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LegalGems
LegalGems, Lawyer
Category: Family Law
Satisfied Customers: 8950
Experience:  Experienced Family Law Attorney
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My wife and I own a home together in Alabama and have been

Customer Question

My wife and I own a home together in Alabama and have been married for 18 years with two Kids. She told me that she had found a job in Cape Coral Florida and with my permission, I allowed her to go with the kids and I would stay back until the house sold and I found a job., Meantime- When I told her I had found a job, she had asked for a divorce. Pretty crappy deal on my end. Both names are ***** ***** mortgage in Alabama. I filled for divorce first in Alabama as she will have residency in Florida at the end of November. ( 6 Months) Her attorney filed Pendente lite against me in the state of Alabama as this is the jurisdiction where we all lived in including her before moving and the jurisdiction of where the divorce is under- ( Alabama). Nothig has been settled at the moment except temporary child support and Custody as they are attending school in Florida. My fear is her lease is up in Florida at the end of November and what if she buys a home there under her name only, as I am making payments on the home in Alabama - thus keeping good credit for us both. My first question is to you is that legal under Pendenlite or even if Pendenlite had not been ordered. We both own the home in Alabama and if it forecloses, than most likely they will go after us both for deffiecency judgement as the house is upside down. Am I correct on that. Please advise.
Submitted: 1 year ago.
Category: Family Law
Expert:  LegalGems replied 1 year ago.

How long have the children been in Florida?

Customer: replied 1 year ago.
since may 28th 2015
Customer: replied 1 year ago.
is that a key issue?
Expert:  LegalGems replied 1 year ago.

Ok; i wanted to verify jurisdiction. When both spouses are on the mortgage, then they are both jointly and severally liable for the debt, meaning the mortgagor may go after either party for the full outstanding amount (and yes, deficiency judgments if upside down). However, (i'll post this so you can see my reply so far)

Customer: replied 1 year ago.
can she buy a home under pendentlite
Expert:  LegalGems replied 1 year ago.

The family court will divide marital assets and debts between the parties, and the decree will state the parties' respective assets/obligations. Generally they will divide both assets and debts in an "equitable manner" - this means what is fair and just, not necessarily equal. the statute dealing with this is below:

61.075 Equitable distribution of marital assets and liabilities.—

(1) In a proceeding for dissolution of marriage, in addition to all other remedies available to a court to do equity between the parties, or in a proceeding for disposition of assets following a dissolution of marriage by a court which lacked jurisdiction over the absent spouse or lacked jurisdiction to dispose of the assets, the court shall set apart to each spouse that spouse’s nonmarital assets and liabilities, and in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors, including:

(a) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.

(b) The economic circumstances of the parties.

(c) The duration of the marriage.

(d) Any interruption of personal careers or educational opportunities of either party.

(e) The contribution of one spouse to the personal career or educational opportunity of the other spouse.

(f) The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party.

(g) The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties.

(h) The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home.

(i) The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.

(j) Any other factors necessary to do equity and justice between the parties.

(2) If the court awards a cash payment for the purpose of equitable distribution of marital assets, to be paid in full or in installments, the full amount ordered shall vest when the judgment is awarded and the award shall not terminate upon remarriage or death of either party, unless otherwise agreed to by the parties, but shall be treated as a debt owed from the obligor or the obligor’s estate to the obligee or the obligee’s estate, unless otherwise agreed to by the parties.

(3) In any contested dissolution action wherein a stipulation and agreement has not been entered and filed, any distribution of marital assets or marital liabilities shall be supported by factual findings in the judgment or order based on competent substantial evidence with reference to the factors enumerated in subsection (1). The distribution of all marital assets and marital liabilities, whether equal or unequal, shall include specific written findings of fact as to the following:

(a) Clear identification of nonmarital assets and ownership interests;

(b) Identification of marital assets, including the individual valuation of significant assets, and designation of which spouse shall be entitled to each asset;

(c) Identification of the marital liabilities and designation of which spouse shall be responsible for each liability;

(d) Any other findings necessary to advise the parties or the reviewing court of the trial court’s rationale for the distribution of marital assets and allocation of liabilities.

(4) The judgment distributing assets shall have the effect of a duly executed instrument of conveyance, transfer, release, or acquisition which is recorded in the county where the property is located when the judgment, or a certified copy of the judgment, is recorded in the official records of the county in which the property is located.

(5) If the court finds good cause that there should be an interim partial distribution during the pendency of a dissolution action, the court may enter an interim order that shall identify and value the marital and nonmarital assets and liabilities made the subject of the sworn motion, set apart those nonmarital assets and liabilities, and provide for a partial distribution of those marital assets and liabilities. An interim order may be entered at any time after the date the dissolution of marriage is filed and served and before the final distribution of marital and nonmarital assets and marital and nonmarital liabilities.

(a) Such an interim order shall be entered only upon good cause shown and upon sworn motion establishing specific factual basis for the motion. The motion may be filed by either party and shall demonstrate good cause why the matter should not be deferred until the final hearing.

(b) The court shall specifically take into account and give appropriate credit for any partial distribution of marital assets or liabilities in its final allocation of marital assets or liabilities. Further, the court shall make specific findings in any interim order under this section that any partial distribution will not cause inequity or prejudice to either party as to either party’s claims for support or attorney’s fees.

(c) Any interim order partially distributing marital assets or liabilities as provided in this subsection shall be pursuant to and comport with the factors in subsections (1) and (3) as such factors pertain to the assets or liabilities made the subject of the sworn motion.

(d) As used in this subsection, the term “good cause” means extraordinary circumstances that require an interim partial distribution.

(6) As used in this section:(a)1. “Marital assets and liabilities” include:

a. Assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them.

b. The enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both.

c. Interspousal gifts during the marriage.

d. All vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs.

2. All real property held by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset. If, in any case, a party makes a claim to the contrary, the burden of proof shall be on the party asserting the claim that the subject property, or some portion thereof, is nonmarital.

3. All personal property titled jointly by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset. In the event a party makes a claim to the contrary, the burden of proof shall be on the party asserting the claim that the subject property, or some portion thereof, is nonmarital.

4. The burden of proof to overcome the gift presumption shall be by clear and convincing evidence.

(b) “Nonmarital assets and liabilities” include:

1. Assets acquired and liabilities incurred by either party prior to the marriage, and assets acquired and liabilities incurred in exchange for such assets and liabilities;

2. Assets acquired separately by either party by noninterspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets;

3. All income derived from nonmarital assets during the marriage unless the income was treated, used, or relied upon by the parties as a marital asset;

4. Assets and liabilities excluded from marital assets and liabilities by valid written agreement of the parties, and assets acquired and liabilities incurred in exchange for such assets and liabilities; and

5. Any liability incurred by forgery or unauthorized signature of one spouse signing the name of the other spouse. Any such liability shall be a nonmarital liability only of the party having committed the forgery or having affixed the unauthorized signature. In determining an award of attorney’s fees and costs pursuant to s. 61.16, the court may consider forgery or an unauthorized signature by a party and may make a separate award for attorney’s fees and costs occasioned by the forgery or unauthorized signature. This subparagraph does not apply to any forged or unauthorized signature that was subsequently ratified by the other spouse.

(7) The cut-off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage. The date for determining value of assets and the amount of liabilities identified or classified as marital is the date or dates as the judge determines is just and equitable under the circumstances. Different assets may be valued as of different dates, as, in the judge’s discretion, the circumstances require.

(8) All assets acquired and liabilities incurred by either spouse subsequent to the date of the marriage and not specifically established as nonmarital assets or liabilities are presumed to be marital assets and liabilities. Such presumption is overcome by a showing that the assets and liabilities are nonmarital assets and liabilities. The presumption is only for evidentiary purposes in the dissolution proceeding and does not vest title. Title to disputed assets shall vest only by the judgment of a court. This section does not require the joinder of spouses in the conveyance, transfer, or hypothecation of a spouse’s individual property; affect the laws of descent and distribution; or establish community property in this state.

(9) The court may provide for equitable distribution of the marital assets and liabilities without regard to alimony for either party. After the determination of an equitable distribution of the marital assets and liabilities, the court shall consider whether a judgment for alimony shall be made.

(10) To do equity between the parties, the court may, in lieu of or to supplement, facilitate, or effectuate the equitable division of marital assets and liabilities, order a monetary payment in a lump sum or in installments paid over a fixed period of time.

(11) Special equity is abolished. All claims formerly identified as special equity, and all special equity calculations, are abolished and shall be asserted either as a claim for unequal distribution of marital property and resolved by the factors set forth in subsection (1) or as a claim of enhancement in value or appreciation of nonmarital property.

History.—s. 1, ch. 88-98; s. 2, ch. 91-246; s. 3, ch. 93-188; s. 1, ch. 94-204; s. 1, ch. 96-305; s. 1, ch. 2002-244; s. 1, ch. 2008-46.

So based on the above factors, the court will determine the parties' positions.

Expert:  LegalGems replied 1 year ago.

Yes, a pendente lite order is simply an order that is issued during the pendency of the divorce proceedings. For example, temporary support orders. One can get permission to use marital funds to buy property, but the court will generally only allow this if the combined assets are sufficient.

Expert:  LegalGems replied 1 year ago.

Otherwise, they typically wait for a division per the court order, and then the party may purchase, without court permission, whatever they choose to with their portion of the assets.

Customer: replied 1 year ago.
if we havent settled than- she could be in trouble for buying a home at the moment- Know setlement has been reached
Expert:  LegalGems replied 1 year ago.

Is she using separate property funds?

Customer: replied 1 year ago.
she is renting and I am paying our mortgage. Plus temp. child support
Expert:  LegalGems replied 1 year ago.

If marital funds are used, then the court can credit the other party for their portion of marital funds- requiring the party to reimburse the non purchasing party (which can result in requiring a court ordered sale of the property).

Customer: replied 1 year ago.
thank you
Expert:  LegalGems replied 1 year ago.

You are welcome; if you have been satisfied with the information I provided, kindly rate positively as positive customer satisfaction scores allow me to remain in good standing on the site! Thanks and take care.

Expert:  LegalGems replied 1 year ago.

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Here is a link to locate an attorney:
http://apps.americanbar.org/legalservices/findlegalhelp/home.cfm

Should you have further questions please post here to continue our dialogue. Otherwise,

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