Among the Ask a Divorce Lawyer questions answered today by Cordell & Cordell attorneys:

• Questions about a mutually-owned home during a divorce
• My ex wife got a restraining order against me so I can't even go to our church. What can I do?
• I was awarded my 401(k) and pension in our decree.My has threatened to take me back to court to get half of it. Can she do this?
• I've been paying maintenance for seven years and will retire soon. What factors will determine my chances of ending or reducing maintenance payments when I am on a much lower fixed income?

Question: 

I have been divorced for two years. I am an occupant of a home that is owned as tenant in common with my ex-wife. I have a 75% share, she has a 25% share. Our divorce decree does not go any further or define anything beyond that. I've encountered some sticky situations and I need to know how the courts view the following topics. 1) Who gets to claim mortgage interest and real estate taxes? 2) Maintenance on the home. Who pays that? 3) Repairs such as furnace/roof. Who pays that? 4) Improvements to the home. Who pays that? 5) If one party pays extra towards the principal (mortgage payment) does that party then have an increased share in the ownership of the home? 6) If I wanted to "buy" her share, what is considered to be a reasonable way to calculate her equity?

Answer:

I practice law in Nebraska, not Minnesota, so I can give you some answers based on general divorce and/or property tenants, but you should consult a domestic litigation attorney licensed in Minnesota before taking action.

1. You could claim 75% of the mortgage interest and real estate taxes.
2. You live in the home, so are likely responsible for maintenance.
3. If she will not help pay for major repairs such as the furnace, then keep track of the costs and when you sell it, try to negotiate that amount from her share.
4. You are responsible for improvements to the home that you choose to make.
5. You do not get an increased share of ownership in the home by paying extra toward the principal. You do have a larger stake in the equity that has built up in the home. Her 25% stake in the ownership of the home will not be diminished.
6. Her equity would be 25% of the value of the equity when your divorce was finalized, at the very least. From there, you could use payments amounts she has (or hasn’t made) towards the mortgage to figure her current stake in the equity balance.

 Nancy R. Shannon, a Nebraska native, is an Associate Attorney in the Omaha, Nebraska office of Cordell & Cordell, P.C. She is licensed in the state of Nebraska where her primary practice is exclusively in the area of domestic relations. Ms. Shannon received her Bachelor of Arts degree from Doane College and her Juris Doctor from University of Nebraska – Lincoln, where she was a finalist in a Moot court competition and active in Client Counseling activities.

Question:

I've been divorce for 6 months and my wife has two restraining orders on me and won't even let me attend our church. She admitted in court I never hit or even threatened to her in our 20-year marriage, but she still got the restraining orders. I would just like to be able to attend my church if I could. What can I do?

Answer:

If there are two restraining orders in effect, you cannot attend the church if she is attending.  The time to contest the injunctions was when she filed the petitions.  At that time, you could have contested her allegations that the injunctions were necessary.  Now that the injunctions were granted, you cannot have any contact with your ex-wife (presuming they are no-contact orders).

You need to review the original order which will detail the distance that you must stay away from your ex-wife’s home and any location she is temporarily occupying.  If you violate the terms of the injunctions, you can be fined up to $1,000, or imprisoned for up to 9 months or both.  You cannot collaterally attack the validity of the injunction to avoid the punishment---meaning, you cannot say that the injunction is unnecessary if you are arrested for violating the injunction.  Injunctions in Wisconsin can be up to 4 years.  During that time, your ex-wife can petition the Court to modify the injunction or to dismiss the injunctions entirely; you cannot. 

Are there alternative times for service at your church?  If so, perhaps you can make arrangements with your church so you each can attend service at different times.  If the injunctions are no-contact orders, you cannot contact your ex-wife and you cannot have a third party contact her on your behalf except for your attorney.  Therefore, you may want to have your attorney contact her to discuss the arrangements for attending church.

Cordell & Cordell has attorneys licensed and located in Wisconsin who would be happy to assist you.

Question:

I was awarded my 401(k) and pension in my Nevada divorce decree. I have only been divorced a month and my wife already threatens to take me back to court and take half. Can she get half if it was awarded to me, and what can I do to protect my retirement?

Answer:

Each state has different laws governing property division.  I do not practice in your state so I can only speak to general practice.  It is important that you contact a domestic litigation attorney licensed in Nevada as the laws in your state may differ from what I refer to below.

Depending on your situation, the threats from your ex are probably just baseless threats.  Generally, property division is final as of the date of the divorce.  In my jurisdiction, neither party may come back to Court and reopen property division unless there was a mistake, inadvertence, surprise, excusable neglect, fraud, misrepresentation, or other misconduct of an adverse party, or another reason justifying relief from the judgment.  The Court wants finality of judgment, meaning, after the Court grants the divorce decree, the Court does not want either of you coming back to Court.  Parties already have the opportunity to motion the Court for modifications of support and placement in most states.  Purely from a judicial resources perspective, some decisions have to be final. However, this does not mean that the asset is then completely off limits for future litigation.  For example, if a party fails to pay a debt that he or she was ordered to pay at the time of the divorce or if a party accrues significant arrears in support, the Court may grant an interest in the asset to the innocent party.   You should contact an attorney licensed in Nevada and be sure to bring a copy of your divorce decree for him or her to review.  After describing the present circumstances and reviewing the decree, your attorney should be able to tell you whether anything needs to be done to protect your retirement.

Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin, office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.

Question:  

I was married for 25 years and have been providing maintenance to my ex-wife since our divorce was final in April 2003 and there is no set end date to maintenance. I plan on retiring in 3+ years. What factors in Missouri law determine my chances of ending or reducing maintenance payments when I am on a much lower fixed income?

Answer:

Per statute, Missouri Courts consider ALL relevant factors, including:

The financial resources of the party seeking maintenance, and his (or her) ability to meet his needs independently; the comparative earning capacity of each spouse; the standard of living established during the marriage; the obligations and assets of each party; the duration of the marriage; the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance; and the every popular and ubiquitous “any other relevant factor.”

The court may order the maintenance decreased, increased, terminated, extended, or otherwise modified based upon a substantial and continuing change of circumstances. This means not only must the change be ongoing, but it also must be significant.

Because I do not know all the facts of your case, I cannot give you legal advice. If you need additional legal advice, or wish to discuss your matter further, I suggest you speak to an attorney in your area. Cordell and Cordell, P.C. has many attorneys in Missouri who would be glad to discuss your case if you so choose.

William Halaz, III is a Staff Attorney in the Arnold, Missouri office of Cordell & Cordell, P.C. Mr. Halaz is licensed to practice in the state of Missouri. Mr. Halaz received his bachelor's degree in Political Science from Southeast Missouri State University. Then continuing his education, received his Juris Doctor from St. Louis University’s School of Law.