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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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  #1  
Old 06-16-2009, 03:14 PM
sshygirl sshygirl is offline
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Default Tricky financial question

My husband and I separated in Feb /08. He stayed in our house - was supposed to buy me out in June /08. I am now in the process of taking him to court to get the house sold, etc as he reneged on our agreement pre-separation. I have been paying down the debts we accumulated, and he has been paying the mortgage on the house.
Because our separation date was almost 18 months ago, I'm not sure how this will all work out - I had to provide the value of assets and liabilities on the separation date, and then the value of all on the date I filed our court papers. He has not responded, and now I need to do an affadavit and refile papers, so I need to provide new current balances on the debts.

My question is this - when the house is sold and the liabilities are subtracted from the assets, is any extra credit given to the party who has been paying things down, post separation? Would I owe my ex 50% of what he has been paying on the mortgage? And would he then owe me 50% of what I have paid toward our debts?, Then all remaining liabilities subtracted from the assets and split? I'm sorry - my question is not very clear - hopefully someone can figure out what I'm trying to ask!

One last question - I have a person in my life who is talking co-habitating / marriage - I have heard that his income would then be considered as well as mine, for the calculation of child support I have to pay my ex-husband - is that correct?

Thank you for any & all help - it's appreciated.
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Old 06-17-2009, 12:20 AM
AtALoss AtALoss is offline
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I am in a similar predicament and this is how my situation is being handled. But one question first, Do you have a separation agreement that was gone through the lawyers where this is included?

I separated Mar 2004 My ex made up and agreement but it was never gone through lawyers, But in it pretty much everything was split 50/50. fair enough. he even made reference to when he would pay me out. (with in a year) Never did anything. He is still in the house. In 2007 the divorce went to trial. the Judge did not accept his home made agreement as she put it so declared that he pay me 50% based on a current appraised value. (this is what the court will seek firstand if one cannot arrange the financing then it would be a forced sale, providing he still wants to stay there.) Here it is now 2009 and he didnt like the trial decision so he appealed. there is nothing I could do to force the issue of the house because it is in appeal. But my point in that is The appeal is going to be heard in 9 days and it is likely that he will have to go by a 2009 appraisal. Just going to cost him even more as it has increased in value. The trial judge was not very happy that he did nothing about the house at the time and it hurt him then and will likely this time too. So doesnt pay to drag ones heels.
About the debts we divided up ours 50/50 at the time of separation and I took out another loan and paid out my share. this also removed me from the accounts. So any debts are not being taken off the house proceeds. having not done this then it would be taken off if you both can agree to do this. Nice thing about doing so is that you have those paid and dont owe anymore.
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Old 06-17-2009, 01:11 AM
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billm billm is offline
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I find the whole separation of assets and debts should be quite trivial and people make it hard out of greed. How hard is it to divide by 2? Pretty hard when someone wants less than half the debt or more than half the assets. They blame the other for debts, and take credit or entitlement for the assets.

When separating after marriage, you get half of both assets and debts, unless for some reason you both agree to something else for a good reason.

People fall into trouble, my inital paragraph not withstanding, because the assets and debts are not split the actual day someone walks out of the relationship. However adding a time component to the separation should not make it any harder to split the assets and debts. New debts/assets are yours after the separation, debts/assets incurred because of the relationship (mortgages, taxes, etc) but after the split, but before the financial are settled should be split 50/50 also. In the case of a house, it does not matter who stays in the house, it is joint property until finanical settlement.

For AtALoss, what she described is very fair - all things were split and settled , but since the ex did not buy her out of the house, that one item was still jointly owned. She was denied the money for the equity in the house, that she could have used to buy real estate etc and received finanical gain from. So assessing the value of the house now is fair - her money was still in the house, so she gets the benifit of it. The only problem, and this is a very big problem in my opinion, is what would have happened if the house value went DOWN. Would AtALoss or the judge think it was fair that AtALoss get LESS than the original agreed value of the house? Probably not, she would have argued that a deal is a deal and that the ex owned the house and she is not responsible for its loss in value, and the judge probably would have agreed - this is a problem, in that the longer it takes to separate the money, the longer most feel they are entitled to the increases in the equity and are not responsible for the decreases. The real question was - did AtALoss think of the house as hers, or the money owed to her orginally as hers - I think the latter, and in fact the judgement for receiving the gain in equity was not fair to the ex. A fair judgement in this case would be to assess interest and perhaps a penalty for not buying her out in the timeline agreed to.

I realize I am making assumptions in AtALoss's case, but even if my assumptions are not correct, this problem comes up, as has been in the news about splitting assets after time has passed - the date of valuation of an asset should always be clear in any agreement, and can only be set if one of the two parties retains the assets - the valuation date is the date that that party assumes the risk of the value of the asset, and the other assumes the cash value. This can only be done however if the party assuming the risk has the ability to control the risk, such as the selling the asset before the date of actual settlement, but after the date of valuation.

My post does not address sshygirl's post directly, however my point is that I think most people know when a certain asset or debt became no longer a joint item, and until then it should be shared equally, and after that point it should be treated individually - one assumes the asset/debt, the other assumes half its value at that time. Simple, until greed or entitlement gets in the way.

Last edited by billm; 06-17-2009 at 01:27 AM.
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Old 06-17-2009, 10:20 AM
Suchislife Suchislife is offline
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sshygirl,

From personal experience, you cannot know how it will all work out if you leave it in the Judge's hands.

You say your Ex reneged on your agreement pre-separation. This is not surprising to me especially if it was verbal. Obviously it was his intention to remain in the home or he would have put it up for sale by now.

billm's comments are valid.

A suggestion from me is to not nit-pick over each monetary item but rather focus on the end result. You don't say if he is able to buy you out without selling. Re-mortgaging for a higher amount for example. Either way, I would try and reach a fair settlement figure in a dollar amount. It doesn't pay in the long run to haggle over a credit card bill for $3000. And a small pension for one party of $800. And $47 sitting in an emergency savings account on the date of separation....
When all is said and done do you think he owes you $15 000? You owe him $15 000?

For CS purposes your income is used to calculate it. Not your new partners.
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Old 06-17-2009, 11:05 AM
sshygirl sshygirl is offline
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Thank you for sharing your thoughts and experiences. To clarify - my concern over value of debts, etc is due to the fact that I have worked hard to reduce these - my ex has been paying the bare minimum on the mortgage, and often late. There is a disparity of about 7000 between the two amounts paid. However, as Suchislife points out, there is little benefit in worrying about 3500 - I am more concerned about getting the equity out of my house and getting my life started - beginning with providing a home for my children.

Billm - i don't think wanting a fair accounting for payments made by each party while the debts / liabilities are in both names is being greedy - and I do understand the whole concept of 50/50. Somehow doesn't seem right that the ex skates on my effort - but whatever. I just want this done.

Again - thanks for your feedback and opinions folks - this is a whole strange new world, and the "rules" don't make a lot of sense in some areas.

Sshygirl
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Old 06-17-2009, 11:30 AM
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Quote:
Originally Posted by sshygirl View Post
...
Billm - i don't think wanting a fair accounting for payments made by each party while the debts / liabilities are in both names is being greedy...
Neither do I, that was my point!
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Old 06-17-2009, 11:36 AM
AtALoss AtALoss is offline
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Billm - What you have failed to miss is that the Judge rejected the the date of separation going by the circumstances My ex chose not to honour the agreement based on the factors and as well that it was not valued properly. Basically the law is the law and I am entitled to 50%. Where things get screwed up is when one gets greedy. You have made this assumption about me on many occasions and I feel unfairly so. All I ever asked was it to be settled and fairly. It is my ex that has the problem with settling up not me.

My ex chose to use the purchase price not the value at time of separation. The Judge saw this as well. So she chose to reject it and claim a current valuation to use for the split. Again he has delayed it. Not by my choice but he made that choice despite the Judge warning him to settle it now.

You are right that settling up this stuff is simple but when one, my ex in this case choses to lie frequently and play games that is when things get screwed up.
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