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#19784 - 07/07/05 07:57 PM Need Help On CA Divorce Laws!
AhhSheeit Offline
recently joined

Registered: 07/06/05
Posts: 3
Can someone let me know what the deal is with a case called Lucas v. Lucas? My attorney wants to argue my case on these grounds but I am not sure it will be in my best interest. Here is the summary of my case:

I was married in 2003 for a total of 7 months before seperation. I used funds from seperate property I owned before the marriage. She claims that I used money that she gave me from a retirement account as part of the down payment. My attorney says he will argue that the money was a gift to me so it is now my seperate property. There were only 2-3 payments made on the house beofre we seperated and title was taken in my name only because she ahd a bankruptcy.

I am now worried that due to the huge increases in property values in California, she may get more than she deserves which is nothing in my opinion. I made all the payments as she was not earning any money while we were together. Can someone please help?

Our court date is set fot next Thursday. Should I try to settle before then? She wants about $20,000.

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#19785 - 07/07/05 11:52 PM What paper trail do you have? [Re: AhhSheeit]
Melody Offline
Carpal \'Tunnel

Registered: 06/03/04
Posts: 10102
Loc: California
It all boils down to proof. If you can prove where the funds came for your downpayment, then you should be fine. But if she can prove that she did give you funds of hers, then there may be something there. Sure, you can try to claim it as a gift, and that may work...but it might also be seen in a different way since you were getting married. It may be viewed as "buying" an interest in the property. Either way....regardless of whether or not HER funds contributedto the down payment....she is entitled to 50% of ANY equity earned during the marriage...even if it was only 7 months. If the house value went up $50K during that 7 month period, she is entitled to $25K. It's called community property. Yes the property itself is yours, but the equity is INCOME...which belongs to both parties during a marriage.

PS...she doesn't HAVE to work in order to earn income involving property. That's the beauty of real estate investments.


Edited by Melody (07/07/05 11:53 PM)

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#19786 - 07/08/05 12:33 AM Re: Need Help On CA Divorce Laws! [Re: AhhSheeit]
matilda Offline
Pooh-Bah

Registered: 11/11/04
Posts: 2144
One thing to consider is that if the house were sold there are real estate costs that cut into the profit. This would lessen the amount of her claim. When you made a down payment on the house you probably got a cashier's check from your bank. Wouldn't the amounts of the down payment and withdrawal correlate?

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#19787 - 07/08/05 04:22 AM I'm not sure that they figure in [Re: matilda]
Melody Offline
Carpal \'Tunnel

Registered: 06/03/04
Posts: 10102
Loc: California
the selling costs...unless a house is actually sold. If you are just determining the value in order to arrive at a dollar figure for a settlement, it wouldn't be possible to do the exact selling price and exact selling costs....since deals could vary...brokerages could charge different fees...etc. I think it's a straight equity division based on the current market value of the property. At least, that's how it was handled in my case.

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#19788 - 07/08/05 02:31 PM Re: What paper trail do you have? [Re: Melody]
AhhSheeit Offline
recently joined

Registered: 07/06/05
Posts: 3
I can prove where the money came from for the major part of the downpayment but the tricky part is going to be the $9,000 she gave me. It was originally inteneded to be used to pay off my bills. There was an initial down payment of $5,000 that could have contained some of the $9,000. My attorney intends to argue that the money was a gift and I intended to keep the property seperate by taking title in only my name.
She thinks the whole $9,000 was used as a down payment.

Only 2-3 payments were made on the mortgage before seperation. Another question I have is when is the value of the property determined? I have tried to settle this for almost 2 years while she seemed content to sit back while the property values in California soared. There has got to be some sort of consideration for this, is there not?

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#19789 - 07/08/05 03:28 PM Re: Need Help On CA Divorce Laws! [Re: AhhSheeit]
matilda Offline
Pooh-Bah

Registered: 11/11/04
Posts: 2144
I found that when I got divorced most attorneys would give a free initial consultation. I think it wouldn't hurt to discuss your situation with another attorney and possibly get another slant. Hopefully you are keeping canceled checks and other information that shows that you have been solely paying for and maintaining the house the last few years. I would discuss with an attorney about settling out of court. IMO if she is saying that she will take 20K she will probably settle for less. When selling a car you ask for a higher price knowing that you would settle for less. Have you asked a real estate agent to come out and give you a home valuation? I wouldn't say that it is for divorce proceedings, but for a possible home sale. If you do decide to sell the house then you will be ahead of the game by interviewing agents early. You also need to weigh how much you would pay in attorney fees vs. just paying her off-both monetary and emotional costs.

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#19790 - 07/08/05 05:34 PM Sorry, but during the marriage [Re: AhhSheeit]
Melody Offline
Carpal \'Tunnel

Registered: 06/03/04
Posts: 10102
Loc: California
I don't think you can keep it as separate property...because you live in a community property state. Doesn't matter if the title is in your name only. The EQUITY is income to both of you...and that is what will be divided...not the actual property.

You'll need a solid paper trail to account for EVERY dollar if you expect to show that her money wasn't used for the property. And...as far as the value increasing...I would guess that it would be evaluated at the point where you became legally separated. Whatever the market value was at the time of separation (with legal documents)...if you waited all this time and didn't do any paperwork, then I'm afraid you're screwed and she will benefit by the wait.

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