Marital Home Foreclosure

IF the marital home is noticed for foreclosure before the divorce is final, does the non-(marital home)residential parent still have an argument for proposed "value" from when the divorce proceedings began based on an appraisal done 2-3 years ago?

Does anyone have the rule governing this?

If the divorce isn't final and the home is lost to foreclosure before it is, what value is the home? You can't value something today based on an appraisal of 3 years ago.  There would be no equity (if it is lost due to foreclosure).

Why is the home being lost? Was it court ordered for one person to pay who refused or both to pay and it was a financial impossibility?   Or did neither pay?  That  could make a difference.

thanks; OC is attempting to  make an argument her client is owed money (~$50K), because the home was neglected and purposely allowed to go into foreclosure.  I'm not sure how they are planning on proving that; thought I would ask if there is any legitimate claim.

There was no court order stating anyone should pay for it.  STBX was arrested on DV charges and removed from the home.  The proposition of maintaining the marital home with one income became virtually impossible. It will be hard to prove either side (maintaining v purposeful neglect).

It would be a dissipation of assets argument-  If ex was removed from house- and you were in the house- are you saying you just abandoned it?  ( didn't list for sale, nothing)

Or you lived in the house without paying until it was foreclosed?    I could present a pretty good argument against you based on the current value of the house and how much equity should be in the house as you had a duty to maintain an asset of the marriage or do something about it ( petition the court for contribution, list it for sale)- not just live in it payment free until thrown out. ( if that is what you did).

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0061/SEC075.HTM&Title=->2009->Ch0061->Section%20075#0061.075

(h)  The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home.

(i)  The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.

Okay, the plot thickens.  Here's a little more background.

Since STBX has more money than I do, they have been trying to starve me into submission. I ended up (unfortuntely) being pro se.  In addition, things got harder by getting laid off.  I was under employed (had part-time job working nights) for three months.  During this time, I missed a court date with the GM.  OC did a good job of representing her client and had the book thrown at me.  My timesharing was altered and CS was based on previous income. Eventually, I was fortunate enough to gain FT employment again.

As a result, I could not afford to maintatin the maritial residence. In addition, the residence has depreciated as a result of the real estate market. The STBX did ask on several occassions to sell the marital home. However, with it being worth less than we owed, credit already ruined, and I offered the home to the STBX on each occasion without anything in return; she refused to take it.

So, yes, I lived in the marital residence until the home was foreclosed on.

I realize no can predict what the judge will rule. How do the arguments stack up?

I might make an economic arguement that if you were ordered to sell it last May 09 when it was worth apparently 500,000  and you let it go and it got $100,000 less that its entirely your fault it got 100,000 less? 

I would rethink making any type of argument that it is her fault that you missed a court date, the amount of your child support, etc and rather think of something ingenenious as to why you refused to sell the home and lived there , rent free instead.

Help_Mike:

IF the marital home is noticed for foreclosure before the divorce is final, does the non-(marital home)residential parent still have an argument for proposed "value" from when the divorce proceedings began based on an appraisal done 2-3 years ago?

Does anyone have the rule governing this?

I am familiar with one specific case in my state (Indiana) where a spouse was held responsible for paying out defined equity even though they had allowed the house to go into foreclosure.  The court's reasoning was that the equity was lost only because the spouse occupying the house was ordered to make the mortgage payments and did not.  Therefore the equity was lost due to that negligence.  In that case the home had (even after selling expenses and a lowball appraisal) a clear 20k equity.  However, the spouse who occupied the home simply stopped making the mortgage payments, the home was foreclosed upon, and the equity lost.

However, that was long before the housing "bust".  Its quite probable/possible that an appraisal from 2-3 years ago is not at all valid today.  Therefore I think it would be a seriously "iffy" proposition to assume that the other spouse could be held to a buyout of equity.

Mike, I was in the SAME situation /same state many years ago.  Here is the way it was written in MY Settlement: 

REAL PROPERTY. Both parties stipulate and agree that neither the Husband or the Wife are currently residing at the family home at [full mailing address], that the family home is currently in foreclosure from the lending institutution and no agreement between the parties can exonerate either from liability for any deficiency judgement, the parties agree that in the event there are any surplus funds resulting from the foreclosure sale, they will share equally one half the net proceeds to each.  Either or both parties may file bankruptcy and discharge any debt which may be owed to the other on this real property.

No excuses; I screwed up and definitely paid for my mistakes-things are the way they are.  I have to believe the circumstances of being laid off, and no longer being able to afford the residence would suffice. It's simple, straight forward, and something I can easily prove.  I could be wrong; it wouldn't be the first time.  My ace in the hole is even if I end up with all of the debt and owing her the equity.  I will end up having to file for bankruptcy anyway.  I cannot afford to take on the ~$150-200k she's seeking total.

BD63:  I wish I could have gotten this thing to settle.  We are now headed into our third day of trial next month. We're attornies dream clients-more cash than brains. Unfortunately for me, the STBX has more cash than me and her atty has more brains.  Thank goodness for this board and the people on it.