Category: Marital Property

Should you buy a house before the divorce is final?

Posted on by Kenneth Levey

Many of us don’t have the option of buying a home during the process of divorce due to financial constraints. Even if you have the resources to afford the down payment, mortgage payments, property taxes, and upkeep, careful thought should still be given to this idea.

Going through a divorce is highly stressful. You likely will experience a wide variety of emotions, including the fear that you won’t have anywhere to live. At the beginning of a divorce, many questions remain unanswered about you and your spouse’s financial future. You can count on one thing: many changes are coming. Most legal, financial, and psychological experts advise that couples who are going through divorce not charge forward with major financial decisions. It just doesn’t make sense.

If you buy a home during the divorce process, you conceivably would be purchasing a house with funds that belong partially to your soon-to-be ex-spouse. If you intend on buying the house in your name alone, title and escrow companies still will require your spouse to attend the closing, sign the documents, and basically give permission for the home to be purchased in your sole name. In fact, many attorneys require the non-purchasing spouse to sign a special agreement to permit the purchase of a home by the purchasing spouse during divorce proceedings.

Granted, during the divorce process, your spouse and you could buy a house and place both the title and/or mortgage in both of your names. This generally is not a good idea for a host of reasons. You first should discuss this with your attorney if your spouse and you are considering doing this.

During the divorce process, “temporary orders” or “temporary restraining orders” (also known as “temporary injunctions”) often are put into place to prevent spouses from spending down assets or incurring new debt. Typically, a temporary order specifically forbids both spouses from using community funds for major purchases without first obtaining the consent of the other spouse (and possibly the involvement of the attorneys). Further, a temporary order typically instructs both spouses not only to spend only what is absolutely necessary to sustain their individual households, but also to notify the other about any expenses that are out of the ordinary, even if “separate funds,” i.e., non-community funds, are used for that expense.

It is also possible that purchasing a home during divorce could ultimately result in financial difficulties for one or both spouses. One spouse might be approved for a loan on a new home based on his or her current income and expenses. However, this doesn’t take into account future debts–the amount of which might be unknown at the time of purchase–such as debts pursuant to final divorce documents, e.g., child support, alimony (referred to as “spousal maintenance” in Washington), a “lump sum” pay-out to the other spouse, etc.

It may make more sense to rent a home temporarily instead of buying one during divorce. While it may be possible to purchase a home while going through the divorce process, it generally is ill-advised and can be problematic–especially buying a home where both spouses are on title and mortgage.

The Levey Law Group recommends that you consult with your attorney and financial advisor to thoroughly address the following: 1) the long-term effects of financial decisions such as home purchases; 2) the tax implications; 3) future projected financial responsibilities; and 4) other factors.

If you have any questions regarding this topic or any other topic related to divorce, please call our office at 253-272-9459 to schedule a consultation.

Fault versus No Fault, and When Fault Matters

Posted on by Kenneth Levey

When a marriage disintegrates, both spouses need closure. For some people, this means that he or she will want a court to declare that the other spouse is at fault for the break-down of the marriage. Unfortunately for these people, Washington is a “no fault” divorce state. This means that a spouse does not need to allege that either person is responsible for the marriage falling apart. Instead, all that must be alleged is that the marriage is irretrievably broken. As a result, adultery, cruelty, drug abuse, or financial infidelity all will not matter in terms of whether a divorce is granted.

Similarly, the issue of fault is not considered in terms of property division. Washington is a community property state, and in general, property that is acquired during the marriage will be divided equally between the two parties. The court will examine several factors when making this division, including but not limited to the type and value of community property, type and value of any separate property, the length of the marriage, and the financial condition of both spouses at the time of the divorce.

Notably absent from this list is fault. One party being a bad spouse does is not on the list of what a court shall or may consider when making a property division order. An exception to this could be if one spouse intentionally dissipates assets. In other words, if one spouse goes on an outrageous spending spree or gives away money in contemplation of filing the divorce, a judge may take that type of behavior into account. However, in such a case, it is not the bad behavior the judge is considering, per se. Rather, it is ensuring a fair property division that is the concern of the court.

Issues of child custody present a slightly different set of facts. Again, a spouse’s infidelity will not factor at all into a court’s determination of who should receive custody or what type of parenting schedule should be arranged. Child support is likewise unaffected by a parent’s poor behavior. If a parent’s “fault”-like behavior is severe, such as drug abuse or domestic violence, then that very well may have an impact on a court’s custody decision. However, as with property division, it is not the fact that a spouse was a bad spouse that is being considered, but actually how a parent’s behavior may impact a child’s best interest. In short, being a bad spouse is not being used as a punitive measure, although the behavior may become relevant in other ways.

We are highly experienced in family law matters and can help you understand how your behavior and your spouse’s behavior may impact your divorce case. Call us today at (253) 272-9459 to talk about your divorce and your future.

Bankruptcy and Divorce

Posted on by Kenneth Levey

Divorce is a stressful time, especially when it comes to finances.  Couples have carefully crafted a life and planned for a future together, often taking into account two incomes when considering how bills will be paid or purchases to make.  When spouses separate or file for divorce, they must come up with new solutions to pay their debts and make ends meet while living on just one income.  In some circumstances, one of the spouses may decide after the divorce that the debts and support obligations are simply too much, and may seek to have their debts discharged by filing for bankruptcy.

Bankruptcy and divorce often intersect, but they are two extremely different proceedings.  Bankruptcy is exceedingly complex, and it is common for bankruptcy attorneys to focus their practice on that sole area of law.  Moreover, bankruptcy is filed in federal court, while a divorce or other family law case is filed in state court.  Declaring bankruptcy allows for the person filing to be relieved of his or her obligation to repay some or all of his or her debts.  This can become complicated if the debts that a former spouse seeks to discharge are related to or discussed in a final divorce decree.

First and foremost, payments that are characterized in final divorce orders as either spousal support or child support are not dischargeable in bankruptcy.  This means that even if your former spouse owes you a lump sum for spousal support or has fallen behind in payments, he or she cannot get out of repaying that money simply by filing for bankruptcy.  Moreover, the former spouse must continue to make support payments even during the bankruptcy case.  This is different than other debts, as the spouse will be relieved of making payments on most other debts while the case is pending. 

If common debts held at the time of the divorce existed, then they are likely divided in the final divorce decree.  If your spouse was told to continue to make payments on a joint debt and seeks to have the debt discharged in bankruptcy, this could become problematic.  The creditors could then pursue you for the remainder of the debt.  For example, if your spouse was ordered to pay a joint credit card debt and seeks to discharge the debt in bankruptcy, the credit card company could then potentially come after you for that debt. 

Divorce decrees include specific language, called a “hold harmless clause,” that might allow you to ask the bankruptcy court for some relief in this situation.  It is essential to discuss this type of issue carefully with your divorce attorney.

Bankruptcy and divorce interact in complex ways, and you need an experienced attorney to help you through your bankruptcy divorce issues.  Contact us today at (253) 272-9459 to make an appointment and discuss your future.

LGBT Divorce and How Issues are Different and Similar

Posted on by Kenneth Levey

On June 26, 2015, the Supreme Court of the United States handed down the landmark decision of Obergefell v. Hodges, which determined that the Fourteenth Amendment required states to recognize same-sex marriages.  This means that no state may deny a same-sex couple the right to marry.  Along with same-sex marriage, however, also comes same-sex divorce.  Same-sex divorces have some of the same issues as heterosexual marriages, but have some of their own unique issues as well.

The Washington Registered Domestic Partnership Expansion Bill became law in December 2009.  Under this law, any same-sex couple that was in a registered domestic partnership as of June 30, 2014, had their partnership automatically converted to a civil marriage.  Having a civil marriage or domestic partnership means that same-sex couples are afforded most of the same rights and privileges as heterosexual couples.  Same-sex couples divorcing will have the same right and responsibilities as other couples.  That is, they are entitled to distribution of property, division of debts, and possibly spousal support.  However, under federal law they may not necessarily be able to enjoy the same privileges as other couples.  For example, spousal support payments may not be tax deductible in federal income taxes.

It is common for same-sex couples to share children.  Where the non-biological parent (or parents) have adopted the child or children, then the custody case will look identical to that of other couples.  The complications arise where even though the couple have been residing together and acting as parents together, one of the parents has not completed an adoption or other formal procedure to recognize that parent as a legal parent of the child.  Washington recognizes “de facto parents” which means that even though one parent has not formally adopted a child, he or she may still be granted full parental rights.  In order to be deemed a de facto parent, the requesting person must fulfill very specific requirements that are set out in Washington case law.  These cases are highly fact specific and require an experienced attorney.  Once a requesting person has been established as a de facto parent, then he or she has the same right to request custody or visitation as the other parent.

Every family is unique, and we have experience in helping all types of clients to create a future that helps fit his or her needs.  If you are facing a divorce or separation, call us today at (253) 272-9459 to discuss your case and your goals.

Family Pets and Divorce

Posted on by Kenneth Levey

Pet ownership is exceedingly common in the United states with nearly 80 million households having dogs, cats, or other pets. Many people think of their pets as members of the family, so if the family is going to be divided by divorce, the issue of what will happen to the family pet becomes a central issue. Washington law considers pets to be personal property, and the decision on what will happen to the pet after a divorce will be decided accordingly.

Because pets occupy such a special place in a family, clients often believe that a court should make a determination for a pet in a similar manner to how a court decides child custody. While most judges are not oblivious to the fact that pets have attachments and emotions, they generally will not create a “custody order” for a pet absent an agreement of the spouses. A pet is property, and a judge will make a decision on who will be awarded the pet. Each spouse will need to present evidence as to the pet’s history and who has generally been responsible for caring for the pet. Evidence such as who takes the pet for medical care, who takes the pet for walks, who grooms the pet, and other similar issues will be presented for the judge to decide who has the superior claim to the animal. Courts are often sensitive to whether the parties have children and if the children share a bond with the animal.

Although courts generally will not create a custody agreement for an animal, that does not mean that spouses cannot work out their own agreement. It is possible for divorcing parties to negotiate an agreement that provides both of them with continued access to the animal. If the spouses wish to have this type of arrangement, they need to also consider ongoing and future issues, such as the cost of veterinary care. Just as in custody cases, the parties may also need to preemptively address the possibility of one of the spouses moving away. Special attention should also be given to the age of your pet and the impact that moving will have on him or her. If one of the spouses is remaining in the house, an elderly pet may be more comfortable remaining in familiar surroundings. In short, you and your spouse should carefully think about your pet and his or her needs when crafting such an agreement.

Pets are often members of the family, and deciding what will happen to them in a divorce is a difficult decision. We have experience in helping our clients to through this complicated issue. Contact our team today at (253) 272-9459 to discuss your pet and its future in your divorce.