Rental Income on Community Property

Is an ex-spouse entitled to half of rental income on a community property asset?

Property-Presumption5777583A divorcing couple decides to let their family home foreclose. The ex-husband was living on the property at the time. The husband filed for BK to delay the foreclosure and rented the house. Then the husband decided to start paying the mortgage again in an attempt to keep the property. Is the ex-wife entitled to half the rent the ex-husband is receiving?

Our Answer:

Assuming the property is still in both names, the wife is entitled to half the rent her ex is receiving. Sounds as if the wife should take him to small claims court. It also sounds as if the house is an “unadjudicated asset” (the divorce judgment doesn’t say who gets it). In that case, if it ever becomes worth anything, you might want to go back to divorce court and ask for it to be sold and the proceeds divided. If the house is an unadjudicated asset, there is a possibility that the small claims court has no jurisdiction to deal with who gets the rent, and that a small claims court judge might refuse to hear your case and send you back to divorce court.

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Can you be forced to sell your family home in a divorce settlement?

We recently answered some difficult divorce and property questions for a potential client.

PropertyDivision-17972913The Divorce Question:

A husband insists that he be reimburse for mortgage payments made during the marriage on his wife’s family home, half the credit card debt, accrued and paid off, and half of the home equity increase during the marriage. The husband has a pension and no debt. The wife is unemployed and living off of savings. The husband refused a settlement offer, and wouldn’t accept a payment plan with a promissory note and lien on the house, demanding $150,000 in cash, or a sale of the home. Are his claims for reimbursement valid? Could the court force the wife to sell her family home because he will only accept cash?

Our Answer:

You don’t reimburse him for the mortgage payments unless he made them out of his separate property. Same answer for the credit card debt. If you want the house, you have to pay him half of the equity as of date of division. You get half of the community portion of his pension, which might be substantial – hopefully worth at least $45,000. Looks to me like your husband is bluffing and taking advantage of you.

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