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my question is not an easy one. ok my ex wife puchased a

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my question is not an...
my question is not an easy one.
ok my ex wife puchased a condo prior to the marriage. she had showed me that she was living beyond her means. prior to the marriage we agreed verbaly that I was to remodle and that would be equal to the deposit that she put down for the condo and she would move in with me so that we could rent it out and she claimed bankrupsy. we soon were married and the mortage was put in my name shortly afterwards because I could secure a better loan. after the divorce the judge said that was her sole and seperate property. what I would like is to show some case laws regauding sweat equity. the judge said he didn't know of any laws regauding sweat equity. also while the condo was in my name it gained a conciderable amount of equity(doubled). Im looking for case laws. I will compensate well for case laws that will secure my appeal.
Submitted: 7 years ago.Category: Family Law
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5/1/2010
Family Lawyer: ANDREA,, Lawyer replied 7 years ago
ANDREA,
ANDREA,, Lawyer
Category: Family Law
Satisfied Customers: 12,554
Experience: 25 yrs Family Law, Real Estate & Business Law, Criminal Defense, Immigration, Employment Law
Verified

Good Evening,

 

Thank you for your question

 

You are not going to find anything under "sweat equity" because the term is not used in decisions, so it is not a term you will find when researching the issue.

 

The issue is, "Does separate property become marital property subject to division between the spouses upon dissolution of the marriage"

 

This is broken down into the sub issues:

 

1. What is the result of comingling separate property with marital property

2. What is the result of Appreciation in value of separate property

3. Does a spouse have a right to share in the amount by which separate property appreciated during the marriage

 

California is a community property state which means that upon dissolution of the marriage, all marital assets and marital debts are divided evenly between the parties;

 

The Judge was entirely wrong in his determination of the character of the property. Separate property in the marital context is property belonging to one of the parties which that party brings with them into the marriage. Gifts and inheritances to one of the parties during the marriage are also separate property.

 

Separate property, however, can become marital property if it is comingled with marital property, or if one spouse makes a gift to the other spouse of an interest in the property, i.e. if money from a separate account is deposited after the marriage into an account with joint names; Or, property in one party's name is XXXXX XXXXX deed into joint names. In addition where separate property appreciates in value from the efforts of the non-owner spouse, then the amount by which the property appreciated during the marriage is considered marital property and is subject to equitable distribution.

 

At the very least, you are entitled to share in the appreciated value which has become marital property and which has become subject to equitable distribution because the appreciation resulted from your efforts.

 

I do not know the circumstances surrounding placing your name on the mortgage. The mortgage is a security instrument, collateral, for the repayment of the loan. One must own the property in order to give a mortgage on it. In addition, the obligation to pay a loan results only if the individual's name is XXXXX XXXXX Mortgage Note. Your name would have had to have been put on the deed to the property and the Mortgage Note for the Mortgage to have been of any value to the lender and your wife. Therefore, I think your name is XXXXX XXXXX the deed and the Note.

 

In your situation, I believe that you should be entitled to share in the value of the entire property. I do not know what you mean by, "I will compensate well", but I can say this, legal research is a large undertaking, requires more than just a few hours and is gerally beyond the scope of a Question and Answer forum. The attorneys in the legal category of JustAnswer, myself included, are all licensed practicing attorneys who are not paid anything by JustAnswer; if they receive anything, it is one half of the value placed on the question, but only if the customer accepts. I am saying this so that you, as a customer, can understand why it is economically impossible to take on the task of legal research.

 

 

_____________________________________________________

 

 

That is the only way I get paid

 

Positive Feedback and BONUS are not required but they are a nice way to show you appreciate the expert's time and effort

 

If you have questions in the future, feel free to ask for me by typing your name at the beginning of your question

____________________________________________________

 

ANDREA, JD, LLM

MEMBER, NY & PA BAR

 

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Customer reply replied 7 years ago
I dont want to make you angry but If this is something that you do for a living case laws are very common to you. exaple I know the more madison rule. I dont want to get shot down for lack of case law. by no means do I want to sound demeaning to you. but I need case laws to enter into my motion. and I know that you are a lawyer and I know that the sixty eight (devided by two) is peanuts. but I can't afford a lawyer that is why I'm here. I believe there is a way on this site to add more if I'm completely satisfied with answer. and I will (100.00) but I need case laws that will knock this out of the park.
Family Lawyer: ANDREA,, Lawyer replied 7 years ago

I'm not angry at all; we know the names of landmark cases, but I do not memorize cases for all 50 states because the laws of each state are different. I also agree with you that when a case is being presented, you need the statutes and case law of your state on which to base your argument.

 

I will try and see how long it takes and let you know.

 

However, I need the ansewr to the questions I asked - - -

 

Q. Is your name on the Mortgage Note ?

 

Q. Is your name on the deed (Please see reason for this in my previous Answer)

 

Thank you

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Customer reply replied 7 years ago
yes my name was on the mortage note.

yes my name was on deed.

the condo was sold durring marriage.

judge decided that all money that came from the sale was hers.
Customer reply replied 7 years ago
yes my name was on the mortage note.

yes my name was on deed.

the condo was sold durring marriage.

judge decided that all money that came from the sale was hers.
Family Lawyer: ANDREA,, Lawyer replied 7 years ago

Thank you for your additional information.

 

The Judge was totally wrong!. Did you see what I wrote in my first Answer before I knew your name was on the deed ? That is exactly the example I gave you. Please tell me on what grounds the Judge decided that the condo was not community property - because that is what he would have had to have decided in order to conclude that all the money belonged to your wife and continued to be "separate property"

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Customer reply replied 7 years ago
he said that the condo belonged to her prior to the marriage. and therefore at sell of the property all proceeds belonged to her.
Family Lawyer: ANDREA,, Lawyer replied 7 years ago

It is extremely difficult to get case law from the internet and I do not have have California case law in my office. However, I was able to find 2 things that should prove very helpful.

 

First, the California Family Code addresses this issue in Sections 850 through 853, but Section 850(b) is determinative of your situation.

 

I also found a very recent case, decided April, 2010, which has not been published yet. They do not authorize publication until it has been proofread. The case is In re the Marriage of Gabriel and Kimberly Fornidario, Court of Appeal, Fourth Appellate District, Division Two, E 045156 (Superior Court No. RFLRS(NNN) NNN-NNNN.

 

California Family Code Section 850(b) is decisive in your case. It states that,

 

"...married persons may by...transfer with or without consideration ... Transmute separate property of either spouse to community property"


 

CALIFORNIA FAMILY CODE

 

 

Section 850

.

Subject to Sections 851 to 853, inclusive, married persons may
by
agreement or transfer, with or without consideration, do any of
the following:

(a) Transmute community property to separate property of either
spouse.

(b) Transmute separate property of either spouse to community
property
.

(c) Transmute separate property of one spouse to separate property
of the other spouse.


851. A transmutation is subject to the laws governing fraudulent
transfers.


Section 852 .

(a) A transmutation of real or personal property is not valid
unless made in writing by an express declaration that is made, joined
in, consented to, or accepted by the spouse whose interest in the
property is adversely affected.


(b) A transmutation of real property is not effective as to third
parties without notice thereof unless recorded.


(c) This section does not apply to a gift between the spouses of
clothing, wearing apparel, jewelry, or other tangible articles of a
personal nature that is used solely or principally by the spouse to
whom the gift is made and that is not substantial in value taking
into account the circumstances of the marriage.

(d) Nothing in this section affects the law governing
characterization of property in which separate property and community
property are commingled or otherwise combined.

 

(e) This section does not apply to or affect a transmutation of
property made before January 1, 1985, and the law that would
otherwise be applicable to that transmutation shall continue to
apply.



Section 853.

(a) A statement in a will of the character of property is not
admissible as evidence of a transmutation of the property in a
proceeding commenced before the death of the person who made the
will.


(b) A waiver of a right to a joint and survivor annuity or
survivor's benefits under the federal Retirement Equity Act of 1984
(Public Law 98-397) is not a transmutation of the community property
rights of the person executing the waiver.


(c) A written joinder or written consent to a nonprobate transfer
of community property on death that satisfies Section 852 is a
transmutation and is governed by the law applicable to transmutations
and not by Chapter 2 (commencing with Section 5010) of Part 1 of
Division 5 of the Probate Code.

 

 

In the case of In re the Marriage of Gabriel and Kimberly Fornidario, stands for the proposition that community property can be transmuted to separate property and, therefore, vice versa.

 

In this case, property was being purchased by a husband and wife, but because of the wife's poor credit, they could not get financing. The wife transferred her interest to the husband who secured the necessary financing. When the parties divorced, wife claimed that the property was community property and that she had an interest in it. The lower court held it was the husband's separate property because of the deed the wife executed in favor of her husband.

 

The wife appealed. The Court of Appeal upheld the lower Court's decision, stating that a transfer of an interest in property is valid between husband and wife with or without consideration.

 

Although the case involved a transfer under Section 850(a), the same result would be found under Section 850(b), i.e., an interest in separate property being transferred to the husband, threby transmuting it to community property. You have an even stronger case here because the transfer to you was with consideration since you took on the obligation to pay the mortgage loan.

 

 

_____________________________________________________

 

 

That is the only way I get paid

 

Positive Feedback and BONUS are not required but they are a nice way to show you appreciate the expert's time and effort

 

If you have questions in the future, feel free to ask for me by typing your name at the beginning of your question

____________________________________________________

 

ANDREA, JD, LLM

MEMBER, NY & PA BAR

 

Don't forget to leave positive feedback!

 

 

 

 

ANDREA,
ANDREA,, Lawyer
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Satisfied Customers: 12,554
Experience: 25 yrs Family Law, Real Estate & Business Law, Criminal Defense, Immigration, Employment Law
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