Love and Real Estate: I am in a divorce with my spouse, but I don’t want to sell our house yet because I am worried about the impact selling will have on our kids. What can I do?

by | Jan 23, 2013 | Uncategorized

By Shawn Weber, CLS-F*

It is possible to get what is called a “deferred sale of home order”. California Family Code section 3800(b) provides for this option as follows:

‘Deferred sale of home order’ means an order that temporarily delays the sale and awards the temporary exclusive use and possession of the family home to a custodial parent of a minor child or child for whom support is authorized under Sections 3900 and 3901 or under Section 3910, whether or not the custodial parent has sole or joint custody, in order to minimize the adverse impact of dissolution of marriage or legal separation of the parties on the welfare of the child.

Section 3800 and related sections basically codify the holding of In re Marriage of Duke (1980) 101 Cal.App.3d 152, 161 Cal.Rptr. 444. The Court in Duke wrote:

Where adverse economic, emotional and social impacts on minor children and the custodial parent, which would result from an immediate loss of a long established family home are not outweighed by economic detriment to the noncustodial party, the court shall, upon request, reserve jurisdiction and defer sale on appropriate conditions.

[Duke at page 155.]

In essence, the intent of the statute is to minimize the impact on the children by awarding temporary use and possession of the family residence to the custodial parent. (A “custodial parent” is the party awarded either sole or joint physical custody of a child. [See Cal. Fam. Code 3801 (a).]) This house is then sold at some future time.

Before the Court will make a deferred sale of home order, the court must first determine “whether it is economically feasible to maintain the payments of any note secured by a deed of trust, property taxes, insurance for the home during the period the sale of the home is deferred, and the condition of the home comparable to that at the time of trial.” [Cal. Fam. Code 3801.]

In making this determination, the Court has to consider each of the following factors:

(1) The resident parent’s income.

(2) The availability of spousal support, child support, or both spousal and child support.

(3) Any other sources of funds available to make those payments.

[Cal. Fam. Code 3801(b).]

The Family Code specifically describes the legislature’s intent regarding the economic feasibility test to accomplish all of the following:

(1) Avoid the likelihood of possible defaults on the payments of notes and resulting foreclosures.

(2) Avoid inadequate insurance coverage.

(3) Prevent deterioration of the condition of the family home.

(4) Prevent any other circumstance which would jeopardize both parents’ equity in the home.

[Cal. Fam. Code 3801(c).]

If the Court is satisfied that the deferred sale is economically feasible, then it has to ask the following questions:

(1) How long has the child lived in the home?

(2) What is the child’s grade in school?

(3) How close is the residence to the child’s school or daycare?

(4) Was the house modified to accommodate a disabled child or a disabled custodial parent?

(5) What emotional detriment would there be to the child if he/she changed residences?

(6) How close is the house to the custodial parent’s work?

(7) How financially able are the parents to obtain suitable housing?

(8) What tax consequences would be experienced by each party as a result of the deferred sale?

(9) What other “just and equitable” factors are there for the court to consider regarding a potential deferred sale.

[Cal. Fam. Code 3802.]

Once the Court has considered all of the required factors, then it can make its order. The order has to spell out the duration of the deferral and what each party has to do to maintain the residence. Usually, the “in-spouse” has to pay the costs of living in the residence to include the mortgage, property taxes, HOA, etc.

Now, the parties can always agree to a deferred sale without the Court ordering it if they so choose. They would just want to also carefully consider the factors described above as well. It would not due for a party to insist on a deferred sale of home order that simply was impossible financially.

One important point to consider: In my experience, the children are far less emotionally impacted by a move than the parents realize. It is important when considering a deferred sale of home order, to ask whether the deferred sale is desired because the kids need it or because a parent is having a hard time letting go of the house. Often it is better to just sell the house as soon as possible (you can visit https://www.housebuyersofamerica.com/sell-my-house-home to learn about a possible way of doing this). It is common for people ton entangle their emotions with things. Perhaps we will make seriously flawed financial decisions in order to hold onto a thing like a house. Remember to really think about the decision of a deferred home sale. If it doesn’t make sense financially-then it won’t help the kids either. In fact, an economically imprudent deferred home sale can hurt the kids a lot more than it will help.

Other resources regarding deferred home sales:

In re Marriage of Braud (1996) 45 Cal.App.4th 797, 53 Cal.Rptr.2d 179.

In re Marriage of Boseman (1973) 31 Cal.App.3d 372, 107 Cal.Rptr. 232.

In re Marriage of Herrmann (1978) 84 Cal.App.3d 361, 148 Cal.Rptr. 550.

In re Marriage of Stallworth (1987) 192 Cal.App.3d 742, 237 Cal.Rptr. 829.

For more information regarding a deferred home sale, contact attorney Shawn Weber at 858-345-1616 or visit our website at www.bravewebermack.com .

*Certified Specialist – Family Law

The State Bar of California Board of Legal Specialization.

SPLIT … a film for (and by) kids of divorce

by | Dec 4, 2012 | Uncategorized

I came across an excellent video about children going through a divorce or custody battle.  It is “[a] candid, poignant, and often humorous film about kids and divorce… from the kids’ perspective.”

This is an excellent film and should be required for any party going through a custody battle. It’s so important to see it from the kids’ perspectives.

Here is the link:

http://www.kickstarter.com/projects/1074778576/split-a-film-for-and-by-kids-of-divorce?ref=live&goback=%2Enmp_*1_*1_*1_*1_*1_*1_*1_*1_*1

 

 

It’s Official: Parental Alienation Syndrome is NOT a Psychological Disorder

by | Sep 29, 2012 | Uncategorized

So it’s official.  The American Psychological Association has made it clear that Parental Alienation Syndrome (PAS) will not be included in the forthcoming DSM-V as a psychological disorder.  Frankly, I am relieved.

Read about it here:  http://www.huffingtonpost.com/2012/09/21/parental-alienation-is-no_n_1904310.html

I have seen some very alienating behavior over the years in my family law practice.  It comes from both genders and every time it comes up, a child is harmed.  Sometimes it is driven by emotional issues such as addiction, abuse or even a personality disorder.  More often than not, however, it is just because someone is being mean by putting their poor emotionally defenseless child in the middle of their divorce.

To get an idea of what Parental Alienation Syndrome (PAS) is, here is an article from PsychCentral.com:  http://psychcentral.com/blog/archives/2008/02/13/what-is-parental-alienation-syndrome-pas/

PAS has not been well received in the California courts.  For one thing, the science is not very good and is not deemed as sufficiently reliable for use in custody proceedings.

Here are some links to sources by skeptics of Parental Alienation Syndrome:

I have had many potential clients call me wanting to launch a legal campaign in family court based on PAS.  I try to explain that the science is considered unreliable.  However, these parents often feel so convinced that they are victims of PAS that they won’t hear anything else.  When I start to explain that PAS is not a recognized psychological disorder, I am quickly written off.

I try to explain that the BEHAVIOR, without talking about the label, is what counts.  It is universally accepted that exposing children to alienating behaviors is harmful to them.  We can hang our hats on that concept in court rather than getting caught up in the label of a so-called syndrome.

As a caution, experience has also shown me that many parents who complain of PAS often miss the point that it is quite possible that the child is alienated because the alienated parent truly IS terrible for that child.  It is not uncommon for an abuser to complain that the other parent is alienating. But that’s a discussion for another day.

My recommendation to all parents in difficult custody cases is to focus on the undesirable behaviors and not assign psychological labels.

My brother, in describing how he can spot an emotional problem without being a trained psychologist, relates the story of how a mishap on a swing resulted in his own self-diagnosis that his arm was broken.  How was this child able to diagnose his fracture without being an M.D.?  He simply looked at his arm and noticed that it was bending at a forty-five degree angle the wrong way.  No medical books required — his arm was broken!  It’s not much different in figuring out that there is a serious problem in a custody battle.

I have observed that most cases where alienating behaviors occur often involve psychology that is more reliable than the very unreliable “unscience” of PAS.  For instance, there is often abuse of a parent or the children.  Very often substance abuse is involved.  Perhaps one or both parents suffer from a personality disorder.  I don’t need the en vogue diagnosis of a psychological disorder to show the court that there is a problem and that a child is suffering.  Just like my brother’s childhood diagnosis of his own broken limb — Judges don’t need it either.

Here’s an idea. When there is bad behavior in a custody battle — the Judge should simply call it out and put an end to it. You don’t need a DSM diagnosis to conclude that it is bad for kids if one parent is on a campaign to alienate the other parent.  It’s just rotten, nasty and mean behavior. Period. This is not about gender, because I see rotten behavior from moms and dads equally. Where I practice family law in San Diego, it is almost standard in every case that there is an order that neither parent shall speak negatively of the other parent in the hearing or presence of the child. I believe a child has a right to draw his/her own conclusions about a parent without being subjected to either parent’s mean-spirited histrionics — no DSM diagnosis required. As Bob Newhart would say, just “stop it!”

[youtube=http://www.youtube.com/watch?v=Ow0lr63y4Mw]

 

6 Tips to Handle Mother’s Day and Father’s Day After Divorce

by | May 10, 2012 | Uncategorized

As promised, here is another article from Carolyn B. Ellis with tips for handling Mother’s Day after divorce.  These are very good tips.  I hope they are helpful!

http://www.selfgrowth.com/articles/divorce_politics_6_tips_to_handle.html

If you are or someone you know is having trouble making plans for Mother’s Day in the context of a legal custody dispute, call Shawn Weber at 858-345-1616 for a free telephone consultation.

www.bravewebermack.com