Whether or not you should move out before filing for divorce depends on your individual situation. There are pros and cons to each option and the right decision varies greatly depending on you particular situation. For example, if you are seeking custody of your children, leaving the home without them will put you in a significant disadvantage when the actual custody proceedings begin. However, If you're experiencing conflict or abuse in the home, moving out may be necessary for your safety and wellbeing. In such cases, you may want to seek a protective order from the court to ensure your safety.
On the other hand again, moving out before filing for divorce could impact your legal rights and obligations related to property division, and spousal support. If you move out and your spouse stays in the marital home for longer than a year, it could be interpreted as abandonment, which could weaken your legal position in the divorce proceedings. It's best to consult with a qualified family law attorney to understand the implications of moving out before filing for divorce in your jurisdiction.
Alright then. The first thing to understand is that the court begins with the idea that your property should be divided "fairly and equitably". (Keep in mind this DOES NOT necessarily mean 50/50). So if you want more than fair, it becomes your job to prove to the court that you deserve more than fair.
You likely need to tell the court in your first paperwork (called a "Petition") that you are claiming one of the 28 different factors that the court can consider in deciding whether to grant a disproportionate division of what you earned during the marriage (a.k.a. "community property"). You will have to plead that one of these things changed the normal presumption of equal division to your favor. You need justify why you should get the lion's share of the property by claiming one or more of the following:
1. Husband was at fault in the breakup of the marriage;
2. You would have received benefits from the continuation of the marriage;
3. He earns much more than you;
4. Your health is worse than his;
5. You got the children so you should get more property to help pay for them;
6. Your children's needs are great;
7. Your education is less than his and/or your prospects for the future are lower;
8. You are less employable than him;
9. There is a lot of marriage debt;
10. The division of property will put more tax burden on you;
11. The differences in you ages is great;
12. The earning power, business opportunities and abilities favor your husband;
13. You need future support;
14. The kind of property to be divided means it would be fair for you to get more;
15. Your husband wasted your community property;
16. You husband doesn't deserve any credit for temporary support he paid you;
17. Your husband used community funds to pay for out of state property;
18. Your husband decreased your community property because he gave unreasonably valuable gifts during the marriage;
19. You can show that your efforts (time, talent, labor) unduly increased your husband's separate property (which the court has no power to divide) and you should be compensated;
20. Your husband gave so much of your community property away to his separate estate or to the children that it was unreasonable and should be compensated;
21. The community estate should be compensated;
22. Your husband is expecting a large inheritance;
23. You should have more money to pay for attorney's fees;
24. You used up your separate property to create community property;
25. The size and nature of your separate property is much less than his;
26. You disproportionately created community property by your own efforts, whereas he did not;
27. He committed fraud (lied) that put you in a worse financial position than you otherwise would be in;
28. His actions amounted to fraud, even if he didn't technically lied that put you in a worse financial position than you otherwise would be in.
These are called to Murff Factors after the original case: Murff v. Murff, 615 S.W.2d696,698 (Tex.1981).
It should be noted that requested a disproportionate share of the community property will eventually require you to prove your allegations. Claiming something is easy. Proving it is another matter. If you want a disproportionate property division, you probably will need an experienced lawyer to help you with this.
My husband claims that the house is his separate property and the court cannot award it to me in the divorce. Is he right?
My husband and I lived together for about a year before we got married. We were looking for a home and decided on one just before our wedding ceremony. To make sure the loan went through, we applied through my husband's credit (which was excellent- mine was not good due to a recent bankruptcy). He got the loan and we financed 100% of the payments. My husband signed an earnest money contract and we went off to our wedding. When we got back, we closed on the house and I co-signed all the paperwork as the wife. Thereafter, we made all the loan payments from our joint account.
Now that we are divorcing, my husband claims that the house is his separate property and the court cannot award it to me in the divorce. Is he right?
As odd as it may sound, and as unfair as it may seem, your husband is probably right.
All property that is possessed during a marriage is presumed by the courts to be community property and subject to division by the courts. However, this presumption can be rebutted if a party can show that the property was acquired before the marriage.
The result is what is called the "Inception of Title" rule, which basically says if you can prove the property became the legal ownership of one party before the marriage, it is considered that party's separate property and cannot be taken from him or her in the divorce.
Normally ownership begins in the moment when you obtained legal title to the property, but oddly, not in the case of real estate. For real estate, the court traces the characterization back to the earnest money contract. This was the holding in Wierzchula v. Wierzchula, a 1981 case.
However, there are several factors here which should give you some solace:
1. It is your husband's burden to overcome the community property presumption. For example, if he can't produce the earnest money contract in court, the judge may declare the property community anyway.
2. Just because the property is characterized as your husband's separate property doesn't mean you loose out on all the mortgage payments that were made from your joint account. You will still have an equitable reimbursement claim on all that money- which the court may award you. You may not get the house itself, but you can get back a lot of the value of it. Make sure that your pleadings ask for this.
3. The Wierzchula case mentions the fact that the house in question was the homestead of the parties, that is, they were living in it. If your house was not a homestead but instead was, or at some point became, a rental or other investment property, you may be entitled to the income generated from that property. The general rule is that rents collected during a marriage, even if from one party's separate property are considered community property. (McElwee v. McElwee, 1995).
So the bottom line is that although your husband can't lose title to the house, under your circumstances, the court is free to reimburse back to the community estate the mortgage payments made on the house, and also any income generated from the house as it deems fair and right. I would also suggest that if you can prove that the house has appreciated in value significantly over the time of the marriage, then you may also be able to convince the court that the appreciation is also community property, subject to right and proper division. However, you would have to investigate this further because in today's depressed real estate market such appreciation is no longer an assured fact.
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Attorney Sean Y. Palmer has over 20 years of legal experience as a Texas Attorney and over 25 years as a Qualified Mediator in civil, family and CPS cases. Palmer practices exclusively in the area Family Law and handles Divorce, Child Custody, Child Support, Adoptions, and other Family Law Litigation cases. He represents clients throughout the greater Houston Galveston area, including: Clear Lake, NASA, Webster, Friendswood, Seabrook, League City, Galveston, Texas City, Dickinson, La Porte, La Marque, Clear Lake Shores, Bacliff, Kemah, Pasadena, Baytown, Deer Park, Harris County, and Galveston County, Texas.