Threat - occupational rent

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ark_justice

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Hello,

My wife just submitted to me a document of our agree assets, but attached an additional document which I was not aware was coming.

2 years ago we agree she would pay $2,500 in spousal and child support. She paid that for 3 months and then reduced the payment to $1,450 and has paid that ever since. I tried arguing it with her at the time, but she claims she has no money (makes of $5,200 a month), and that it was because of taxes. I was told by my lawyer that we will apply for retroactive child support and it will all balance out in the end.

Today the document attached to our asset list noted that she has paid $1,450 for 2 years, and will not be paying a dime more. Threatening that if I go after her for any money, she will include a claim occupational rent.

She left 3 years ago, of her own accord, and moved in with her sister. Never have I changed the locks, or kicked her out, and we have tried to be civil in her coming to the house to retrieve things she needed. She lived at her sister’s rent free, house sitting, and doing work around the house. She also has been living on and off at her boyfriends new home, while still claiming her residence was her sisters.

How can she claim occupational rent? She wasn’t paying rent and has had no expenses. She owes me $25,000 in retro spousal support!

Any thoughts?
 
ark_justice said:
Today the document attached to our asset list noted that she has paid $1,450 for 2 years, and will not be paying a dime more. Threatening that if I go after her for any money, she will include a claim occupational rent.
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Empty threat. I have rarely seen occupational rent ordered, and even if it is it is unlikely to exceed her arrears.
 
She wasn’t paying rent and has had no expenses.
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Irrelevant. Occupational rent is paid based on your continued enjoyment of her assets.

If you are carrying the property (paying mortgage, etc) then you may wish to argue that this is in lieu of occupational rent.

Otherwise, people often wash it against a sum of arrears owing.
 
I think you have missed what rent is being claimed. It would seem that she left your home, you remained so her claim would be for 1/2 of what your home is worth in terms of rent - if it was rented out. There are many difficult hurdles to even being able to make this claim - it looks so much like a bluff on your ex's part...... but this has nothing to do with CS amounts or your ex's living conditions.
 
OrleansLawyer said:
Irrelevant. Occupational rent is paid based on your continued enjoyment of her assets.

If you are carrying the property (paying mortgage, etc) then you may wish to argue that this is in lieu of occupational rent.

Otherwise, people often wash it against a sum of arrears owing.
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We'll I just got 2 different answers...

The house is paid off, which means I am enjoying only half of her assets.

How is this fair? She owes spousal because she makes significantly more income then I, and I have the cost of raising children in house (half her asset), so not only have I not be getting the full spousal/child, she can just claim it as occupational rent? huh?

So the court determines that her cost of living is nothing, but she is entitled to rent? How much is occupational rent? It seems like it is designed to completely cancel out $25,000 I have been out.

So all I can go after her for is the back taxes and insurance on the house. This seems a little once sided.
 
ddol1 said:
I think you have missed what rent is being claimed. It would seem that she left your home, you remained so her claim would be for 1/2 of what your home is worth in terms of rent - if it was rented out. There are many difficult hurdles to even being able to make this claim - it looks so much like a bluff on your ex's part...... but this has nothing to do with CS amounts or your ex's living conditions.
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How does that make sense? I am paying all of the hydro, all of the heating, and yet now I owe her half of what the house is worth rented??

It is not possible to rent a room out of my house.

How does this help the person who is left with the burden of the estate?

I agreed to even meet her in middle of the amount that the house was worth, but if this is the case, I am not buying her out of it for a dime more than my appraisal. I can not afford to have to cut a loss of $25,000 for occupation rent, and $25,000 more than my house appraisal.
 
So you have not equalized your assets?

If not she is claiming you pay her rent to live in half of her house.
 
as the other posts indicated - it is a claim against the use of her half of the asset (1/2 the rent should the house be rented out - you would get the other half) but all the costs to maintain the property is a counter claim, your costs to carry the property should be shared 50/50 as well. I have not mentioned the children and I do not know how children impact this step. But if you keep the points simple: You got to live in the house, 1/2 of which belongs to your ex, and you have not given her anything for the continued use of her asset, you could have both elected to put the property up for sale on week one.

oddly as you mentioned rent a room out - right or wrong; the income from rent will be listed under your total income to be used for the determination of any future support - not against her claim.
 
FB_ said:
So you have not equalized your assets?

If not she is claiming you pay her rent to live in half of her house.
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So what you are saying is, if I had left the house and taken the kids, she would not only have to pay spousal/child, but also rent for living in my half of the house?

Why would anyone stay in the matrimonial home, if during separation they would have to pay rent. They are already down the income from 1 person leaving. It really seems like a poorly designed system.

So at this point I should just abandon the house and live temporarily else where until the agreement is signed. Otherwise I am going to owe her rent.
 
FB_ said:
I found this which is a brief overview.

http://www.lesaonline.org/samples/33_52_04_p1.pdf
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My other issue is in the past when I was on vacation she occupied the house again, and a year ago we divided up the physical assets of the house and she removed her's from the house (including furniture, electronics etc.) The only asset left that I am "enjoying" is the house itself.


Again, at this point I should just abandon the house and live temporarily else where until the agreement is signed. Otherwise I am going to continually owe her rent.
 
ark_justice said:
My other issue is in the past when I was on vacation she occupied the house again, and a year ago we divided up the physical assets of the house and she removed her's from the house (including furniture, electronics etc.) The only asset left that I am "enjoying" is the house itself.


Again, at this point I should just abandon the house and live temporarily else where until the agreement is signed. Otherwise I am going to continually owe her rent.
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That is probably a question for a lawyer.

You could buy her out of her half or why don't you just sell it?

This is one reason, although a small one, I have not left the matrimonial home. It's pretty much the only asset of our marriage and I wanted to ensure it remains in good shape until such time I can get my fair share.
 
What you should've done was, when the assets were split up (ie. equalization) was paid her the half in the equity of the house.

You've had enjoyment of the whole house during this period, while only being entitled to half. You are also continuing the issue by not buying her out of her half of the house.

So either you:

a) continue to rack up occupational rent wait to buy her out (for some unknown reason); or

b) offer to buy her out and pay her 1/2 of the equity in the house at the current FMV. That would eliminate any future occupational rent issues, but wouldn't likely erase the existing amounts.

So lets say the arrears she owes you = the occupational rent you owe her.

You buy her out. Your rent obligation ceases. Her support obligation does not cease.

You are better off getting equalization done sooner than later.....as you are learning now...
 
HammerDad said:
What you should've done was, when the assets were split up (ie. equalization) was paid her the half in the equity of the house.

You've had enjoyment of the whole house during this period, while only being entitled to half. You are also continuing the issue by not buying her out of her half of the house.

So either you:

a) continue to rack up occupational rent wait to buy her out (for some unknown reason); or

b) offer to buy her out and pay her 1/2 of the equity in the house at the current FMV. That would eliminate any future occupational rent issues, but wouldn't likely erase the existing amounts.

So lets say the arrears she owes you = the occupational rent you owe her.

You buy her out. Your rent obligation ceases. Her support obligation does not cease.

You are better off getting equalization done sooner than later.....as you are learning now...
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The whole hold up has been her. She wanted to settle this as much as possible without using our lawyers, and has taken forever to do things. We are on our way of getting things sorted out, and me buying her out next month, when she brought this up.



I have every intention of buying her out, but I have not been staying here for 2 years by choice. Things keep getting delayed (apparently) to her benefit.
 
Things keep getting delayed (apparently) to her benefit.
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You may wish to look at the cost of renting an equivalent house, to see how much occupational rent may be.

I have not been staying here for 2 years by choice.
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The other choice was to leave the house and pay rent somewhere else, without the benefit of owning half of the property.
 
OrleansLawyer said:
You may wish to look at the cost of renting an equivalent house, to see how much occupational rent may be.


The other choice was to leave the house and pay rent somewhere else, without the benefit of owning half of the property.
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If anyone (including my lawyer) had mentioned that I would have to pay my wife rent for her leaving the house, I would have packed up the kids and moved in with my mother. That way she can continue to pay child support and spousal and I would not owe her rent.

In exchange I have been paying all the bills, and now must pay my wife for using her half of the house. Seems like a poorly conceived system.

Who in their right mind would actually stay in the house, knowing they will be forced to pay for their spouse deciding they don't want to live there. BS. And don't tell me we should have sold, or I bought out right away. Who does that when the wife just decides to walk out the door.
 
Occupational rent if calculated fairly should consider these issues:

  1. She is only half owner of the house; you are the other owner.
  2. If the house were rented out to a third party, you would split the received rent.
  3. She should therefore only be entitled to, at most, half of the market rate for a similar home.
  4. As a joint owner receiving rent, she is also jointly responsible for maintainence costs, capital repairs, taxes, and insurance. If there is an outstanding mortgage, she is still responsible for half the monthly payments.
  5. Utilities should be paid by the occupant, however in such a case where utilities are not included, rent should be at the low end of market rates.
Calculate taxes, insurance, and any maintainence and repairs that would not be expected of a tenant; that is, do not include cleaning supplies but do include paint, stucco, hardware, large applicance repairs, furnace maintanence. Generally calculate the amount spent per year, and pro-rate it for the month, and then compare that to the fair market rent. IMHO it would also be reasonable to pro-rate long term capital costs like roof replacement, depreciation on appliances, etc. If the home is being treated like a commercial property, this would be normal. A proportion of rent paid should be dedicated to a capital costs reserve. Finally, any rent paid to the ex should be included in her taxable income.
 
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