In this episode as part of our “Real Estate In a Divorce” series, Brian Walters and Jake Gilbreath address some of the most frequently asked questions regarding the marital home in a Texas divorce. The partners discuss filing temporary orders when the divorce process starts, situations where they may need to prove if a home is a community or separate property, and how a judge may determine who gets the home in a divorce.
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Your hosts have earned a reputation as fierce and effective advocates inside and outside of the courtroom. Both partners are experienced trial attorneys who have been board certified in family law by the Texas Board of Legal Specialization.
Brian Walters:Well, thanks for tuning into the For Better, Worse, or Divorce Podcast, where we provide you tips and insight on how to navigate divorce and child custody situations. I’m Brian Walters, joined by my law partner, Jake Gilbreath. And today as part of our real estate in divorce series, we’ll be discussing another common question we get asked, and that is if you should move out of the marital home during the divorce. And all the things, sub-questions that come up because of that question. So I think there’s several factors to think about when you think about moving out of the house. I mean, clearly, if you’re going to get divorced, eventually someone’s moving out of the house, and maybe ultimately both of you if the house gets sold.
So let’s talk about that kind of in order. I think probably the first one that comes to mind is financial consideration on temporary orders. So just to be clear, Texas doesn’t have legal separation. Most other states when you move, when you file for divorce, or separate, your financial world severs at that time, and you kind of each go on a day to day basis on your own. That’s not the case in Texas. When you file for divorce, you’re still a financial entity together, and so that causes some very specific issues. So, Jake do you want to tell us a little bit about the typical arrangement? Somebody files for divorce and one of the two spouses are going to move out of the house. What do they both need to be thinking about financially when that decision is made?
Jake Gilbreath: Right. Well, first and foremost what we always say is think about safety first. We’ve talked about this kind of in other episodes, but it’s important enough to bring up right off the bat. You want to sort of think through financially how a move out’s going to impact you, or how it may impact who gets the house in the divorce, whether or not you stay in the house or not. But ultimately, safety is the most important thing. So, if you’re in an unsafe situation, do not stay in an unsafe situation because of something that you think is going to impact the financial arrangement in your overall divorce. And know that there are remedies. If you’re in a family violence situation, if family violence has occurred recently, the court may issue what’s called an ex parte protective order, kicking somebody out of the house. There may be other remedies for emergency relief from the court. Talk to a lawyer if you’re in an unsafe situation and always keep your safety and your children’s safety utmost priority.
As far as for the planning, it’s just: Do I move out, do I not? It kind of goes into this bigger question people have. Who’s going to get the house in the divorce? If I move out, is my spouse going to get the house in the divorce? And how is that move going to impact me? So financially speaking, if you’re moving out of the house, you need to sort of think ahead. It’s important to talk to a lawyer during this time. Think ahead of: Am I going to be able to afford, first of all, where I’m moving? Am I moving into a place that’s going to require monthly rent or some type of lease? It’s probably not going to be the situation where you’re looking to buy something, but have a lease, either six months or a year. Can I afford it, right? Maybe you can afford a month or two. But what’s your cashflow going to look like while a divorce is pending? And so that kind of dovetails into the topic of: How are bills paid when a divorce is pending?
And it’s a difficult decision to make as far as moving out because a lot of times you don’t know when the decision’s right to be made. You don’t know what the financial situation’s going to be. The worst case scenario is if you didn’t even know what your finances are because a spouse, for whatever reason, has maybe kept you from that information, or that’s just the way your marriage was set up where you don’t have that information. And so you’re making these big financial decisions without knowing what the situation is. But remember, when a divorce is pending, a court is going to put in place temporary orders. And temporary orders are: What’s the rules that govern while a case is pending? And a lot of times people agree on temporary orders, but if they can’t agree on temporary orders, then a judge is going to decide. And those temporary orders are going to talk about who lives where. Like we said in other episodes, a judge is not going to have the spouses living in the same house together while divorce is pending.
I guess in theory you can agree to that, but that rarely works, as you can imagine, but you could agree to that. But a judge is going to say, “Okay, here’s where this spouse lives. This is where that spouse lives.” And if there’s kids, this is what the possession schedule is going to be. Here’s how we’re going to pay for bills, and here’s how we’re going to move y’all forward to get to a final trial. That can be hard though if you’re thinking about moving out before those temporary orders because you don’t know what the situation with the financial situation’s going to be. So Brian, what do you do with those situations? You have a client coming, let’s say it’s going to be two weeks before you have a temporary orders hearing. Two, three weeks, which is not atypical that it would take that long to have a temporary orders hearing. Do I stay in the house? Do I not stay in the house? Safety is most important. But how do I make that decision if I don’t know what the temporary orders are going to be or how we’re going to pay for things?
Brian Walters: Yeah. As you said, safety first, for sure. Then I think we get into questions about: Do we have children? Do we have a potential custody battle? So that’s the most common reason I think we get this question, should I leave the house? I think people worry about how that might affect a custody case. And it can, so we should probably talk about that for a few minutes. So a situation where there’s not an immediate safety concern and where you think there could be a conflict over possession, or access, or custody, I think we do need to think about this carefully.
If you leave a house prior to a temporary orders hearing and you leave the kids with the other spouse and you just kind of set up shop somewhere else, and you don’t see the kids much or very frequently, especially overnights, that can be a problem. That could be viewed by a court as you are conceding that the other parent should have custody, or the children are not that important to you. The most important thing is to get on with your life, or something along those lines. So I do think you need to be careful about that. I think courts are smart enough to know that sometimes people just need to separate and sometimes you just don’t have an agreement. Sometimes you just have to get out of the house, and you just have to go those two or three weeks with uncertainty or even seeing your kids less than you want to. But that can be a problem, at least that’s from what I’ve seen. Is that your view or your experience with it as well?
Jake Gilbreath:Yeah, it can be a problem. If somebody moves out, particularly we talked about this the other episodes. If you don’t have a possession schedule in place for kids and you move out, and then you say, “Well, we’ve talked about it and my understanding is we’re doing a week on, week off, or 50/50 schedule.” And your spouse, who has the kids, that stays in the house says, “I’m not doing that. I talked to a lawyer; we’re not doing that anymore.” And then you don’t have a possession schedule until you get to court, which can be a very difficult thing. So sometimes, again, safety first, sometimes it is though where we don’t move out until there’s ground rules put in place. That can be a not fun situation, so it’s all a balancing act of whether or not that’s appropriate or not.
But if someone makes a decision before temporary orders to move out, that obviously will push it. It just adds logistical issue to the judge. It’s not going to be absolute binding. Like Brian said, a lot of them will understand, she’ll understand why somebody had to move out if that was the situation. But it’s just another logistical issues. I view temporary orders largely as logistics, not largely, but a good portion of temporary orders is logistically how we’re going to deal with everything to get these folks divorced and to a final resolution. And so, if somebody’s already moved out, logistically it’s more difficult to switch. If wife’s moved out, husband stayed in the house, that’s not binding on the court whenever she hears temporary orders. It is just another issue to consider of, “okay, if I have wife stay in the house while the case is pending, I’ve got to now move her back in and move husband out.” Maybe that makes sense, but it’s just another logistical issue to deal with.
And of course, kids impact all of this. Stability is a big, big goal for a judge on temporary orders. It’s not binding. It’s not the only thing that a judge takes into consideration when she’s making rulings, but it is something for her to consider when doing that. So, all those things go into the move out. So, let’s talk a little bit more sort of logistics too. This is kind of a level of detail we have to think about in family law, personal property and furnishings and stuff when you move out. If you made the decision to move out, your spouse moves out, that’s something that’s got to be dealt with. And frankly, it needs to be dealt with probably in the outset. So, if somebody’s moving out, I typically tell them, if you’re moving out, take what you and your spouse agree to. If there’s a disagreement, please don’t have the cops called over the side table and the couch.
If you can’t have an agreement, don’t get in an arm-wrestling match. But just take what y’all agreed to and then keep an inventory. Just like you do for an insurance company, for homeowner’s insurance, where you go around and you kind of get inventory of your house, or take pictures, particularly your valuables. Go ahead and do that because it may be six months before you’re in a mediation, maybe longer before you’re in a mediation. Then trying to sit there and think in a mediation of what furnishings or what valuables did I have in the house. Or my baseball card collection from when I was six years old, I left that in the house, and I want to make sure I get that. That can be hard to remember down the line.
I encourage people to try to work out personal property, particularly items of sentimental value towards the outset, at the beginning of the divorce. It really is big tendency to just say, “We’ll just deal with it at the end, or just deal with it at the end.” But it’s easier to do it at the beginning when it’s fresh on everybody’s mind. I’ll tell you, when you go to mediation, there’s nothing worse in mediation than settling a multimillion-dollar estate and dealing with a complex child custody situation that may have a customized possession schedule. And then some complex agreements that we’ve made on conservatorship for the kids and child support. And all this stuff has been negotiated, refinance has been negotiated, pay-outs, notes, interest rates. Everything’s been dealt with, and it’s 9:00 at night then somebody goes, “Okay, so let’s talk about the refrigerator magnets. It’s a big sentimental value to the husband who moved out.”
Or by the way, I left my wedding ring in the family safe. Can I have that back? And that can be a very emotional and taxing thing at the end of a long day of mediation. And so I like to have people figure that stuff out well before mediation or final trial. There’s also nothing worse than trying a case for three or four days on a complex property division and then going at the end, “By the way, Judge, now’s the point in my presentation after arguing over this $10 million business valuation, now’s the point in my presentation where I’d like to talk to you about the brown couch that’s in the living room. Not the brown couch that’s in the dining room, the side room to the dining room table. But the brown couch that’s in the living room next to the TV that I’ll be talking to you about next because that’s my client’s TV and he or she wants it back.” It’s awful, just deal with that right at the outset. What are your thoughts on that, Brian?
Brian Walters: 100% kind of smiled when you brought this up because I had that exact very similar conversation yesterday with a client of a long, very complex, very difficult case, and being in a multi-day trial. And we got a ruling and everything, and that was the question I got asked is, I still need to get my yearbooks, basically, from high school. And this is a client who didn’t take that out when he moved out and also didn’t get it or bring it up nine months ago when he had a dedicated chance to get in and get his stuff.
And it just came up yesterday, and that was kind of my response was, “Well, at this point, you’re technically divorced and it’s basically her goodwill.” If she says, “Oh, yeah, there here. You can have them,” good. If not, I’m not sure you’re never going to see those again. She’s going to probably say, “What yearbooks? I don’t have them.” And it’s going to be impossible to prove it one way or the other. And it’s not going to be of any interest to the judge, I’m pretty sure, because they’ve already made rulings in the case. So yeah, totally agree. You’ve got to deal with that stuff upfront or else it will likely not get dealt with.
Jake Gilbreath:Yeah. Sometimes there’s a good faith reason, right? Sometimes people just lose stuff. Where is that photo album? Or where’s the ring that my grandmother left me, or the China set? It can range from good faith to bad faith. “Where’s my grandmother’s China set? I think we packed it away. It’s in storage.” Ranging from that to, “There’s a horrible, awful earthquake, and I’m so sorry, your grandmother’s China’s all broken. Nothing else broke in the house, but your grandmother’s China – who I never liked by the way, it all got broken. So sorry. And I threw it out, so it’s in the dumpster.”
Both Brian and I are smiling because as divorce lawyers, I always tell people we deal with everything. We deal with very, very important, everything’s important of course, but we deal with very complex issues. Business valuations and valuations of estates, and tracing and characterization. We do very complex custody arrangements and decision making for kids. We deal with mental health professionals, financial experts, CPAs, valuations, all that stuff. And we also deal with the brown couch sometimes. So do try to work that stuff out at the beginning, amongst yourselves if you can. But if not, you got lawyers for a reason. And I’m not above sending a letter about the brown couch if need be.
So that’s the personal property furnishings. We can always tell lots more war stories about that. But let’s sort of turn to some questions that we’ve gotten. And so Brian, I’ll pose this one to you, then maybe vice versa for some other ones. We kind of addressed this one already, but let’s ask it anyways because it is an important issue. It says, somebody asked I think through our website, “If I move out of the home temporarily, will it be challenging for my attorney to gain me access to move back in?” That’s actually two questions, to gain me access, is one question. But will the attorney be able to get me to move back in, would that be challenging if you’ve already moved out?
Brian Walters:Yeah, it’s a good point. So getting access to the house, it’s sort of like we talked, get your stuff out. Get items out of the house and maybe some of the furniture. Yeah, that’s pretty typical. There might be some rules around it. There needs to be a third party there, or something along those lines, but an agreed list of things ahead of time, those type of things. But access isn’t going to be a problem typically. Moving back in, sort of we talked about this a bit before, but depends on why you left, right? I mean, if you run out of there because of domestic violence threat, sure, not a problem. I think if the judge believes that occurred and that’s the reason for it, yes, I think you’ll get right back in. And the other person, the perpetrator, will be kicked out.
If you just left because you got frustrated with each other, or you wanted to spend more time with girlfriend, or boyfriend, or something like that, maybe not. It depends a lot on the situation. But again, I would put your safety and your children’s wellbeing ahead of any calculations about moving back in. And again, exactly as Jake said, it’s just logistically difficult to start moving people back and forth for a judge if there’s a conflict. I mean, we’ve got to pick a date for one person to get out. And then what if somebody damages the house, or all those other kind of things? And so it’s just easier a lot of times for the judge to keep the status quo rather than trying to switch people back and forth, in my experience. Okay, so here’s a question. “Can I file for abandonment if my spouse left the house and has not helped pay the bills?”
Jake Gilbreath:That question can kind of be asked in both ways. Will I be accused of abandonment if I move out? Can I file for abandonment? So abandonment is technically a ground for divorce, that’s a longer discussion and a different podcast. But grounds for divorce kind of date back to times when you’d actually have to have fault for a divorce. If I’m going to get a divorce, I have to prove to the court fault like abandonment, or adultery, or cruelty. Texas has what’s called no-fault divorce. We use the term ‘insupportability’ in the Texas family code. So you’re not really filing for abandonment, there’s no legal action that I’ve been abandoned. The legal action is filing for divorce.
And if the spouse has left the house and not helped pay for the bills, then you’ll be filing for divorce. And part of that divorce action would most likely be going to a judge on temporary orders and saying, “My spouse has moved out, and that spouse needs to help pay for the bills because we’re married and this is our assets.” So that would be, you’d be filing for divorce and addressing that in the court system. But it would be filing for divorce that engaged the legal system, there’s not a cause of action for abandonment.
And then there’s one, Brian, we kind of addressed a little bit. “Can you force my spouse to leave the house?” You say, “I’m sorry, it’s not working out. I filed for divorce. And I’d really appreciate if you go get a place to go stay.” And your spouse says, “I’m not moving.” What happens then?
Brian Walters:The only person that can force your spouse out of the house is a judge. And sort of as we talked about, that kind of a descending order, if there’s been recent family violence, a court could do that basically right away. Much more frequent, there’s some type of temporary orders hearing a few weeks or a month or so after someone files for divorce. And then at that point, if either one of you want to not have the other person in the house, then the judge will make somebody move out of the house, so that’s the way to do it. And if you can agree without going to court, great. But that’s what it’s going to take otherwise.
And then last question, “I left the home for a few days after a domestic dispute and my spouse just changed the locks. What can I do to get access to my belongings?”
Jake Gilbreath: First off, we’re repeating ourselves, but it’s so important. If it’s a domestic dispute that involves violence, you need to consult with a lawyer right away, and your safety is paramount because one way back to getting into the house may be through an ex parte protective order or protective order. But you should particularly not self-help in a violent situation. The best way of going about getting access to your belongings is through the court system. Now would be a good time, if the spouse has changed the locks and you have some important belongings there, to start making a list while it’s fresh in your mind. In theory, although this is rarely the right move, in theory if it’s your house too and titled to you, you can change the locks right back.
It’s rare that drama is the right way of approaching a situation in a family law dispute. Even when the other side’s acting in bad faith or changed the locks and that wasn’t an appropriate thing to do, even when the other side’s not on good behavior, it’s always best for you to be on good behavior and to consult with a lawyer. There are remedies, back to those temporary orders that Brian was just talking about. That’s when it’s going to get addressed by a court system. It may feel very unfair before you get before a judge, depending on the situation. But I do encourage people to have faith in our legal system. My experience in practicing all throughout the state of Texas, and Brian, I know yours is the same, obviously it’s not in every single situation, but we have judges that really try to get things right.
They’re going to look at the whole situation, and if somebody’s being an absolute jerk and I can’t even get my toothbrush back, which is because I was staying in a hotel for a couple days, it’s just going to play into a judge’s decision. So take a deep breath, count to 10, consult with a lawyer, I guess is probably the best approach in those situations.
Brian Walters:Absolutely. Okay, well, that’s all we have for today. If you like what you’ve heard today, do us a favor and leave us a review. We appreciate all your feedback, especially when it helps us make a better podcast. If you have any follow-up questions to this episode or like to talk to any of us directly about your family law situation, reach out to us at podcast@waltersgilbreath.com. Or you can contact us directly through our website, waltersgilbreath.com. I’m Brian Walters, here with Jake Gilbreath, and thanks for listening.
For information about the topics covered in today’s episode and more, you can visit our website at waltersgilbreath.com. Thanks for tuning in to today’s episode of For Better, Worse, or Divorce, where we post new episodes every first and third Wednesday. Do you have a topic you want discussed or question for our hosts? Email us at podcast@waltersgilbreath.com. Thanks for listening. Until next time.
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