What Happens to the Family Home in a Divorce?

 Texas is a community property state, so if you are contemplating a divorce or in the middle of one, you should be aware of what this entails and the effect on your property division. When two people enter a marriage, a community estate is created. This means that most of their property, assets, and debts acquired during the marriage are presumed to be assets and debts of the community estate. Conversely, there can be assets or debts that are characterized as separate property of either spouse. Separate property is generally considered to be property that was acquired before the marriage or was received as a gift or through inheritance.

Some common examples of community property are bank accounts, credit cards, real estate, retirement accounts, and vehicles that spouses acquire during marriage. More specifically, your family home will likely be characterized as community property if the property was purchased after the date of marriage and the funds used to purchase and maintain the home were earned during the marriage as well. If both elements are true, then the home is subject to fair and equitable division at the time of divorce.

It is important to clearly establish when the home was purchased as well as where the funds came from to purchase the home. If monies earned or received prior to marriage were used, then the party who utilized those separate property funds could assert an equitable claim of reimbursement against the community estate to recapture those dollars. If the home was purchased before marriage, but was maintained by the parties after marriage, the spouse who did not take part in purchase could, likewise, assert a reimbursement claim against the other spouse’s separate estate on behalf of the community to ensure appropriate credit is given to the community estate for mortgage, taxes, and insurance payments (among other things) on one spouse’s separate property. However, pursuing a reimbursement claim is not always a simple exercise and requires that the party making the claim have sufficient proof to trace the money, in reverse, such as settlement statements, closing documents, and bank records.

If the Court weighs all the evidence and determines that the property is clearly and convincingly characterized as separate property, then the property itself is not subject to division in divorce, leaving only the reimbursement claim as the method by which the community estate can receive fair credit. But if the property is determined to be community property, you will have to come to an agreement as to how the family home should be divided, or leave the fate of your home in the Judge’s hands

Dividing property can be a difficult, and often emotional, aspect of divorce. Every family is different. There is no singular “correct” answer on how to divide the family home in divorce. Your family’s needs and your financial situation will impact how you deal with the disposition of the family home.

 Some common solutions you can consider are:

1.      Selling the home and dividing the proceeds equally.

2.      Having one party buy out the other’s share of net equity (i.e., fair market value as determined by an independent appraiser less mortgage indebtedness and other liens).

3.      Continuing to own the property jointly.

4.      Letting one party retain ownership in exchange for other divisible assets.

It is most common for both parties to sell all real estate and divide the proceeds as purchasing the other party’s interest can be expensive and unrealistic for many situations. It is important to consider the pros and cons of each option, considering your family’s circumstances. Many times, the parties wish to continue to raise their children in the family home and later sell the property after the kids have finished high school. But this option, if implemented, means you will need to remain in contact with your ex, work together to maintain the property and ensure that the mortgage and other expenses associated with the property are timely taken care of. This is especially difficult with a high-conflict divorce or if you have trouble communicating effectively and respectfully with your ex.

Additionally, maintaining a financial connection with your ex after divorce could have a negative impact on your credit score. For example, your mortgage debt will appear on both of your credit reports if you are both named on the note. Also, if the party who retains ownership of the property post-divorce fails to make mortgage payments, it can negatively affect the other party’s credit score, limiting that party’s ability to secure and purchase a home of their own. Similarly, if one party files for bankruptcy, the bank and creditors may be able to seize that property in the process.

No matter how you choose to deal with your family home in divorce, it is important that the terms and obligations are carefully and specifically defined. Utilizing experienced legal representation to accomplish this is highly advisable and the attorneys at Jenkins & Kamin, LLP are prepared to serve you.

Jenkins & Kamin LLP is one of the most respected family law firms in Texas. The firm is noted for its “team” approach by pairing skilled attorneys, paralegals, and other support staff with clients to assist them during difficult life transitions.

In addition to the “team” approach, Jenkins & Kamin, LLP strives to personalize case strategies for each client, including identification of every legal issue and effective explanation of the law with respect to those issues.  The firm endeavors to achieve a resolution that is appropriate for each client, while aggressively advocating on their behalf when necessary. Having a dedicated and experienced team working with you in any family law matter is of utmost importance to achieve the best result possible.

Jenkins & Kamin LLP represents clients in the following aspects of family law practice: Marital Property Agreements, Divorce, Complex Property Issues, Child Custody & Visitation, Child Support, Parentage, Modifications, Family Law Appeals and Dispute Resolution Alternatives. To learn more about the firm, visit http://www.jenkinskamin.com or contact one of our offices in the greater Houston area.

Mike Day joins Jenkins & Kamin LLP

 Jenkins & Kamin LLP is proud to announce Mike Day has joined the firm as an associate. Jenkins & Kamin LLP is one of the most respected family law firms in Texas. The firm is noted for their “team” approach to enhance the client experience by utilizing its attorneys, paralegals and other support staff to support its clients during difficult life transitions.

In addition to the “team” approach, Jenkins & Kamin, LLP strives to personalize case strategies for each individual client, including identification of every legal issue and effective explanation of the law with respect to those issues.  The firm endeavors to achieve a resolution that is appropriate for each client, while aggressively advocating on their behalf when necessary. Having a dedicated and experienced team working with you in any family law matter is of utmost importance to achieve the best result possible. 

Experience matters. Compassion counts.

Mike Day was born in New Orleans, and moved to Texas when his father was transferred to the Houston-area with Exxon.  Mike attended the University of Texas at Austin, where he was a member of the Liberal Arts Honors Program and graduated with a degree in History in 2002.  He received a Dean’s Honors Scholarship to attend South Texas College of Law-Houston.  During law school, Mike learned a great deal about trial advocacy and was highly involved in the nationally recognized moot court program.

Mike began his legal career as a small-town felony prosecutor.  A month into the job, he conducted his first jury trial in a murder case.  In addition to managing an active felony docket, Mike was also responsible for obtaining protective orders on behalf of domestic violence victims.  Thereafter, Mike worked for then-Texas Attorney General Greg Abbott where he defended medical providers and state employees in civil lawsuits in in both Texas courts and federal courts at the trial and appellate levels.  After meeting his future wife, Mike returned to Houston in 2008 and shifted the focus of his practice to family law. Since then, Mike has successfully represented family law clients in jury trials, bench trials, arbitrations, depositions, mediations, appeals, and various hearings. Not only does Mike enjoy the intellectual challenge of high net worth divorces, he also has a passion for family law matters involving children with special needs.

In 2022, Mike became Board Certified in Family Law and joined the Jenkins & Kamin family.  In addition to his private practice, Mike serves as the Marital Property and Homestead Reporter of the Real Estate, Probate, and Trust Litigation section of the State Bar of Texas.  This role requires Mike to prepare quarterly reports summarizing the most cutting-edge cases on the intersection of characterization (i.e., whether property is community property or separate property) with trusts, inheritance, business valuation, and real estate issues to this section’s attorney members.

Mike has previously served on the Board of Directors of the Family Law Section of the Houston Bar Association and has twice served as a Team Leader in the Burta Rhoads Raborn Family Law Inn of Court.  In 2017, he won the “Outstanding Article Award” from the Houston Bar Foundation for his article examining unresolved issues involving same sex marriages. Mike also received the “Individual Volunteer of the Year Award” at the Harris County Pro Bono Bench Bar Conference in 2017.  He is a fellow of the Houston Bar Foundation and the Texas Bar Foundation.  When he is not practicing law, Mike enjoys spending time with his family, reading, and traveling.

Jenkins & Kamin LLP represents clients in the following aspects of family law practice: Marital Property Agreements, Divorce, Complex Property Issues, Child Custody & Visitation, Child Support, Parentage, Modifications, Family Law Appeals and Dispute Resolution Alternatives. To learn more about the firm, visit www.jenkinskamin.com or contact one of our offices in the greater Houston area.

Do Judges Interview Children in Texas Custody Cases?

 If you are a parent in Texas seeking custody of your children in a suit for divorce or modification, you may be interested to know more about the Court’s role in making a decision on this issue.  A judge will consider many factors when ruling on custody, with the most important consideration being the best interest of the children involved in the suit after hearing all the evidence presented by the parties.

One of the aspects in determining a child’s best interest can be the desire or choice of the children themselves. Parents involved in custody cases may request a judge to interview a child and discuss their preference on who they want to live with as well as what visitation they would like with each parent. These interviews are typically conducted in the Judge’s chambers without attorneys or parties being present. But, this is not an option in all custody cases. For example, The Texas Court of Appeals recently affirmed a trial court’s decision to decline to perform an in-chambers interview of a child in a divorce case.

Under Texas law, a judge shall interview any children over 12 years of age to determine their preference as to the parent with whom they wish to primarily reside. In the aforementioned case, a mother of four children had requested that the Court conduct an interview of the oldest child (who was thirteen years old). However, the Court denied her request, asserting she had waived her right to have the child interviewed because she failed to file the requisite motion. At the conclusion of the case, the father was awarded primary custody of the children which prompted the mother to file an appeal, citing the legal requirement in Texas to perform an in-chambers interview of a child older than twelve as she requested. The trial court’s ruling was ultimately upheld by the appellate court, and in doing so, determined that the decision to deny an in-chambers interview of the 13-year old child did not constitute reversible error because the child’s preferences had been adequately presented through other evidence, including the testimony of the child’s therapist and a custody evaluation that was conducted by a social worker during the litigation.

While this case is a bit outside the “norm”, it’s instructive. If you make a proper motion to the Court requesting the Judge to interview your child who is older than twelve, the interview must occur according to Texas law. You can also request the Court to interview children under the age of twelve, but that decision is up to the Judge’s discretion and dependent on facts & circumstances specific to your case.  

In this interview, the Court will take your child’s wishes about their primary residence and visitation arrangements into consideration, but this decision is ultimately up to the Court. Meaning, the Court will not simply “rubber stamp” your child’s expressed preference. Regardless of a child’s age, the Court’s primary consideration in ruling on such matters shall always be “what is in the child’s best interest?”. A child’s preference is only one of many factors the Court may choose to consider.

Going through a disputed custody trial is emotionally difficult for all parties involved, especially the children. You want to ensure that all relevant information is available and properly presented to give the Court the ability to determine the best arrangement for your children. An experienced attorney can help you prepare your case strategy to achieve the most favorable and just result.

If you are searching for someone to represent you in a divorce or modification involving contested custody issues, Jenkins & Kamin, LLP is prepared to serve you. Jenkins & Kamin LLP is one of the most respected family law firms in Texas. The firm is noted for its “team” approach by pairing skilled attorneys, paralegals and other support staff to enhance each client’s experience in difficult life transitions.

In addition to the “team” approach, Jenkins & Kamin, LLP strives to personalize case strategies for each individual client, including identification of every particular legal issue and effective explanation of the law with respect to those issues.  The firm endeavors to achieve a resolution that is appropriate for each client, while aggressively advocating on their behalf when necessary. Having a dedicated and experienced team working with you in any family law matter is of utmost importance to achieve the best result possible.

Jenkins & Kamin LLP represents clients in the following aspects of family law practice: Marital Property Agreements, Divorce, Complex Property Issues, Child Custody & Visitation, Child Support, Parentage, Modifications, Family Law Appeals and Dispute Resolution Alternatives. To learn more about the firm, visit www.jenkinskamin.com or contact one of our offices in the greater Houston area.