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Thomas James Daley
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Thomas Daley’s Answers

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  • If my finance takes out a mortgage on a new house (and pays 5% down) before we get married, how is the equity divided after ma?

    If my fiance takes out a mortgage on a new house before marriage and pays, for example, 5% down before we get married, how would the equity be divided upon divorce? Is any equity accrued before marriage his separate property and then the equity a...

    Thomas’s Answer

    See my prior answer regarding converting the home from his separate to community property AFTER marriage.

    If your name is simply added to the deed, then the house is still not community property. It would be joint separate property. If your name is not added to the deed and the house is not converted to community property as I described before, then 100% of the equity goes to him. It will be his separate property so he gets the equity.

    You would have an equitable claim for reimbursement. Assuming your prenup does not change this, his income during the marriage is community property. If he uses his community property income to pay off the loan on the house, then the community can seek reimbursement for the amount by which the principal value of the loan as reduced. For example, if he owes $100,000, makes $40,000 worth of payments, and that has the effect of reducing the loan down to $85,000, then the community can seek $15,000 in reimbursement ($25,000 just goes to heaven).

    HOWEVER, if you live in the house during the marriage, he can claim an equitable offset saying, "Yes, we used community funds to pay on my house, but she has a place to live."

    For those reasons, if the house is not deeded to you or not converted to community property, you will get nothing on divorce, at least from the house.

    These are complex property issues that you need an attorney to help you through.

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  • We've discussed previously that he would pay childcare. Can i ask him to revert to texts sent prior? Can I stop responding?

    After moving into our new apartment my husband decided to leave and move in with another woman. I have tried to come to an agreement on seeing our daughter but unfortunately the both of them will not compromise. The last few times we've made plans...

    Thomas’s Answer

    You need an attorney who can get some temporary orders put in place for you. In temporary orders, the court is likely to order him to pay child support and, depending on your income situation, continue paying your living expenses, either directly or through temporary spousal support (you want temp spousal support instead of direct payment because direct payment of expenses is not enforceable by contempt).

    If he's flashing his new credit or has access to cash that you can identify, the court might order him to pay your attorney's fees. If you have access to credit, you can pay your own attorney's fees and seek reimbursement from the community estate at a final trial.

    Either way, you need someone to stand up for you.

    I'd stop responding to your texts. In the last two weeks, my office has crushed two opposing parties based on their stupid text messages. The cases would have been much more difficult to prove--maybe impossible--without the stupid text messages. He's probably trying to set you up for the same treatment. Don't take the bait.

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  • If my husband uses separate property funds to improve our community property house, what does that mean if we get divorced?

    My husband and I have a pre-nup, and we both have savings accounts that are separate property from before our marriage. He wants to use some of his separate property money to add new windows to our house. Our house is community property. If we get...

    Thomas’s Answer

    For the sake of clarity, his reimbursement claim would be "measured by the enhancement in value" to the home. Tex. Family Code section 3.402(d).

    So if he expended $10,000 on a kitchen redo that enhanced the value of the home by $20,000, he is entitled to a $20,000 reimbursement *claim*. If he expended $10,000 putting up fur walls in his man-cave and that reduced the value of the house, he would no claim. So the question is how much will the value of the house increase with new windows. Probably none. Buyers expect good windows when they purchase a home.

    How will he measure the increase in value? Will he get an appraisal just before the improvements and just afterwards? Will a real estate agent provide an affidavit? (all of that would be hearsay at a trial, so you'd need the appraiser or the agent to testify at trial).

    If he were to make a successful claim, it would work out like this (using hypothetical values):

    Net proceeds from the sale of the house: $100,000
    LESS: Reimbursement to husband: -$20,000
    Proceeds to be divided: $80,000

    Amount to wife: $40,000 (half of $80,000)
    Amount to husband: $40,000 (half of $80,000) + $20,000 (reimbursement for windows)

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  • Will we be able to relocate out of state based on the information stated out of the child custody order we have?

    My husband and I are considering moving out of state with my step daughter and son, we have custody of my step daughter. My husband and her mother were appointed joint managing conservators, him being the custodial parent and her the non custodial...

    Thomas’s Answer

    Your quote from the last paragraph is cut off. It probably continues with the words "(ncp) does not live in (county), Texas or any contiguous county."

    If that's the case AND NCP does not live within the geographic restriction, then you can move.

    If the order reads exactly as you've indicated OR NCP lives within the area of geographic restriction, your smartest option is to modify the parent-child relationship to live the geographic restriction. There is ample legal precedent for why the court should do this. The Texas appeals courts have opined that maintaining a geographic restriction on the residency of a child when no one other than the custodial parent has a right to possession of the child is an overly burdensome restraint on CP's rights.

    You can do what you want . . . but no attorney can advise you to violate a court order no matter the merits. That's why we're going to advise you to modify the order so that you can do what you want within the court's order.

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  • If my finance agrees to make the house that he is purchasing community property in the pre-nup, is that legal?

    My finance may take out a mortgage on a new house and put about 5% down before we marry. He said that we can add a clause to the pre-nup that states that any property acquired between now and the wedding would be community property and that the eq...

    Thomas’s Answer

    NO.

    Section 4.202 of the Texas Family Code says that, "At any time, spouses may agree that all or part of the separate property owned by either or both spouses is converted to community property."

    This is the only way that separate property can be converted to community property in Texas. So, NO, a prenup cannot effectively convert separate to community. The reason is that at the time a prenup is signed, you are not spouses and there is no community estate between the two of you. The community estate only comes into existence after you marry.

    You could agree to convert his separate property house to community property per section 4.202 AFTER marriage in a post-nuptial agreement.

    The problem is that when he purchases the property prior to marriage, it is automatically his separate property. You can only HOPE that he will agree to enter into a section 4.202 agreement with you afterwards.

    What's the hurry? Why not wait until after you're married?

    Good luck!!

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  • Do I need to file a new petition or simply pay the fee and proceed with the process? Also do I need ID to get on the docket?

    I filed a petition for divorce with children along with an affidavit of indigency, which was denied. It has been six months since I originally filed, and five months since my application was denied. I now have the money for the filing fee and ne...

    Thomas’s Answer

    All that was denied was your claim of indigency. Your petition should still be active. You can look for your petition at this web site: http://courts.dallascounty.org/default.aspx.

    To pay your fees, go to the courthouse at 600 Commerce Street. If you park on the south side of the building, there is an entrance that leads straight to the clerk's office after you pass the elevators.

    Good luck!!

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  • I am in process of divorce. I have a vehicle that is in my mothers name and is paid off. Can husband fight for it?

    I am in process of divorce. I have a vehicle that is in my mothers name and is paid off. Only her name appears on the title. I paid for the vehicle during our marriage but I do know vehicle is not legally mine. There is no security of interest on ...

    Thomas’s Answer

    He's going to claim reimbursement for the value of the vehicle. He won't get the vehicle, but he may get a correspondingly higher percentage of the assets from your marriage to compensate him for the use of community income to pay for a "gifted" vehicle.

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  • What is going on? What is next? What should I do? Can I proceed with all this along? Thank you in advance for your advice

    Married on March 2010, Dallas,TX. I move out of state for work on July 2011. Separated since July 2012. Husband file divorce petition(Collin County, TX) Nov. 11/2014. I received doc. and signed on March 2015. Previous agreement in friendly process...

    Thomas’s Answer

    #1: Make sure you have filed an answer in your case. It is very important that you do that. Otherwise, you could end up with a very bad outcome. The streets are filled with people who are effectively "tricked" by attorneys who work for their spouses. Don't be one of them.

    #2: Set your case for trial. If all you want is your personal effects, it will be a 90 minute trial and you'll be on your way. By setting it for trial, you force your spouse to settle with you (because he doesn't want to pay the attorney to go to court).

    I am very familiar with all the judges in Collin County and can assure you that they don't want to be part of any scam being run by your husband's attorney...but they have no idea if you don't get the proper paperwork filed.

    Good luck!!

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  • If my fiance buys a house just before we get married and my name is not on the title is it considered community property?

    My finance may buy a house a few months before we get married for us to move into. My name would not be on the title or the mortgage. Is it still considered community property? What about my belongings inside the house? I know in other states if y...

    Thomas’s Answer

    If the house was purchased prior to marriage, then, based on the inception of title rules, it is is your fiance's separate property house. The only way to get your name on the deed is for your fiance to sign a new deed with your name on it.

    Do not let your fiance do this. If there is a separate property house, then your community income will go to paying off the debt on the SP house. On divorce, the house will belong 100% to him and you will get nothing in the end. (Yes, there are claims for reimbursement, but if you were living in the house, you won't win those claims.)

    Do not sign a prenup unless it favors you. 100% of the time prenups end in disasters. If nothing else, one of you will die before the other and the disaster will ensue at that point, if not much earlier. If your fiance is demanding a pre-nup, have it carefully reviewed by a good family law attorney (who will eventually advise you NOT to sign it).

    Good luck!!

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  • How old does a kid have to be to say who they want to live with

    my kids live with their dad and they want to come live wit me they are 14,13,11 i want to know how olld they have ro be to deceide who they want to live with

    Thomas’s Answer

    If there are custody orders in place (e.g. a child support order or a divorce decree), then (a) the children can express their preference to the judge at the age of 12 (although it is not binding on the judge) or (b) they can move where they want at the age of 18.

    If there are not court orders in place, then they can effectively move wherever they want whenever you OR the other parent say. Once they turn 17--if there is no order in place--they can move where they want as long as they tell you. That's because under the juvenile code, law enforcement does not have the authority to forcibly return a 17 year old as long as the parents know where (s)he is.

    If there are orders in place, you need to consult with a family law attorney to see if there is some legal basis for moving the children.

    Good luck!!

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