Who gets the house in a divorce

Occasionally, clients ask us who will get the house in a divorce. The short answer (that our clients don’t like to hear) is that it depends. 

Is it Marital Property or Separate Property? 

Property that was purchased by one of the spouses while they were married is called Marital Property. It doesn’t matter if the title features one name or both names. As long as it was purchased during the marriage, it’s considered marital property. 

Separate property pertains to property that a spouse purchased prior to their marriage. For example, if someone purchased their first house after college and then a few years later got married and lived in that house together, the property is considered separate.

The type of property involved is important because it plays a role in the divorce. If the home was considered separate property, it stays with whoever purchased it. If it’s marital property, the home’s value will be considered part of the assets getting split. 

Who Gets the Kids? 

Another factor that can determine who gets the house is the kids. However, if no young children live in the house at the time of the divorce, this doesn’t apply. 

For instance, suppose the father has visitation rights, but the mother gets custody of the children. In that case, the mother is more likely to get the house in the divorce because it provides her with a good place to raise the kids. 

Equitable Distribution Plays a Role in Who Gets the Home

As you go through the divorce process, you’ll likely hear the term “equitable” a few times. Essentially, this means fairly divided. Note that it does not mean equal – although many times, that’s how it shakes out. 

Let’s take the case of a couple that has a home worth $200,000 and financial assets worth $250,000. Their total assets are $450,000. 

 With equitable distribution dividing assets and finances the court may say one spouse can keep the home and $25,000 while the other spouse gets the rest of the $225,000 in assets. 

Unfortunately, the case usually isn’t this simple. Still, it gives you an idea of how equity comes into play in who gets the home. 

Who Can Afford the Home?

It may seem obvious, but it should be said – if one of the people getting divorced can’t afford the home on their own, they probably shouldn’t stay in it. 

For example, maybe it was a two-income family, and the home was a significant expense. It will probably be hard for one person to pay for it after dropping down to one income. Things like alimony or child support help, but they shouldn’t be relied upon to pay the mortgage every month. 

Can the Home be Sold?

Now and then, the court will order the home to be sold. This makes it easier to divide the assets between the two individuals because it brings extra cash into the picture. 

Conclusion

For personalized guidance and advice on how to secure your home in your divorce, send us an email at info@voneschlaw.com. We’re here to help you in any way that we can. 

Alimony Guidelines: What Records to Keep Regarding Your Alimony

Photo credit: Galyna Motizova / shutterstock.com

You should probably keep records of both your dispersal and acceptance of alimony payments.

In general, alimony (or spousal support) refers to payments from one spouse to another following a divorce or separation. Alimony is not a requirement of a divorce and it is up to the judge to determine whether alimony is needed on a case by case basis. The more modern trend is away from alimony orders, but courts still issue judgments for alimony after long marriages where one spouse earned significantly more than the other. Alimony is also ordered in divorces where one spouse left the workforce to care for children or take care of the household.

In most situations, alimony is tax deductible for the person paying the alimony and is classified as taxable income for the person receiving the alimony payments. This is why alimony guidelines suggest that you keep records of all payments and acceptance of alimony. It often happens that after a messy divorce, the spouses will challenge (or, in some situations, the IRS will look into) amounts that are paid and accepted as alimony. If you do not have documentation that shows just how much was paid or accepted, the person paying alimony may end up losing the tax deduction for the alimony payment and could even be ordered to pay the other spouse any payments that were not documented.

Alimony Guidelines: What the alimony payer should keep

In general, the person that is responsible for paying alimony should keep:

• A document that has a list showing when each payment was made. This information should include the check number, the address that the check was sent to, and (if your bank supplies it) a copy of the cashed check;
• Copies of each check that is used for alimony payment. Be sure the write in the memo portion of the check which month the alimony payment is supposed to cover; and
• Receipts for each alimony payment that is made by cash. Be sure that you have the other person sign each receipt that shows they received the alimony payment as well as the month that it was for.

As with all documents that you may need in case of a tax audit, you should keep all of these records for at least three years from the date you file a tax return on which you claim the alimony tax deduction. Some experts even go so far as to say that you should never throw away these records, as they can be used to show that you did indeed pay alimony should your ex-spouse ever decide to challenge you in court.

Alimony Guidelines: What the alimony recipient should keep

The former spouse that is receiving the alimony payments should keep a detailed list that records each alimony payment that was received. For each payment, the recipient should include:

• The date that the payment was received;
• The amount of the payment that was received;
• The check number that the payment was issued from (or another piece of identifying information such as the money order number);
• The account number from which the check draws payment;
• The name of the bank from which the check draws payment (or the place where the money order was issued from);
• A copy of the check or money order that was used for payment; and
• A copy of any receipt that you signed in acceptance of a cash payment.

Just like the payer of alimony, the receiver of alimony should keep these records for at least three years in case the IRS comes knocking. In addition, if you feel that your former spouse has stopped making alimony payments, you can take your record to court with you to show where your ex stopped making payments and demand that future payments be made.

Free Legal Review Of Alimony Issues

If you’re facing alimony issues in your divorce case, there are a number of factors that the courts will consider in deciding whether and how it should be granted. Alimony could also be used during negotiations and may help you to achieve an out-of-court agreement. Before making any promises, however, it’s important to speak with an experienced family law attorney.

Post courtesy of family.findlaw.com

Determination of Spousal Support

Photo credit: AVN Photo Lab / shutterstock.com

When two people are getting a divorce in in many states, support payments can have an impact on how property distribution is awarded. Therefore, alimony can directly affect the outcome of a divorce. If you and your spouse are having difficulty coming to an agreement over support payments, the Superior Court can step in and order one spouse to pay support to the other on a case-by-case basis.

No two marriages are alike, nor are the reasons for getting a divorce. There are times when a husband or wife may seek alimony payments from their spouse in a divorce. Spousal support serves a specific purpose in divorce cases – it’s meant to provide economic support to one spouse who has a much lower earning potential capacity over the other spouse.

It is usual for one of the spouses to be in the workforce, commanding a high salary, while the other spouse manages the household and cares for the children. Although only one person is making money, it is considered that both spouses are contributing to the marriage and the family unit. If the couple were to get a divorce, the wife might seek spousal support until she can become self-sufficient.

The courts will take into consideration how long it will take the wife to become self-supporting and what actions she must take to get there. For some, it might take four or five years – the length of time it takes to go back to college and earn a degree.

As courts want to cause as little disruption in the children’s lives as possible, they might award the mother spousal support for some years as without alimony; she wouldn’t be financially capable of keeping up the payments and standard of living that she and the children previously enjoyed.

Whenever a divorcing spouse seeks support payments, there are certain factors that the judge will take into consideration when making that determination. First and foremost, the court will take into consideration the length of the marriage. The courts would be far more inclined to award alimony to a man or women who were married for ten years versus someone who was married for only a year.

They will also look at what each spouse needs. For example, one spouse may have a solid, steady job, while the other spouse might be unemployed. On the other hand, if one spouse were a doctor and the other a lawyer, they might not award any spousal support since both individuals were making a good living.

The courts will look at what each person can pay. If neither spouse can afford to support the other, it might be unrealistic to award spousal support payments. They will also look at whether having a job would make it too difficult to care for the couple’s children.

The judge will also consider the age and health of both spouses. If one of them is suffering from a debilitating disease, the judge might be more inclined to award support to that person if their ex can afford it.

In the situation where one spouse or partner supported the other through college, career training or while pursuing a professional license, the judge will take that into consideration.

The courts will also consider debts and property and whether one spouse’s career was affected by years of unemployment by taking care of the home or children. Furthermore, the judge will factor in each spouse’s unique hardships that they are presently facing.

An important issue regarding awarding spousal support is that of domestic violence. The courts will evaluate all documented evidence of any history of domestic violence between both parties. The history of domestic violence and the emotional distress it caused will be a factor in awarding support, no matter whether the victim was the supported party or the supporting party.

The courts will also consider the immediate tax consequences for both parties and whether or not, either spouse has any prior criminal convictions.

What Are Your Spousal Support Options In A Divorce?

Photo Credit: http://www.BillionPhotos.com/Shutterstock.com

The spousal support options in a divorce are defined by California law and further defined by applicable appellate court decisions which are considered to be precedents in this matter. The state law mandates that permanent spousal support be determined by a careful review of numerous factors, and the courts have substantial discretion in determining what these are. Thus, the courts have a lot of leeway in awarding alimony. Temporary support payments may be ordered if it is deemed necessary.

Considering the complexities of the law and the subsequent appellate decisions along with the numerous factors a court must consider, it is essential that you have the benefit of an attorney who is highly experienced in dealing with spousal support issues. The courts consider the financial position of the supporting spouse and the ability of the supported spouse to become self-supported. The earning capacity of each party to maintain the standard of living enjoyed during the marriage will be important considerations. This means that the courts will consider the ability of the supporting spouse to pay spousal support by reviewing the supporting spouse’s earning capability along with unearned income and assets.

The courts can consider other criteria in awarding spousal support that are focused on financial matters. One such example arises when the supported spouse made it financially possible for the supporting spouse to obtain an education or a license that resulted in a substantial earning capacity and a higher standard of living than would otherwise be obtained.

The needs of dependent children for a full-time parent will also be pivotal in the spousal support determination.

Courts have wide latitude in determining the length of spousal support. While the goal of spousal support is to enable the supported party to become self-supporting within a reasonable period, this period is usually considered to be one-half of the length of the marriage if the marriage is less than 10 years old. However, nothing in the law mandates this or any other duration. The courts have the discretion to order support for any length of time, but the courts most often use the guidelines that are set forth in case law precedents. California courts never favor lifetime support. The California appellate courts have held that the supported spouse is entitled to support only for the period that is required to become self-supporting. For marriages that lasted longer than years, the courts generally expect the supported spouse to become self-supporting as quickly as is reasonably feasible.

Spousal supports can be terminated or modified by seeking an order from the court. A thorough justification must be provided, and such a request can be objected to by the supported party.

The supporting party must understand that spousal support can last longer than is necessary if you are not proactive in presenting your side of the matter.

The Family Law Section at the VonEsch Law Firm can discuss your options regarding spousal support. Seeking the assistance of an attorney will be highly beneficial. Keep in mind that California courts only award spousal support in only about 15% of divorce and separation cases.

Making Your Case For Spousal Support

Photo Credit: http://www.BillionPhotos.com/Shutterstock.com

After separating from your spouse, you are likely to experience some financial challenges. Depending on what kind of separation you had, you may be entitled to spousal support that can help your financial situation. When deciding if a spouse is entitled to spousal support benefits, the court will consider various aspects regarding their marriage. The main factor that they will consider is whether or not you have children and if so, who is the primary caretaker for these children. They will also consider your lifestyle before the divorce took place and also your marital standard of living.

When preparing a spousal support case, you will need to include several documents that basically show where and how you spend your money. Some of the documents you will include are:

1. Credit-Card Statements
2. Checking Account Statements
3. Credit Reports
4. Passports
5. Tax Returns
6. Gift Tax Returns

The best thing to do when seeking spousal support is to be prepared. It is important that you protect yourself and your children. Make sure that you have an experienced attorney by your side that is after your best interests.

For more information regarding Von Esch Law Group and their legal services, visit their website and Facebook page!