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Ask Samuel II Your Own Question

Samuel II
Samuel II, Attorney at Law
Category: Family Law
Satisfied Customers: 21895
Experience:  General practice of law with emphasis in family law.
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Married a year and half ago. Both have houses purchased before

Customer Question

Married a year and half ago. Both have houses purchased before marriage. One house has equity the other doesn't. During the marriage, both quit claim deeded the properties to each other in tenancy by the entirities. Now they are divorcing. Will the spouse without equity have a right to his share of equity from the other spouse who owned with equity?
Submitted: 1 year ago.
Category: Family Law
Expert:  Samuel II replied 1 year ago.

Samuel-II :

Hi

Samuel-II :

The answer is yes - As Tenants by the Entities the property is still divided as marital as governed by Florida marital property distribution statutes

Samuel-II :

 


If you have other questions, please post them here and I will provide you information. Otherwise, I would appreciate you taking time to rate this service "good to excellent" so that I may get credit for my time and information. Rating will not close your question. You will always be able to review it. It will only close a Chat - Thank you and good luck

Customer:

The couple has a baby, 9 months old, the equity is in her name. The claimant to that equity will be him. The fact of the baby will make any substantial difference?

Customer:

to him claiming his share of equity?

Customer:

and getting a judge to rule in his favor?

Customer:

why do you get me into a chat if you are not going to chat?

Samuel-II :

I am here

Samuel-II :

Sometimes, the chat responses do not show up immediately.

Samuel-II :

Once they have placed each other on the title in that capacity it means they have Joint Ownership

Samuel-II :

The child is a separate issue

Samuel-II :

She can say she wants to buy the Father's share of the property which is based on an appraisal at today's market value

Samuel-II :

Whoever gets residential custody of the child can argue the child needs a place to live - until age 18 and if they move before than the property at that time would be split as marital but the market value may be increased and so the share to buy out is going to be higher

Customer:

He is seeking his share, alleging, she married him for the green card. That would mean the house would have to be sold and proceeds distributed. he has been making all payments (taxes, HOA, utilities, parking, medical and car insurance, most groceries for the time of the marriage). Can a judge allege that selling house would be traumatic to child and forbid the sale?

Samuel-II :

Yes. The Mother can make that argument

Samuel-II :

But at 9 months old, it is not going to be easy to show that the child has become accustomed to that home

Customer:

her share is about 100K, enough to buy another home, would this argument be strong enough to have a judge side with him?

Samuel-II :

And that is what she will have to establish - that the child has become so accustomed to that home, neighborhood, schools, friends, etc.

Samuel-II :

And yes, if her share is enough to buy another home the judge may very well say it must be sold and proceeds split

Samuel-II :

If the child was say 9 years old and had been going to school, etc then the Mother might have a better chance at such an argument.

Customer:

can one of the parents, against the wishes of the other one, have the mother in law precluded from seeing the child?

Samuel-II :

No likely. There are Grandparent rights

Samuel-II :

So unless it can be proved that the Grandparent has harmed the child, it will be unlikely they can keep those visitations from happening

Samuel-II :

As a matter of fact, a grandparent can actually get their own attorney and enjoin into the custody suit to ensure their visits are marked in the Order

Customer:

Is there a way to get equally shared custody of the child, 50/50 of the time?

Customer:

will it be hard to get?

Samuel-II :

Sure. All they have to do is request it. And as long as both parents can show they are in the good and best interests of the child it would be granted

Samuel-II :

Not hard to get at all. Courts actually prefer it

Customer:

Now they are still living together, but is becoming very difficult. If he lives the house and rents, will it somehow weaken his claim to the equity and custody?

Samuel-II :

Both parties will have to provide information on where the child will live, who will care for the child while the parent is working, etc. Just show what is in the best interests of the child

Samuel-II :

No. I suggest that his claim of equity and custody will not be affected by that

Customer:

correction: if he leaves....

Samuel-II :

Nor if he leaves, as long as there is an understanding that he is not abandoning the family. I suggest that a written separation agreement is the best route

Customer:

let's say he says to her, he will live and he wants the child x amount of time in his new place, and she refuses. He then without violence, but against her will, simply takes the child to his place and spends the weekend there and returns it on Monday morning. Will it be any violation of anything?

Customer:

.....will leave....

Customer:

This scenario is before a court ruling has been established

Samuel-II :

She does not have to do anything unless there is a court order

Samuel-II :

And if he takes the child, and there is no court ordered custody, he can keep the child

Samuel-II :

and does not have to return the child.

Samuel-II :

Both parents have equal rights until there is a court order stating otherwise

Samuel-II :

And so, that is why I suggest it is always best to have a written Separation Agreement - stating when the child will be with each parent, etc

Customer:

what do you mean he does't have to return the child. Can he keep it indefinitely until there is a court order?

Customer:

I agree i\on the written separation agreement, but things are going in a way that there may not be such agreement without court intervention

Samuel-II :

Not that it is enforceable by a police officer, because they will not get invovled until there is a court order, but it give some semblance of wanting to behave in the best interest of the child

Samuel-II :

Yes. Just as she does not have to allow him in for visits or any visits wiithout a court order he has the same rights

Customer:

Not that IT is enforceable by a police officer, because they will not get invovled until there is a court order, but IT give some semblance of wanting to behave in the best interest of the child

Samuel-II :

So if he takes the child, he does not have to return the child unless there is a court order

Customer:

What did you mean by IT?

Samuel-II :

It = Separation Agreement by the parties

Samuel-II :

there is no enforcement of anything but a Court Order

Customer:

If he records their conversations without her knowledge, or her phone conversations, or her emails and the recorded info shows her paradigm and intentions are not best for the child, even though she may not seem to be aware of it, is there a way he can use that in court against her?

Samuel-II :

If he is a part of the conversation, then it can be recorded and used in court

Samuel-II :

He cannot have a recording of her conversation with someone else that he was not involved in

Samuel-II :

That would be eavesdropping.

Samuel-II :

But if he has a recording of a conversation of him and her, it is legal and can be used

Samuel-II :

Also the same with any emails

Samuel-II :

However, keep in mind, that courts are wise and they can tell when someone is saying something in the heat of a moment

Samuel-II :

and so she needs to realize that with her attorney they can show that whatever she said was not intentional - only she was hurting at the time

Samuel-II :

Or something to that affect

Samuel II, Attorney at Law
Category: Family Law
Satisfied Customers: 21895
Experience: General practice of law with emphasis in family law.
Samuel II and other Family Law Specialists are ready to help you

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