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Samuel II
Samuel II, Attorney at Law
Category: Family Law
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Experience:  General practice of law with emphasis in family law.
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I need clarification of something written in my brothers divorce

Resolved Question:

I need clarification of something written in my brothers divorce decree. I want to make sure that I am reading it correctly.

There are two points.


"The parties will continue to cooperate with the realto in showing the home and following the realtor's advice as to any sales price. All of the furniture in the marital home shall be equally divided between the parties with the exception of hot tub which shall belong to the Wife. When the marital home is sold, the equity shall be divided equally between the parties; however, the wife shall receive no less than $4300 from the sale of the home if that is available. If the house does not bring enough pay the wife $4300, the Husband agrees to pay her the difference between $4300 and the actual amount she receives from the sale of the home within 10 days of the closing of the home."

Then listed a couple of points later is this.

"$6000. There was $6000 made available for the valuation of the Husbands business which was paid to the Wife's attorney. $2500 has been given to Marcus Hodge as a retainer on that valuation. The Wife will attempt to retrieve the funds from Marcus Hodge and therefore have a total of $6000 in possession of her attorney. The Wife shall receive $1700 of those funds immediately on approval of the agreement to be used for the child's tuition. The balance will be given to Dianne Allison (this is our mother who fronted the money) to keep until the marital home sells. If there is not sufficient equity from the sale of the marital home to provide the Wife $4300, these funds may be used to pay the amount due to the wife. If there is enough money from the sale that the Wife will receive $4300, Dianne Allison shall be entitled to the $4300 within 30 days of the date of the Court Order setting the date of the sale."

At this point the house has been foreclosed on. The ex wife is saying that my brother pay her $4300. However, if I am reading the decree correctly, $2500 of that money was to be retrieved from when she retained someone to value my brother's business. This valuation was never performed, but the accountant refused to refund the retainer. So it looks to me as though she is only entitled to $1800.

Am I reading this correctly??
Submitted: 1 year ago.
Category: Family Law
Expert:  Samuel II replied 1 year ago.

Hi

The wife is entitled to No less than 4300 regardless of how it is paid.

The point you are trying to make is not accurate because it reads these funds "MAY" be used to pay the amount due to the wife.

It appears from what I am reading, the $2500 was in addition to the $4300 which it is clear the wife shall recieve no less.

In your statement it says

"the wife SHALL receive no less than..."

The operative word is "shall" Meaning must

The word "May" meaning an option.

There is no option that the wife "SHALL" recieve NO less than the $4300.

Please note that if you need more information, you can use the Reply to Expert to Continue the Conversation. Otherwise, I would appreciate positive ratings so that I get credit for my time and information. This will NOT close your question. It will remain active for future follow ups.

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Thank you

Customer: replied 1 year ago.

It read the wife shall receive "no less" than $4300 from the sale of the home. This was a point designated for if the home is sold.

 

However, the wife wanted the husbands business account valued. Court ordered he give $6000 to do this. He didnt have the money, so my mother fronted the money. If the house was foreclosed on, the $4300 would come from this 6000 that was being held by her attorney.

 

6000 was given in a trust to the attorney. $2500 paid as retainer. Then it was decided not to perform valuation. (This was decided by the wife). She was supposed to get this money back from accountant.

Doesnt say that wife shall get no less if house is foreclosed on.

 

And I agree, she gets the $4300. If she gets a refund from the accountant, its hers.

 

Expert:  Samuel II replied 1 year ago.
Hi

A foreclosure certainly is not a sale. And there is no profit from a "sale" - as matter of fact there could very well now be a "deficiency" that will have to be shared by the husband and wife.

You can argue that she is not entitled to any proceeds because there is no sale. I misunderstood your question as to what you were originally asking.

Please note that if you need more information, you can use the Reply to Expert to Continue the Conversation. Otherwise, I would appreciate positive ratings so that I get credit for my time and information. This will NOT close your question. It will remain active for future follow ups.

If you cannot see where to Rate me, please let me know so I can report it to the administrators of the site.

Thank you
Samuel II, Attorney at Law
Category: Family Law
Satisfied Customers: 21432
Experience: General practice of law with emphasis in family law.
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