issue for you or anyone else who is going through a divorce and has questions about the family house. If your spouse is awarded temporary exclusive use of the home that does nothing to alter your ownership stake in the house. Your name still appears on the title and mortgage to the home. It is still your house. You are still the owner of that home.
However, while your divorce is ongoing your spouse will have the ability to live in the house and use it as a homeowner would. Unless she invites you over or otherwise gives you permission to enter the house then you do not have the right to do so. This may be frustrating to you, but it is your reality- even if it is only a temporary reality. Do not attempt to enter the house if only for a minute. Ask permission to enter the house. You can work out a time and date to clear any personal belongings that you need early on in your divorce. If you intend to move back into the house then you can leave other items there. I would, however, take photos of all property in the house before you go just to be sure that the items are accounted for at the end of your case.
Before you do any removal of property (even if you believe it to be your separate property) from the house, you should talk to your spouse about what you are removing, how you are going to remove it and when all of this will take place. Do not attempt to figure all of this out via email or text message. I can tell you from experience that something is going to be lost in translation if you attempt to coordinate things this way.
Do not let common sense and fairness go out the window just because you have a court order in place. Document everything that you remove from the home and send a list to your spouse on the day you move out. This way he or she will not have the opportunity to argue that something caught him or her by surprise. If you are honest, disclose what you are doing and communicate well with your spouse this process does not have to be an overly painful one.
What kind of property is the house: community or separate?
The characterization of your home as either community or separate property will be one the most important questions in your divorce. The difference between one or the other could be the difference between what rights you have to that house and what financial impact your divorce will have on you. As such, it pays to be very detailed as to how you analyze the type of property the house is.
The rule that is relevant when determining how the house will be categorized is called the inception of title rule. What this means is that the owner of your home will be determined by going back in time and determining when the earnest money was paid on the house and a contract is signed. It doesn’t matter when the house was closed on. What matters is when you put the good faith/earnest money down on the house and signed an intent to purchase the home. If you were to put earnest money down on a home while you were single but closed on the home when you married a Texas court would find that this house is your separate property.
An interesting situation that you may find yourself in is what happens if you were to purchase real estate with your separate income during the marriage, but you title the house to yourself and your spouse. Would the house be your separate property because you purchased it with separate property? The answer to that question is that likely the house would be found to be community property. The reason for this is that by titling the house in both of your names it would be presumed that you were gifting one half of the ownership in the home to your spouse.
Questions about refinancing a marital home? Stay tuned tomorrow for more information
If you have any questions about how refinancing a family home may alter how it is characterized, then I wil be excited for you to return to our blog tomorrow to find out more about this subject. In the meantime, if you have any questions about what you read 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. These consultations are a great opportunity to have your questions answered and needs addressed directly.