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sadad
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Reged: 01/01/10
Posts: 103
Separate, Community, Commingled? Help
      #617133 - 01/03/10 12:30 PM

my soon to be ex wife put some money down on our house from an inheritance and now wants that taken out of the equity of the house that will be divided. Both of our names are on the house.

Also, she paid property taxes out of this account a few years and says that the marital estate owes her personal estate these funds.

Is this true??

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It takes a "special" person to cheat.
Once a cheater always a cheater!


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CuriousGeorge
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Re: Separate, Community, Commingled? Help [Re: sadad]
      #618178 - 01/06/10 02:00 PM

Yes - it is likely true based on my understanding of community property laws in Texas.

BUT - she MUST prove it. Most judges are going to require her to show the money withdrawn and the money paid. They want to see each side of the transaction to prove the "separate" property was indeed used in the marital (community estate). If she has good documentation (receipts, account statements, etc), you are going to have to deal with this. If she doesn't - it will suck to be her.

My EX did not have the documentation. :)

One other thing - I would argue that payment of the taxes was a gift to the marital estate. The tax payment created NO equity AND she benefited from having a place to live. Down payment on the house is ALL I would give back voluntarily. Put the rest in front of the judge.

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You never know someone until you divorce them.

Edited by CuriousGeorge (01/06/10 02:02 PM)


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sadad
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Reged: 01/01/10
Posts: 103
Re: Separate, Community, Commingled? Help [Re: CuriousGeorge]
      #618229 - 01/06/10 05:34 PM

Thanks curious,
The down payment I never argued about! Dont want ANY of it!
However, if she payed taxes or bought a tree or tile or whatever i agree that should be a "gift" to the marriage.

The money that I made bought plenty of stuff but now it is all gone! I lost my biz and am looking at bankruptcy. She wanted out, found someone else and is now trying to protect her money!! 95% of my debt is biz related and ALL in my name and she wants to put it ALL on me!

How can this be? SOOO unfair!!

--------------------
It takes a "special" person to cheat.
Once a cheater always a cheater!


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CuriousGeorge
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Re: Separate, Community, Commingled? Help [Re: sadad]
      #618501 - 01/07/10 09:54 AM

If I recall you story, your wife cheated and still is. Not to be vindictive or anything... ;) ... but she needs to pay the INFIDELITY TAX. Make her prove she paid the down payment on the house, don't just voluntarily hand it over.

Or you can be the nice guy - give it to her and move on. :)

--------------------
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You never know someone until you divorce them.


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sadad
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Reged: 01/01/10
Posts: 103
Re: Separate, Community, Commingled? Help [Re: CuriousGeorge]
      #618749 - 01/07/10 11:55 PM

Thanks again CG!
No doubt inmy mind that she will be able to show that transfer (but i will def need to see it)

About the other "stuff"
have you ever heard of someone trying to say that their seperate estate is owed by the marital estate for the purchase of a tree or carpet, wall paper?
Since we have seperated, she has thrown in ...
pool maint. (I always did it myself)
lawn maint. (I always did it myself)

ready for this one....

DOG GROOMING!

Yep, you guessed it...(I always did it myself)


have you ever heard of someone trying to say that their seperate estate is owed by the marital estate for such things?

If so, did they get it??

--------------------
It takes a "special" person to cheat.
Once a cheater always a cheater!


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CuriousGeorge
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Re: Separate, Community, Commingled? Help [Re: sadad]
      #618785 - 01/08/10 08:41 AM

No - I have never heard of someone taking it that far. Ridiculous. She is squeezing every penny she can get out of this.

My theory: This is her way of not having to take on any of the business debt. If she can create a virtual mountain of monies owed to her seperate estate, she can position in negotiations to say "I'll forgive the debt owed to my separate estate, if you just own the business debt."

Does she have a good paper trail for all of this? Set a very high standard to protect yourself. She would need to show me that she withdrew $61.22 (w\receipt) for Dog Grooming AND have a receipt from the Dog Groomer that she paid $61.22 (w\receipt). A cleared check would accomplish the same.

BUT - the paper trail is not enough. I would argue that SHE was in control of her separate estate and SHE chose to use that estate for HER voluntary living expenses without conferring with you. She picked out the wallpaper, it was NOT a necessity. She chose to use the Dog Groomer rather than doing it herself (not a necessity).

ALSO - If she withdrew $1000 from her separate estate and deposited it into a marital checking account and then proceeded to spend money from the marital checking account, you need to claim co-mingled funds and that there is NO way you can trace usage of the money. I have been told by multiple lawyers that there is no real way to prove that she deposited a 1000 pennies and then spent 980 pennies and that only the pennies she deposited were taken from the marital account.

If you did the pool maintenance, where is she getting receipts to prove that she paid someone for pool maintenance? Is she going to come up with fraudulent receipts? Submitting fraudulent receipts as evidence to the court is a crime and I would let her attorney know that - he already knows - but needs to know he should walk a straight line.

Sorry my friend, but this divorce is going to take some time. Not going to be over in 61 days. Get your running shoes on and work off some of the negative emotional energy she is creating.

--------------------
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You never know someone until you divorce them.


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sadad
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Posts: 103
Re: Separate, Community, Commingled? Help [Re: CuriousGeorge]
      #619051 - 01/08/10 06:03 PM

WOW!!!
Words can not describe the accuracy in which you have hit the nail directly on its head!!

The pool maint. (and some of the other) is from AFTER I left for a few days to "work on our marriage". (which she never planed on doing by the way and I have never returned)

yes she did deposits some funds into "our" account and YES she knows that she can not claim that but since she does not have any "wages" coming in to pay for her living, EVERYTHING she is spending is from her "seperate" estate and therefore, according to her, the marital estate owes her back.

in addition, she claims that she knew nothing to very little about the biz debt.


So, is it a defense for her to say that because she didn't know about the debt then therefore it cant be any part hers?

she is not only trying to build the mountain of monies for me to take the biz debt, but also to screw me out of the equity that WE have in our house!

Are you familiar with Texas law in this?

How will a judge look at this?

When it comes down to it, the money is not my priority.

IT IS MY KIDS!!

--------------------
It takes a "special" person to cheat.
Once a cheater always a cheater!


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CuriousGeorge
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Re: Separate, Community, Commingled? Help [Re: sadad]
      #619065 - 01/08/10 07:55 PM

Unfortunately, I don't know a lot about Texas law in this space, just a little familiarity based on my own experiences. Here are some thoughts:

1) The financial debate with judges and lawyers will be much easier for you so long as you are paying child support. (I assume you don't have a 50/50 split of parenting time.) Unless you are paying child support, NO ONE wants to talk to you about money. Even if there is NO court order for support, try to give her something for the KIDS. NO CASH - checks only with Child Support in the Memo line. Send the checks via certified mail. If she chooses not to sign for the letter and it is returned, keep it, don't open it and take it to court hearings wiht you. Take the cleared checks to every court hearing and mediation.

2) Her lack of knowledge for the biz debt is NOT a defense. Believe me - lawyers have seen numerous divorces where the WIFE ran up 10s of thousands of dollars in debt that only surfaced at the time of divorce. Just remind the mediator or lawyers when they start trying to shove the debt down your throat. My ex did it to me. She got 3 or 4 credit cards without my knowledge. She stayed at home and checked the mail each day and intercepted the bills before I could see them. She would buy stuff and keep it at her parents home. Believe me - I was held accountable for 50% of that debt. Lack of knowledge is not a defense. I certainly think this is true if you accumlated the debt in good faith - to earn a living - and not reckless spending. Demonstrate to the judge how you accumulated the debt and that it you were making good faith business decisions and she gets to own it.

3) If you are talking to her about these issues, then STOP. Wait for mediation, mentally think through what she will ask for and what your defense will be. Make some notes if you have to. Example - Mr. SADAD, we want you to pay her separate estate for the dog groomer. Well, Mr. Mediator, I cannot pay that, she should have groomed the dog herself. Ms. Selfish had full control of her funds and decided to use those funds to improve her standard of living. It is an expense of which the marriage received no benefit. This is not an expense that I am responsible for. The dog could have lived without grooming. Not a life or death situation. If she continues down this path, she is going to spend more in legal fees then she would ever possibly recover pursuing nickles and dimes.

4) Learn the word NO. I wish I had used it more. Be willing to say NO everytime they ask for something you do not want to give.

5) Always have an alternative. You don't want to come across as an obstructionist, so always counter offer.

6) Did you file your divorce as "at fault"? If so, you should push the infedelity button. I understand that infedelity can be used for an "unequal" divsion of the estate. If you cheated, she would certain ask for 100% of the assets and 0% of the debt. You should do the same but to get relief from a judge, I think you will need to have filed "at fault" and not irreconcilable.

7) Money seems to be a priority for her. That gives you leverage. Use it to get more time with your kids or other benfits. You can choose whether or not to give her money in return for something else.

How long have you been married?

How long has she stayed at home?

What is her profession?

Does she have a degree or professional certifications?

8) Her ability to work and make a living WILL play into a judges decision about how to split the estate. If she is just hangin out waiting on a settlement and not looking for work, then a judge might be inclined to let her spend her separate funds. Be prepared to demonstrate that she is being lazy and highly qualified to make a living. The economy is bad, but there is plenty of evidence that unemployed are construction and manufacturing workers. Not necessarily nurses, accountants, sales people, etc. Do you have a copy of her resume? Get one.

9) If you have been married more than 10-years, you may be asked to pay alimony (spousal support) up to 3-years. This might be another tool she uses to get her separate funds back.

From talking to several lawyers and my mediator, the judges in my county (DFW area) are very conservative about separate estates. I think the lawyers I have spoken with would say that she has commingled her assets or used them for her own personal living expenses and she will not get them back.

Do you have any mediation or court hearing dates scheduled?

--------------------
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You never know someone until you divorce them.


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sadad
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Posts: 103
Re: Separate, Community, Commingled? Help [Re: CuriousGeorge]
      #619141 - 01/09/10 07:48 AM

Nochild support!! when we first "seperated", I had the kids thursday - monday. Yes, I was her weekend sitter! I didnt care, I got more time with the kids!
She asked me for CS but I told her to stick it because I had them more than she did. When school started, we went to a week with each! Mon - Mon! Still no CS!!

BTW - my son is 12 and he has sighned the paper saying that he wants to live with me. My 10 yrold daughter has said the same!

How long have you been married? 13 years

How long has she stayed at home? I have been out of the house for about8 months

What is her profession? She/WE just opened her own boutique about a year and a half ago (I own half of it)


Does she have a degree or professional certifications? She does.....I do not

Do you have any mediation or court hearing dates scheduled?

Did mediation...got nowhere!
Court date... Her attorney wants me to do a deposition next week and I hope we will get final court date then.

6) Did you file your divorce as "at fault"? YES!!!
Filed ALL of that.... Adultery, I want the kids, I want the house, I want more assets etc etc etc.

She NEVER thought that I would have done that!!!

Her defense is that I wasted the family/business money!!
I abused her! I was cruel!
NONE of that will ever stick! SHE was the more "power controling" part of the relationship.
Even if I did "waste" business money, that would only make me a poor businessman!

I really appreciate your input CG!

--------------------
It takes a "special" person to cheat.
Once a cheater always a cheater!


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CuriousGeorge
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Re: Separate, Community, Commingled? Help [Re: sadad]
      #619171 - 01/09/10 01:23 PM

She'll be crying in front of the judge. I can just see it now.

The good news is that the judge sees that everyday. Don't let her attempts at emotional manipulation drive your emotions and behavior.

At the end of the day - she could have walked away from your "controlling" behavior. She CHOSE TO STAY in the marriage 13-YEARS. She knew at least 10-years ago whether or not you are controlling. She instead CHOSE to STAY for over 10-YEAR and CHOSE to be a CHEATER. Being a "controlling" person is subjective. Defining a CHEATER is very objective - you either did or did not.

At some point, she may realize that 50/50 on the kids means no child support for her. At that point, she will want the 65/35 split afforded by the Texas Standard Possession Order (every other weekend and holiday schedule). Because it has has been 50/50 for at least 6-months YOU MUST ARGUE "status quo" is best for the kids. Kids need stability.

Now that being said, I do know a father who has custody of his two children under the age of 10, one is special needs. He makes $45k a year and is required to pay his ex-wife (who never sees the kids) child support. He had a female judge in Austin. So much of what happens to you is highly dependent on the judge.

But I think with 98% of the judges you are in good shape:
1) easy to argue 50/50 or primary custody for you. This has been the "stauts quo" since the separation (8 months ago)
2) She is educated and has a business and can make a living TODAY (no spousal support / alimony)
3) She has a separate estate that can fill in her financial gaps and support her high standard of living (e.g. dog groomers and pool boys)
4) She needs to settle this and move on because even with the small chance she has to recover $275 for dog groomers and pool boys, she is going to give $300 to her lawyer. She is past the point of diminishing returns.

--------------------
---------------
You never know someone until you divorce them.


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