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Commonlaw and going to case conference

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  • Commonlaw and going to case conference

    Hi,
    I'm back unfortunately.
    When we bought our house 11 years ago, which is for sale right now to divide the property, my family gave me $150k as a gift and her family gave us nothing. Without that money, we could not have bought this house. The money went directly from my family to the lawyers for the down payment.

    Now in her claim, she wants half of the assets of the house and half of the 150K. I understood this to be my money (the gift) and she has no claim to it since we were common law. My lawyer said we should place it as a debt on my answer to her claim and said that he doubts a judge will buy the story but we will try.

    Any views on how the law should treat this or if I should change it to a gift which is what it was. Obviously, it was not gifted to her. The case conference is coming up soon and as it stands, she will not get custody of the kids. I ma living in the house and she has moved out since Oct,2010.

  • #2
    BTW, we are both on title to the house.

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    • #3
      I'm not very much for you, sorry. But I'm interested in knowing that answer as well... if it does not come from a reply post, and you find out on your own, would you please come back and let us know?

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      • #4
        Morally, what do you think of listing it as a 'debt', knowing it was actually a gift and isn't expected to be repaid?

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        • #5
          If you are both on the title then it comes down to how much you each put in and your ability to show it. If the judge won't by the lawyer's debt story, I don't see why you should discredit yourself. Detail how much money you put into the house, document it as much as possible, and detail a fair description of her contributions, and make an offer for paying her the amount of her contributions. If you don't make a fair offer then it could cost you her legal fees if you go to trial.

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          • #6
            Originally posted by blinkandimgone View Post
            Morally, what do you think of listing it as a 'debt', knowing it was actually a gift and isn't expected to be repaid?
            There are no morals here. The money was given to me as a gift and it allowed us to buy the house. The title was in both our names. Now after assaulting me twice and being arrested twice, getting hooked on prescription meds and and not seeing her kids, she wants half of what was never hers, lied on her financial statement (she works for cash), she doesn't want to pay CS and is expecting SS.
            Her family did nothing to help us even though they could have easily. Morals in a separation/divorce? Never knew they existed here.

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            • #7
              That wasn't the question, it certainly is a moral issue if you're lying on your financials and using her lies as justification.

              If it was a gift, list it as such. If it was a loan, list it as a debt. It's pretty black and white.

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              • #8
                If you claim the $150k as debt, the judge will likely want to see proof that it was a loan, and that you've made some payments towards that loan.

                I would call it was it was, a gift to you. When the house sells, that money should go back to you. The increase in the house's equity should be divided in some manner, with the contributions by the parties taken into consideration.

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                • #9
                  Do you have a deed of gift or some sort of receipt stating "Gift" on it?

                  Calling it debt, you would probably have to sign a promissory note to your parents dated as of the date they transferred you the money. It could be a non-interest bearing demand note with no particular terms of repayment, but this is kind of fudging the past.

                  Would an affidavit from your parents stating it was a gift to you and wasn't intended to be part of the matrimonial property?

                  Honestly though, I think you're screwed. Making it debt would be hard to argue and if it was a gift, it would remain your's solely so long as you didn't co-mingle it with the matrimonial assets, which you did when it went to the house.

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                  • #10
                    Originally posted by HammerDad View Post

                    Honestly though, I think you're screwed. Making it debt would be hard to argue and if it was a gift, it would remain your's solely so long as you didn't co-mingle it with the matrimonial assets, which you did when it went to the house.
                    Since they aren't married, this isn't a matrimonial asset. My understanding is what his is his and what's hers is hers.

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                    • #11
                      Originally posted by CSAngel View Post
                      Since they aren't married, this isn't a matrimonial asset. My understanding is what his is his and what's hers is hers.
                      What is matrimonial property under common law and family law is a hair I am not sure I am willing to split. Especially when the property was co-mingled into the matrimonial home.

                      Do I hope he gets his money back because that is what I think is right? Hell yes. But he will have to put forward argument that notwithstanding the money went to the matrimonial home, that it was a gift to him and him alone. The fact that he said it went from his parents to the lawyer, with no stop off in his account in the middle, could be shown as a gift to "them".

                      Best thing to do would be to prepare a gift receipt or affidavit from his parents that state the monies were a gift to him and go from there. Guarantee that it works? Hell no. But it is worth a shot.

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                      • #12
                        There is no matrimonial property under a common law relationship, it isn't a hair, it's black and white.

                        Unjust enrichment claims and trusts are another story, but they have nothing to do with the relationship, they can be made between brother and sister or room-mates. But there are no matrimonial assets in a common law situation, the FLA is absolutely clear on that.

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                        • #13
                          From what I userstand in common law is she can't claim half of that downpayment because that is what you came in with at cohab. That doesn't mean a crooked lawyer won't go after it.

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                          • #14
                            What is the FLA?

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                            • #15
                              FLA=Family Law Act?
                              Do you know the section or do you have a link to this specific area?

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