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Ely
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 102601
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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My ex and I were officially divorced as of December 2016. We

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My ex and I were officially divorced as of December 2016. We had some property that had to be sold. Ine of my questions is about dividing up the proceeds from the sale of our rental property. Iur divorce decree states that we are equally responsible for any profit or loss. If deposits and rent proration are to be paid back in closing and my ex husband received the deposits and rent previously from the tenants, am I responsible for paying back half of these amounts or is he responsible for repaying the deposits and rent?
JA: Because family law varies from place to place, can you tell me what state this is in?
Customer: I am in Kansas
JA: Has anything been filed or reported?
Customer: We have a divorce decree but we are responsible for dividing the profits from the rental property sale in our own.
JA: Anything else you want the lawyer to know before I connect you?
Customer: I have one other question. Our divorce was finalized. Our rental property generated revenue that my ex kept during the divorce process. The judge said that my ex wasn't required to provide statements showing the revenue because discoveries were closed. Since the divorce I have been able to obtain these documents on my own from the management company that managed our propertues. In our divorce decree, it states that if one of us uncovers an asset we can take the other to court to settle it. My question is, do I have a case? Is the revenue generated from our asset of rental properties considered an asset?

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The Kansas statutory code is not that specific. So for many nuances, the Court will fill in the blanks in the decree. If the decree is not specific, then either party can file a Motion for Clarification and ASK the Court on how the Judge believes that the decree should be applied to the unforeseen situation.

Now, I would have to look at the decree's verbiage. I can tell you right now that the Judge will go off the plain meaning of the verbiage, what the Judge thinks was the parties' intention, AND what the Judge believes to be equitable. So if the verbiage applies only to the SALE of the property, then the tenant costs are not included (arguably). If not, that means the decree is ambiguous, and a clarification is needed.

Either of you can file for clarification. Or, you can agree on terms without getting the court involved - perhaps he will want to avoid more litigation and would agree to a split/cost that he could live with to avoid a clarification hearing.

On a related topic, I would not think that the costs of tenancy would be considered an asset. However any income WOULD BE.

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Customer: replied 2 months ago.
The specific verbage in the divorce decree states the following: "The parties agree that any profits or liabilities resulting from the sale of the rental profits."
I just don't think I should have to pay half of the deposits and rent back when I didn’t receive it in the first place. What do you think?

I agree. The verbiage focuses on the SALE of the rental properties, and not the tenancies. The plain language makes both parties liable for SALE-related losses.

However, if he can force the issue for clarification by filing a clarification/contempt motion and have the Judge decide.

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Customer: replied 2 months ago.
The other issue dealing with asset disclosure....the divorce decree states the following:
"Failure of either party to disclose a marital asset worth more than $1000 will be deemed material and the party that discovers the asset may seek appropriate relief from the Court which can include, bit is not limited to: ***** ***** all attorneys fees and costs to seek the asset and an award of the entire asset."
So would the revenue from the rental properties be considered an asset or income? Do I have a case?

I am afraid that tenant payments are income, not assets.

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Customer: replied 2 months ago.
Do you think I am responsible for paying half of the deposits and rent that my ex received previously? I would think that since he received it, he should have to pay it all back.

No, I do not believe so. The verbiage focuses on the SALE of the rental properties, and not the tenancies. The plain language makes both parties liable for SALE-related losses. But not tenant issues.

But again, because the decree's language is a little ambiguous, he has the right to seek clarification on this from the Court.

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Customer: replied 2 months ago.
Why is it considered income when he already has a full time job. We bought the rental houses to gain revenue from the asset. I would think that if the rental property is considered an asset, then whatever reveunue the asset produces would also be considered an asset.

Income means any money coming in from work, regardless of whether he has a full time job, or not.

Assets is chattel, titled property, and liquid/liquidatable money/stock (not income).

You can try to argue that the income from tenants is considered an assets. I am not sure how strong the claim would be.

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Ely and 4 other Real Estate Law Specialists are ready to help you
Customer: replied 2 months ago.
Thanks so much for all your help.

No problem. Good luck.