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  • From a new member...

    This thread is from a new memeber who is having difficulties posting a thread at the moment. "at a loss" asked me to post this into a thread for them.


    Originally posted by at a loss
    I would like to directly quote this paragraph found directly with in the website.

    "Ownership Issues
    Who owns what property can play an important role in the division of property. For instance, a home can increase in value tremendously between the time the parties separate, and the time that the property is divided. If the home is in the name of one spouse only, then that spouse gets the entire benefit of the increase in value. By arguing that the other spouse has a constructive trust interest in the home, Behrendt Law Chambers has been successful in getting that increase in value shared with the other spouse
    ."

    I see there may be similarities to my own case. I have been trying to post in the forums to no avail to ask my questions. Could this be posted some how on my behalf? So I am asking for your indulgence while I ask those questions. But first I would like to give you a very brief account of what is happening.

    My soon to be Ex separated in Mar. 2004, when I asked for the divorce due to his infidelity and our inability to reconcile matters. After a huge arguement I left the home with our then 6 yr old daughter, as I was not going to subject us to anymore of his various forms of abuse. In the months to come he first asked that I give him a year to get his act together before proceeding into court. I gave him that time. I have made several attempts to hire a lawyer (as well as money lost to that end) We both now have lawyers and have made it into court. We have no formal separation agreement and now it comes to dividing up the home. (joint ownership) My concerns are that so much time has passed since separation (his lawyer is using the date of separation as the valuation date - Mar 2004) I am not satisfied with that valuation entirely as he remained in the house for the 3 years, I had no benefit of assistance from him in the form of assistance to maintain my own household, spousal, or child support. Child support was grated in Dec 2006. (no arrears were granted) So in a nutshell he has had benefit of the home while I have had none. Using the 2004 value I feel is not accurate as so much time has passed. As well the house has appreciated at least 25-30 thousand in the three years. I know the laws says as of time of separation, Is there any means that I can argue in my favor to be compensated for that time? The lawyers and the courts here dont seem to think that I am entitled to much of anything beyond child support.

    I know after a point in time I am expected to become self sufficient and I do agree with that, but he has made my working full time difficult. I attempted to go back to school to get my HR degree so I may get a better job. Well now I am having difficulty repaying that loan becase the burden of paying for all that my daughter and I need is left entirely up to me. So if any one knows of other cases or laws that may be applied to this situation I would greatly appreciate hearing about them.

    at a loss

  • #2
    at a loss,

    lets get your forum problems ironed out - I noticed your name is not showing up on the members list - Have you completed the registration process (click the link in the email that what sent to you at registration to activate your membership)

    lv

    Comment


    • #3
      At A Loss,

      I understand your frustration at not having support, and further frustration in not being awarded arrears for the time of separation to the date of judgement.

      I do not understand why a court would not grant arrears for CS, I can understand how they may not grant SS as that is a little more complicated and the onise is on you to provide burden of proof as to why you are entitled save for the fact of marriage alone.
      Did the court say why CS arrears were not ordered? Do you think you may have a case for an appeal on the issue of CS arrears?

      As for the increase in property value since your physical separation and his use of the home. I am only offering food for though here and nothing more. I do not intend to cause you any further frustration or to make you feel I am placing blame here.

      Think for a moment if the situation was reversed and you were in the home. Or about all those relationships that go sour and the custodial parent remains in the home.

      For purposes of property separation, courts “always” use the separation date and if by chance the market value of the home goes up between the separation date and the date of equalization, the non-residential parent cannot claim that increase as they are not physically contributing either directly via monetary contribution nor indirectly. I do not think the fact that the person is benefiting from the use of the home factors into the equation. If you were in some way still contributing to the expenses of the house or other expenses to free up his money so he may increase his contribution to the house, then I think you would most certainly have a claim of unjust enrichment or constructive trust interest.

      Does this make sense?
      If you were in the home and he did not provide, let’s say, some/all the mortgage payments, or utility payments etc then you’d claim that he had no vested interest in the increase of value, whether the value went up directly related to your efforts or simply because of market fluctuation. His share would be for the time you both contributed to the house and home (directly or indirectly) and once that ended any change cannot be considered.

      Comment

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