Saturday, June 10, 2006

Temporary Orders: Property Issues

After children issues, one of the most important issues decided on in temporary orders is which party will have use and possession of property while the divorce is going on and who will pay the debts.

The facts of each case make it hard to make any generalizations about the temporary disposition of property, but the following are some rules of thumb.

First, on the use of the house, the Judge will generally give the party who has the children the use of the family home. The reason, obviously is that the Judge wants the children's lives to be as stable as possible and he doesn't want the kids moving around unless absolutely necessary. Howver, if the home is the separate property (usually because it was owned in full prior to the marriage by one of the parties), then the Judge generally cannot order the party without the kids out of the house.

Another generally rule of thumb is that each party will be temporarily awarded the use of the car in their respective possession. This is usually not a contested issue, but sometimes one party may demand temporary use of a specific vehicle (such as the party with primary custody needing the minivan instead of the sports car).

The ongoing payment of debts (such as monthly bills) will also be decided during temporary orders. Often the sticker shock of trying to support two households is too much for the community budget to bear. Even though a party may be ordered to pay certain debts (such as credit cards)while the divorce is pending, they may not be able to afford to. The party may only be able to pay the secured debts (such as the car and the mortgage) to keep them from being forclosed on. Generally, if a party does not pay (with a few exceptions) general debts, this is not actionalble by contempt, because the Texas Constitution does not allow imprisionment for debts.