QUESTION
What are my rights if I’m not legally separated?
Asked on Feb 20th, 2014 on Divorce - California
More details to this question:
My husband and I have been married for 7 years. We have two children from the relationship and I have a child from a relationship prior. We recently separated due to marital issues. He became addicted to hydrocodone and had me taking them also. I wanted out from under taking these and he did not. So, I left with the children and have since been off the medication. He has continued to take them. He bought a house during our marriage in which during the first few years of owning the home I have helped pay for the house. During the last couple of years he paid the majority of the payments while I went to school, but we used some of my school loans to help pay for the bills. He became unemployed and recently went to Texas to work. I now work at a truck stop and reside in the house, but he wants me out if I file for divorce. What rights do I have in regards to the house? I don't want to up root the children again for a third move.
6 ANSWERS
Dispute Resolution Attorney serving Seattle, WA
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Law Offices of Helene Ellenbogen P.S.
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Since the house was purchased during the marriage the mortgage payments, regardless of who made them, were paid from community assets as all earnings in a marriage are community property. You don't say what the source of the down payment was. Unless he can clearly show the money for it came from a separate asset (e.g. an inheritance) it too is community property regardless of whose name the house is in. If the house is community property and you want it, you can ask for it in the divorce, but will have to refinance it in your name and pay him a portion of the equity. It would be in your interest to file and make a motion for temporary orders that allows you and the kids to stay in the house until the property issue is completely settled.
Answered on Feb 25th, 2014 at 4:30 AM
Commercial Contracts Attorney serving Boise, ID
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Peters Law, PLLC
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In Idaho, you probably own half the house, even if only his name is on it. Even if you don't own half the house, you can probably get the judge to allow you to stay there for a good period of time until the issue can be worked out.
Answered on Feb 24th, 2014 at 9:04 PM
Social Security Disability Attorney serving Melbourne, FL
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Law Office of Robert E. McCall
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Cannot give specific answer, but you do have ownership interest. You need to speak with a local attorney or Legal Aid office.
Answered on Feb 24th, 2014 at 8:39 PM
Family Law Attorney serving Irvine, CA
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Law Office of Julie A. Ringquist
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Any money earned during the marriage is community money, it does not matter which of you earned it, therefore it appears the home is community property and the equity will need to be split (either by selling it or by refinancing the home into your name alone and paying him his half of the equity value). However, nothing will be done with the home until the court makes final orders, at this point the home is in your possession and the court will not make you move out (of course you will be required to continue making the payments). Once your Judgment is finalized, it will include the disposition of the home (to either be sold or refinanced or awarded to you alone if there are other assets equal to it's value which could be awarded to him).
Answered on Feb 24th, 2014 at 7:59 PM
Family Law Attorney serving Durham, NC
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Morelos Law Firm
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Contrary to your thinking, you ARE in fact now legally separated. As soon as you start living in separate residences, the separation has begun. It is only on TV and possibly other state's laws that people think you have to actually DO or FILE something to start a "legal separation". Regarding your rights and legal options, you can have those handled now (either by agreement or court, which from the sounds of things unfortunately sounds like it would be court and he won't agree to anything). You should therefore consult with an attorney ASAP to discuss.
Answered on Feb 24th, 2014 at 7:53 PM
I'm sorry for all that you've been through. It definitely sounds like a difficult situation. As far as the house, it was purchased during the marriage, so it's community property unless there is some fact that shows otherwise. As a general rule, all community property is divided equally between the husband and wife during divorce. It is not uncommon that a court will allow the spouse who is raising minor children to remain in the house until the children reach the age of maturity, then the house would be sold. Also, if you're willing to carry the debt, it's possible you could get a judgement that transfers to the house, and the corresponding debt to you solely. Ultimately, that has to be decided by the court. So, simply filing for divorce does not give your husband any right to try to force you out of the house.
Answered on Feb 24th, 2014 at 7:40 PM