property equity in divorce

If I Leave the House, Do I Lose My Equity?

Goldberg Jones Divorce, Featured Posts Leave a Comment

One of our founding partners, Rick Jones, regularly appears on the Danny Bonaduce and Sarah Morning Show, where he answers family law questions from listeners. Some are relatively straight-forward and hit one topic, while others get downright convoluted and are part of a much larger conversation. On a recent show, he fielded one of the latter.

This question is something of a misdirect. It encompasses domestic violence, home equity, and what to do if you can’t go to the authorities. That last part becomes clear once you get into the heart of it.

Listen to the call below:

Caller: “I’m in a domestic violence situation with a retired police officer, and I have nowhere to go. I’ve looked at all domestic violence agencies, but they’re all related to the police stations and everything. So the bottom line is if I leave the house, do I lose my equity into that house?”

Rick: “The question she had is if she loses equity in the house, but I want to come back to where you were going with it.

“The answer is no, you don’t lose any equity. These are dollars and cents, assets and liabilities. So the fact that you’re possessing or not possessing the home, it doesn’t matter in terms of the financial settlement.

“Now, where it does come in to play though, in a couple of ways, if the two of you do have minor children. If you were to move out with the children remaining in the home, you have harmed yourself when it comes to temporary custody and maybe even permanent custody. So keep that in your mind.

“The third potential point is if you desire to have this be more than an asset, if you desire to ultimately end up living in the home, then you’re also harming yourself by moving out. But understand that’s different than the asset value, it’s the ‘use’ value of it.

Danny: “And that’s a very important thing I’ll tell you that and I’m learning this the hard way. When my ex-wife and I got a divorce, I said, give me a little money and you can have the house. I was a nice guy, a gentleman. These things appreciate. I didn’t mean to be this nice. Her house is for sale right now for a fortune!

Related Reading: “We Bought a House Together but Broke Up, Now What?”

DOMESTIC VIOLENCE AND PROTECTION ORDERS

Sarah:If she’s experiencing a domestic violence dispute and not happy staying in the home, and it’s potentially problematic for her to leave, is there anything she could do in the meantime?”

Rick:Sure. The gap in my knowledge is what level of resources are available to her, in lieu of a social service variety. But there is a legal resource that she should consider. When you’re being victimized by domestic violence, you can seek and get what’s called a ‘protection order.’

“What that does is it’s basically a restraining order based on domestic violence. It ends up kicking that person out of the home for a period of ten days. It’s a temporary protection order. At the end of that ten days, you come back and have a hearing on it. The issue is whether or not that becomes permanent in terms of a restraining order.

“It sounds like she would be eligible to get this protection order. Now, usually what you do is in conjunction though with a followup divorce filing. Because more than likely she’ll also need some sort of financial resources coming through. If she’s the one in the house, she’s going to have the rent, or in this case the mortgage since she owns.

“But part of the divorce filing is you can seek a temporary order that says okay, now the husband is still out but he needs to pay X amount of dollars either as spousal maintenance, like alimony or as just payment of community debt. So that’s a resource she should really consider.”

Related Reading: What You Need to Know About Protection Orders
Related Reading: “If We Never Married, What Happens to the House?”

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