What Does “Exclusive Use and Possession” mean?

What Does "Exclusive Use and Possession" mean?.

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When Buying A Home Make Sure Your Name Is On Deed

by Robin Roshkind, Esquire, West Palm Beach, Florida

Divorce clients don’t realize that what they do years earlier when the marriage is in the “good times” stage, can have huge ramifications, when, years later, they are facing a divorce that they never imagined would happen.   Take buying a home, for example.

If prior to the wedding a man puts up all the money, takes the mortgage and note in his name only, and purchases a home with his name only on the deed, later, when he marries and the marriage fails, in divorce court, the husband can change the locks, throw the wife out on the street and she then has to fight in divorce court for an interest that is legally hers by virtue of the marriage.  It makes life difficult when a spouse is not named on the deed to a marital home.  

Many spouses who have good credit, put their names on a mortgage and note as a favor for the other spouse, who may have bad credit.  When a divorce occurs, the “good credit spouse” is at a disadvantage if the mortgage and note go into default caused by the other spouse.  That also makes it more difficult to refinance to get your name off the obligations.  “Good credit spouses” oftentimes are lulled into the marriage in the first place just for their good credit.  What happens is many husbands and wives end up getting divorced, with a newly acquired bad credit, and their name attached to an obligation on an asset they no longer have.  If the other spouse cannot qualify for a refinance, the house should be sold, but this doesn’t always happen.  Divorcing couples need to be careful about the language in their marital settlement agreements concerning the marital homes. 

For more information about this or other divorce topics, call one of the divorce lawyers at ROBIN ROSHKIND, P.A. at 561 835 9091 or click on the Firm’s web site at http://www.familylawwpb.com for more information.

 

Working the System! Playing the “Unavailable” Game

by Robin Roshkind, Esquire, West Palm Beach, Florida

In my continuing series on “working the system” in divorce litigation, we already covered name changes, child support, imputation of income and motions for continuances.   Today’s blog concerns scheduling of depositions, hearings, mediations but the divorce lawyer on the other side of your case seems to continually be “unavailable” to do so.

The divorce lawyer who prepares the motion, or notices the hearing, or sets the mediation, has an obligation to coordinate such an event with opposing counsel.   If opposing counsel, for whatever reason, wants to stall the divorce proceedings, he/she may indicate the unavailability for such an event.  This “unavailable” game can be played to the point of frustrating the attorney trying to get things done, and furthermore, to frustrate the divorce process. 

After several attempts to set a divorce proceeding, to no avail, the recourse is a motion to compel the attorney to schedule whatever it is.  This motion will be heard before the divorce court judge.  If the judge senses shenanigans going on, as in intentional delay, there may be sanctions. 

Why would a divorce lawyer play the unavailable game?  One good example is if a child is living with the mother, and the father is challenging that, the lawyer for the mother might want to keep the litigation going awhile, because his client has what she wants, that being the child living with her.   Another example concerns the marital home.  If the husband is living in the marital home, he might not want to rush to sell the house.  He is living there and the longer he can delay, the better for him.  These are just two examples of how delay can work in a party’s favor.  That is why that attorney might play the unavailable game.

It does work, but only to a point.  For more information about this or other divorce topics, call one of the divorce lawyers at ROBIN ROSHKIND, P.A. at 561 835 9091 or click on the Firm’s web site at http://www.familylawwpb.com.

 

Where To Live While Divorcing!

By Robin Roshkind, Esquire, West Palm Beach, Florida

If you are going through a divorce, things can’t be too pleasant around the house, even if the divorce is amicable.  You do have some options as to living arrangements. 

Most lawyers would advise clients to live in the marital home if at all possible.  Divorce means transition for you, your spouse and your kids, so the less changes the better at this critical time.  However, if there is domestic violence or the threat of same, it would be wise to remove yourself from the situation.

If the house is big enough to not run into each other, or if there is a “mother in law” or guest house out back, remove yourself to that part of the home.  If that is not possible, and your name is on the deed to the house, then relocate, even if it is temporary.  You do not lose your rights to the house by moving out. 

If finances allow, rent an apartment or house nearby.  If finances do not allow, stay with a friend, relative or co worker until you can either get to mediation and come up with some agreement with your spouse, or get to a temporary relief hearing, where the judge will either give you possession of the home, or allow the finances to find other housing.  For more information about this or other divorce topics, call one of the divorce lawyers at ROBIN ROSHKIND, P.A. at 561 835 9091 or click on the Firm’s web site at www.familylawwpb.com for more information.

Who Has To Move, Him Or Her?

By Robin Roshkind, Esquire, West Palm Beach, Florida

Many couples going through a divorce  just don’t have the funds for separate residences.  It is cheaper (not easier) to stay under one roof, until the divorce is final and the issue of the marital home is decided by the judge or agreed to by the parties.

For those couples  lucky enough to have assets, or those in two income families, it is easier (not cheaper) to live separately and apart pending divorce proceedings.  So how do couples decide who shall stay and who shall go?

First, you don’t lose your marital rights to the marital residence merely by moving out, if your name is on the deed or on the lease.  The remaining party has no right to change the locks unless by agreement of the parties or court order.

Secondly, if there are children, it is understandable that they are going through enough changes during divorce.  They should remain, if at all possible, in a stable home environment.  So who is going to be the parent who will be or continue to be the major caregiver?    It is that parent who should stay, as it is in the best interests of the children.

On the other hand, there are cases whereby only one of the parties can afford to pay the mortgage, maintenance, insurance and taxes.  That is the party who should stay.  The other should go, with or without children in tow.

In cases where neither party can afford the mortgage or expenses of the marital home,  both should move out and rent the home or keep it as an investment property, or you both agree to list the house for sale and stay until it sells.

Lastly, where a home is in foreclosure or short sale status, you both should work it out to stay, because that is in both  your best interests.

In some cases, both parties want the home or neither husband nor wife wants the home.  Every case is different.  If the spouses cannot agree, the divorce court judge will decide for you both.

 

 

What Does A Quit Claim Deed Do?

By Robin Roshkind, Esquire, West Palm Beach, Florida

In divorce settlement cases, we often use a legal instrument called a quit claim deed to convey real estate between married couples getting a divorce.  The facts are as follows:  Either the husband or the wife decides/agrees to convey his/her interest in the marital home (or any other real estate) to the other party.

For example, let’s just say the husband is going to take a job offer out of state.  He is willing to convey his interest in the marital home , while concurrently, the wife will refinance the mortgage to remove his name from the liability and provide him with a buy out check for his half of the market value of the home.   In this example, the quit claim deed awards the wife the home in its entirety while the concurrent refinancing removes the husband from the debt service and provides cash for his share.

In cases where refinancing is not possible, due to no equity in the home or the wife in this example does not otherwise qualify, then the lawyers will hold the quit claim deed in escrow until such time as there is a refinance.  Quit claim deeds are instruments of conveyance of real estate, and should be recorded in the property records department in the jurisdiction where the property is located. For more information about this or other divorce topics, call one of the divorce lawyers at ROBIN ROSHKIND, P.A. at 561 835 9091 or click on the Firm’s web site at http://www.familylawwpb.com.

 

Refinancing The Home BEFORE The Divorce?!

by Robin Roshkind, Esquire, West Palm Beach, Florida

One of my clients, the Wife, had the most daring request posed to her by her “amicable” Husband late one afternoon recently.  The couple is getting divorced and are participating in settlement negotiations with their respective CPAs and divorce attorneys.  Both the Husband’s name and Wife’s name are on the deed and the mortgage to the marital home which is here in Florida.  Another vacation home is up north in New York’s Hamptons communities. 

In the settlement negotiations, the Husband was to keep the marital home here in Florida in his name only by Wife quit claim deeding the home to him, and the Wife was to keep the vacation home in the Hamptons by him quit claim deeding that home to her.  He actually asked his wife to refinance the marital home WITH HIM, so that he could get the cash out, live there, have the home solely in his name, and pay her over time her equitable distribution from the marital assets!  In other words, her own money!  That takes balls.

Yes, I stopped her!  If she would have done that in the interest of being “amicable”, she would have further encumbered herself (read DEBT) in a property she no longer would have a legal interest in, and he would have the cash!  Then he would pay out over time, her own money. That is why divorcing couples need  divorce lawyers.  For more information call one of the divorce lawyers at ROBIN ROSHKIND, PA at 561 835 9091 or click on the Firm’s web site at http://www.familylawwpb.com.