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Post-divorce hearing, can a judge reverse the marital home due to other parent having the children the majority of time?

Colorado Springs, CO |

I divorced last year in May, my ex got the house and we were to have the children 50/50. Since June I have had them 60% and him 40%, and he has not refinanced yet, I am still on the mortgage. There are pending neglect charges against him with the children. Can I request the marital home in the best interest of the children?

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Attorney answers 4


You need to separate the parenting issues from the property issues. If you ex was awarded the house, you are not very likely to get it back. If he was ordered to refinance and has failed to do so, he might be ordered to sell the house. If you came in with an offer to purchase, you could get it that way. This is a complex issue and you would serve yourself well by consulting with a skilled family law attorney.


As Mr. Littman noted, property division issues and child issues are separate matters. Property division orders will not be revisited, except under extraordinary circumstances, and who exercises what parenting time is not one of those circumstances. This answer is provided as general information about a legal issue, is not legal advice specific to a particular case, and does not create a lawyer-client relationship with the person asking the question.


Highly doubtful. these are separate issues. You're describing possible contempt/enforcement actions, which are a separate remedy from parenting time issues. You may also want to consider whether to formalize the parenting time circumstances; as this can affect your support, as well.


The answer: it depends. The first question to ask is whether your final orders were the result of a trial (a Judge's ruling) or a contract (agreement) between you and your former spouse. Regardless, the language of this agreement should articulate the purpose of this arrangement. If not, you should be aware that there could be issues with you remaining on the mortgage. Many separation agreements require the spouse receiving the house to refinance or sell within one year of the date the divorce is granted. Based on the limited information presented here, it sounds like you have one of two avenues to pursue. First, you could move the court for a modification of the agreement based on a material change in circumstances. Second, you could pursue emergency relief--seeking a court hearing to deny or decrease your former spouse's parenting time until a determination concerning the childrens' welfare can be made. In every divorce involving children, it is important to note that property division, maintenance (alimony), child support, and parenting time (custody) are all separate and distinct considerations. Reconsideration of ownership of the house--or a court order that would force a sale absent the ability or willingness to refinance could be considered contempt as it is, at minimum, technically in violation of your final orders. Alternatively, if you were to be awarded full temporary or permanent custody due to the neglect action, a court might find that a modification of child support or property distribution (meaning you would get the house) would be appropriate. If I can be of further assistance, please feel free to give me a call.