How Do I Buy Out a House From a Spouse?

How Do I Buy Out a House From a SpouseWhen you go through divorce, you’ll be confronted with many decisions that affect your financial future. One of those decisions concerns the family home. Because many people hold strong attachments to their home, deciding whether to sell or keep it can be incredibly emotional. This is especially true if children are involved. If you’ve reached that decision in your divorce, you may be wondering “how do I buy out a house from a spouse?” In this article, we discuss the answer that question. To learn more, contact a divorce lawyer at the Law Offices of Rick D. Banks today.

Can I Afford to Keep My Family Home?

If the court grants you more time to spend with your children, you might feel as if you should keep your family home. Amidst the many changes associated with divorce, many parents seek to provide as much stability as possible to their children. Although the family home can provide that feeling of stability, keeping your home isn’t always the best financial decision.

You must keep a realistic sense on whether you can afford to keep your home. While staying in the same place, and avoiding the stress of moving, can seem like a good idea, digging yourself into debt can endanger your family in the long run. Giving your spouse all your other assets in order to buy them out can strip you of the ability to pay the mortgage or property taxes. Before you ask “how do I buy out a house from a spouse?”, you first need to ask “can I afford to buy out my spouse?”

If you can afford to keep your family home, you can move to the next step and buy out your spouse’s share of the property.

How Do I Buy Out a House From a Spouse in California?

Under California law, courts rule that all property bought or earned during a marriage must be divided equally during divorce. This “community property” includes the family home.

Because a home cannot be physically divided, spouses have the option of buying out the other spouse’s interest in the property. To start this process, you both must first establish an acceptable buy out value. If you both cannot agree on the value, then consider hiring a professional appraiser. The appraiser will look at the fair market value of your home to determine the value. After you have the buy out value, then you will need to present 50% of that value (minus any debts on the home) to your spouse.

Keep in mind that your spouse is entitled to any other separate property contributions they made towards buying the home. For instance, if your spouse spent $30,000 towards the home in pre-marriage savings, then they are entitled for reimbursement for that $30,000 when you buy them out. That means that when must provide 50% of the home’s equity plus the cost of their reimbursements.

Claims concerning separate property reimbursement is often complicated. If you find yourself in this type of situation, then consult your family law attorney for assistance.

In addition to the above costs of buying out your spouse, you must also plan for potential negative capital gains taxes should you want to sell the home in the future. Consult your tax adviser to determine those future costs.

What If We Sell Our Home Instead?

If you decide you cannot afford your home, and your spouse agrees, then you can sell your home instead. But before you do that, you must workout the following issues:

  • determining the listing price
  • finding a trustworthy real estate agent
  • reviewing potential offers
  • covering the costs associated with selling a home

Typically, when spouses agree to sell the family home they will split all the net profits equally. For instance, if the entire net profit of the sale is $200,000, then you both will receive $100,000 each. However, separate property reimbursements must also be addressed.

Considering Buying Out a House From Your Spouse? A Divorce Lawyer Can Help

Deciding the fate of the family home during divorce can be both stressful and emotional. Because of the memories associated with the home, you and your spouse may have a measure of sentimental attachment to it. If you wish to keep your home and want to buy out your spouse, speak with an experienced Fresno CA family law attorney at the Law Offices of Rick D. Banks today.

How to Prepare for a Custody Battle: 4 Steps to Keep in Mind

How to Prepare for a Custody BattleRetaining custody of your children requires taking several pre-emptive steps and learning key bits of information before child custody proceedings. In this article, we’ll examine how to prepare for a custody battle and improve your chances of winning your case.

1. Hire an Attorney Who Knows How to Prepare for a Custody Battle

The difference between keeping or losing custody solely lies in your choice of lawyer. You need a seasoned custody attorney who can use their knowledge and experience to help detail the entire custody process to you. Never cut corners if your children’s future is on the line. At the Law Offices of Rick D. Banks, we know how to prepare for a custody battle. Contact us today.

2. Keep Detailed Records and Accounts

If you keep a journal and detail certain records and accounts, your attorney can use these documents to greatly increase your chances of keeping child custody. Keep track of the following:

  • How often you spend time with your children
  • Every activity that you’re involved with your children in
  • How often your spouse spends time with your children
  • Note down the times your spouse is gone, how long they’re at work, and how often they leave town for trips
  • Note down all negative remarks, profanities, threats, shouting, arguments, or other adverse behavior

Recollect over the previous six months to a year and document everything you’ve done, as well as your spouse. Show the court your records to prove you’re an active caretaker of your children. Consider even bringing in photos of your child to show that they’re happy in your care.

3. Prove You’re a Capable Provider

The last step you should take to prepare for your custody battle is to establish that you can provide for your children. The court wants to serve your children’s best interests. If you can show that you can care for those interests, then you vastly improve your chances of keeping custody. Inform the court on the following facts. You:

  • Hold a job and place to live
  • Have already prepared for child care and school
  • Participate in extracurricular activities in the community, such as volunteering at your children’s school, being involved in your neighborhood or church, etc.

On the flip side, prepare to show why your spouse is incapable of properly caring for your children. Get witnesses to testify against your spouse’s parenting ability to help prove they are the improper custodial parent.

4. Stay in the Family Home Until Custody Arrangement is in Place

If you plan to move out of the family home without your children, wait until a court order is in place before you do so. This can also include waiting to move until a written agreement is in place that sets the start of the custody arrangement to after you leave the house.

Your Children’s Preference of Custody

Children don’t get to decide which parent to live with until they reach a certain age. Because of the high pressure behind deciding, the older your children get, the more the court acknowledges their ability to make an intelligent decision. Once your children reach a certain age, the court will place a greater importance on their opinion. However, even at that age, the court can still override your children’s preference if living with one parent proves a detriment to their best interests.

Oftentimes, when a child expresses interest in living with a certain parent, the court will appoint an interview from a minor’s counsel. During this interview, the counsel will figure out how much emphasis to put behind the child’s decision.

What Questions to Ask Your Child Custody Attorney

Learn how to prepare for a custody battle by asking your attorney the right questions. Some of these questions include the following:

  • What important factors lead to gaining temporary custody of my children?
  • What consequences result from moving out of the family home and giving temporary custody to your spouse?
  • Why did I lose temporary child custody, and how can I improve my situation to achieve permanent child custody?

At the Law Offices of Rick D. Banks, our experienced legal team knows how to prepare for a custody battle. Contact us today.

Court Ordered Drug Testing in Child Custody Cases

Court Ordered Drug Testing in Child Custody CasesUnfortunately, substance abuse is a widespread issue in the United States. More often than not, drug and alcohol use forms the key backbone of many divorce cases. If you suspect your spouse of substance abuse and want a divorce, it is vital that you address this issue before it posses a threat to your children. Learn about court ordered drug testing in child custody cases below.

Under normal circumstances, the court will not require drug and alcohol testing. In order to get such tests, you must request it. But keep in mind that the court will grant your request only if you can provide evidence of your spouse’s substance abuse problem. However, if your spouse holds a history of alcohol-related criminal charges or illegal drug use, then that meets the burden of proof, constituting a “preponderance of the evidence”.

How Does the Court Approach Drug and Alcohol Testing?

Courts must administer drug and alcohol testing in the least intrusive method possible. This typically means they can only request urine samples. Unfortunately, even though hair follicle testing is more accurate than urine tests, the court still cannot order this method of testing. Also, even if your spouse does yield a positive result on their court ordered drug testing, then that doesn’t automatically translate against them when the court decides child custody. Furthermore, these test results cannot be used against your spouse beyond the family law proceedings.

Best Interests of the Child

When determining child custody, the court will always act in the best interests of the child. If your spouse holds a documented history of criminal alcohol activity or illegal substance abuse, then the court can demand drug and alcohol testing. This is because substance abuse can endanger your child’s best interests.

Proof of Substance Abuse

To obtain court ordered drug testing in child custody cases, the court can also require “independent corroboration” of a parent’s drug and alcohol use. This often includes documented reports from:

  • law enforcement,
  • probation departments,
  • substance abuse services,
  • medical facilities,
  • social welfare agencies, and
  • other courts.

If such documentation of your spouse’s drug and alcohol use does not exist, then you can file a court declaration concerning their substance abuse. If there are any third-party witnesses to your spouse’s drug and alcohol abuse, then consider filing their statements along with your declaration. Third-party witnesses can include friends, extended family, neighbors, teachers, co-workers, or even strangers.

Requesting Court Ordered Drug Testing

Keep in mind that if you request the court to administer drug and alcohol testing to your spouse, then they will also require that you undergo testing as well. In fact, the court will decree that both you and your spouse share the costs associated with testing. This can be an expensive burden when considering other costs associated with your divorce.

When submitting your declaration to the court, you must detail every incident of your spouse’s drug and alcohol abuse that you or someone else has witnessed. Simply citing the apparent presence of substance abuse is not considered evidence. Therefore, changes in your spouse’s appearance or behavior cannot be counted as evidence and used against them.

All in all, the court will always acts towards the best interests of your child. Although drug or alcohol use may not be enough to restrict custody, the court generally finds the use — whether casual or rampant — of such abuse to serve against the child’s well-being. The court will acknowledge the fact that substance abuse most often leads to bad parenting decisions and worse.

Learn More About Court Ordered Drug Testing in Child Custody Cases

Does your spouse have a problem with drug or alcohol abuse? Consult a Fresno divorce attorney as soon as possible to determine if you have grounds to seek court ordered drug testing. At the Law Office of Rick D. Banks, we can advise you as to how to approach court ordered drug testing in your child custody case. Contact us today.

How to Win a Move Away Case With the Help of a Child Custody Lawyer

how to win a move away caseWhen it comes to child custody, move away cases are often the most emotionally challenging aspects of divorce. All too often most experienced lawyers see these types of cases result in a bitter diversion between spouses. Whether you’re the parent looking to move away to start a new life or the parent staying behind, you will need to fight your spouse to keep your children by your side. Unfortunately, this fight is most often expensive, complicated, and time consuming.

Our seasoned relocation lawyer knows how to win a move away case. In this article we’ll discuss what we know to help you prepare for the proceedings. Contact the Law Offices of Rick D. Banks today to discuss the specifics of your case.

Moving Away Seriously Disrupts Most Child Custody Schedules

In any custody case, having a stable custody arrangement is one of the most important factors. Furthermore, the court will use the status quo of a situation as a fallback whenever there is doubt in determining a custody arrangement. That means that most move away cases will disrupt the status quo. This is because very rarely can parents maintain the same visitation schedule after one parent moves out of state. Because of this disruption, you will need to prove that either moving away or staying will serve the best interests of your children.

How Sole or Joint Physical Custody Functions in Move Away Cases

When deciding on a move away case, the court will look at which parent holds sole or physical custody. For example, if the parent seeking to move away has been awarded sole custody by a judge, then the non-custodial parent must prove that moving the children away will cause a detriment to their best interests. Because the moving parent has sole custody, it is assumed that they possess the ability to properly relocate with the children. That example also hinges on the fact that the moving parent gives proper legal notice of their intent to the spouse staying behind.

How Relocation Cases Are Handled Without a Final Child Custody Arrangement

What about move away cases where a final child custody arrangement has not been decided? The court will employ the “best interest of the child” standard. This means that the court will not presume anything for or against both spouses when deciding whether or not it should grant relocation. The court will simply look at whether moving away or staying will serve the child’s best interest.

What Happens If the Move Away Request Is Denied?

More often than not, if their move away is denied, most parents think they can just alter their plans and stay behind. Unfortunately, reality does not always work that way (these issues typically aren’t black or white).

If the court denies a move away request, then they must make their orders consistent with the requesting parent without involving the children. This is because the court will generally not assume that the moving parent will stay behind if their request is denied. That means that the court can give custody to the parent staying behind so that the requesting parent can still move away (without the children).

Does this situation always happen when a move away request is denied? Again, as stated above, these issues aren’t always black and white. Sometimes the law allows conditional move away orders, however those situations are beyond the scope of this specific article. Consult your attorney to learn how to win a move away case under such a condition.

Hire a Child Custody Lawyer Who Knows How to Win a Move Away Case

Because of the emotionally complex nature of move away cases, you need an experienced child custody lawyer fighting on your side. At the Law Offices of Rick D. Banks, we will provide you with the skill and compassion your case deserves. We will take time to figure out your specific situation to help you learn exactly what you’re getting into before litigation. Contact us to learn more about how to win a move away case.