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 most significant 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 want to guide you away from directions that won’t be beneficial to you and towards advice that can assist you in divorce.
For instance, an excellent 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. Suppose you have been going through weeks or even months of arguing and fighting at home. In that case, it could make sense on many levels to exit the house to maintain your sanity and prevent the situation from escalating. Some separation and some distance could do your family a lot of good. You might 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 a judge would believe that you have abandoned your family in doing so. 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 might 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 expected to tell you if you find yourself in a situation like this. You will need to consider whether or not you and your spouse disagree on which one of you is going to have primary custody of the kids. If you agree that she will be the primary custodian of the kids and would be remaining in the house, 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 and 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 should reflect that. This is just as true for mothers as it is for fathers. Fathers generally will be the ones 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 house more readily. While this is a mistaken assumption, it will pigeonhole fathers into taking on the noncustodial parent’s role.
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 considerations I paid to stay in the house for the kids’ sake or stability are thrown out the window when violence has entered the home. If you have children, you risk the images of their parenting fighting being indelibly pressed into their brains. You do not want the lasting impression 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 wrong decision.
In that case, you may be better off staying with a friend or even getting a hotel room for a couple of nights to see how things are going at home. It could be a significant risk to remain in the house 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 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 house during your divorce without your spouse’s permission. For instance, it is a violation of the temporary orders in your case to drive up to your house and to 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 place after 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, you would have an uphill climb 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 they do not have to do concerning temporary orders. If you are more likely to pay the mortgage on the house after the divorce, 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 house no longer suits her, 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, 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 to frame this issue for you or anyone else who is going through a divorce and has questions about the family house. Suppose your spouse is awarded temporary exclusive use of the home that does nothing to alter your ownership stake in the place. 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 permits you 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 you need early 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 place before you go to be sure that the items are accounted for at the end of your case.
Before you remove property (even if you believe it to be your separate property) from the house, you should talk to your spouse about what you are drawing, how you will 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 will 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 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 them 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 of the most critical questions in your divorce. The difference between one or the other could be between what rights you have to that house and what financial impact your divorce will have on you. 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 the inception of title rule. This means 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 didn’t matter when the house was closed on. What matters is when you put the good faith/earnest money down on the place and sign an intent to purchase the home. If you 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 particular property because you purchased it with individual 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 tilting the house in both of your names, it would be presumed that you were gifting one-half of the ownership of 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 its characteristics, I will 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 an excellent opportunity to have your questions answered, and your needs addressed directly.