Legal Question in Real Estate Law in California
Real estate and divorce
My husband left me. We are in the process of divorce.Two months prior to him leaving, I agreed to his recommendation that we take out a line of equity to pay off our debts. He also bought a brand new car on same equity line. This was premeditated on his part. Ubeknownst to me, the day he left he withdrew 1/2 the remainder of the balance of the eloc and left me the same amount, which I have used up to pay for this enormous debt, and expenses since he makes twice as much as I do. We have two children and he has been paying child support. He has not paid anything on the line of equity at all and has no intention of doing such. For simplication, the value of the house is $500k. The first mortgage is $300k, the equity line is 100K. The unencumbered balance of equity is 100K (remaining equity less the first and eloc). I would like to buy the home, and have qualified. If I am refinancing the full $400k, and he is technically responsible for $50k of the $100k line of equity, would I have to give him any cash equity (the 100k remaining? Or would I still have to give him $50k? He feels he is intitled to $50k.If I don't have to give him any cash equity or I do have to give him some, can you please explain why? Thank you.
2 Answers from Attorneys
Re: Real estate and divorce
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Re: Real estate and divorce
This question should not be answered in isolation from the overall problem of property division in dissolution of marriage.
In a dissolution, each spouse will get either (1) whatever he/she can negotiate, or, failing a negotiated property split, (2) 50% of the community assets and 50% of its liabilities.
The 50% formula doesn't apply to support obligations, either child or spousal. A court can also condition a dissolution upon keeping the family residence unsold for a while, if that is important to the welfare of the couple's children.
So, back to your question. By my analysis, you are a half owner of his new car. He owes half of both mortgages. And, he has liability for half of both mortgages.
Since he left you, he seems to have seized the initiative; he's probably got (or will get) an experienced and hardnosed lawyer.
You need to do the same. With a lesser income, children, and the upset of being left, the last thing you need is to be outfoxed at the property-division game. With property and debts in the half-million range, handling this divorce without your own lawyer is a very bad choice.
On the other hand, I've run into divorce lawyers who are incompetent, some who over-bill, etc., so take your time and find someone who will discuss costs openly and who has the right combination of experience so she/he knows what they're doing but not so much business that your file languishes among 400 other active cases the office is "handling."
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