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Ask S. Kincaid Your Own Question
S. Kincaid
S. Kincaid, Family Law Attorney
Category: Family Law
Satisfied Customers: 2512
Experience:  I have practiced family law since 1996, focusing on child custody and domestic violence
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Im again asking a question for a friend. She and her husband

Customer Question

I'm again asking a question for a friend. She and her husband are getting a divorce. They're both owners of the house, even though the mortgage is in the husband's name. He filed for divorce and child custody and also requested exclusive possession of the house but he also filed for bankruptcy. Is he entitled to keep the house?
Submitted: 5 years ago.
Category: Family Law
Expert:  S. Kincaid replied 5 years ago.

Steven Kincaid :

Thank you for allowing me to assist you.

Steven Kincaid :

The divorce court must award community property equally between the parties. If the husband were given the house, the court must divide all other assets and debts so that the parties share the assets and debts equally.

Steven Kincaid :

Community property is nearly all property acquired during the marriage, other than gifts or inheritances.

Steven Kincaid :

Also, if the house were purchased with one party's separate property funds, the house could be a separate property asset.

Steven Kincaid :

It is common to give the custodial parent possession of the house (which is not the same as ownership of the house) while the children are under 18. That usually only happens if the custodial parent will be able to pay the mortgage (even if they need child support and alimony to do so.)

Steven Kincaid :

Assuming the house was acquired during the marriage, both parties have an equal interest in it. If the mortgage was acquired during the marriage, both parties owe it under community property rules, although if it goes unpaid, the mortgage holder would not report the default on the wife's credit report.

Steven Kincaid :

So he absolutely does not have an exclusive right to the house and the court will have to decide who gets possession and how the property and liability interests will be divided.

Steven Kincaid :

Is there any other information I can provide for you?