Rebecca Zung’s Complete Guide on Getting Leverage on Divorce Cases

by Peter Jason Content Enthusiast

When marriage, civil union, or cohabitation go up in smoke, several patrimonial aspects should be taken into account. The first of all is to decide who is entitled to the family home.

In the event of separation or divorce, the judge decides on the housing assignment or assigns the property's provisional enjoyment to one of the spouses (or parents in the case of an unmarried couple with children).

The provision aims to ensure that the residual family unit (foster spouse and any children) will have the same domestic life environment enjoyed during the marriage.

It is precisely on the marital home assignment that the separations between spouses lead to real judicial wars. Together with the children's custody, the assignment of the marital home becomes, therefore, the true "bone of contention" in the context of separations and divorces.

The attribution of the right to continue living in the family home is independent of the property regime chosen, the actual owner (or holder of the lease), or whoever put money there.

The following insights are learned by America’s top 1% divorce attorney, Rebecca Zung who specializes in the family court for her legal counsel. Rebecca Zung also frequently writes and speaks on the subject of divorce, narcissistic partners, and getting divorce from narcissists in a matrimonial affair.

Zung graduated cum laude from University of Miami School of Law and has led a coveted profile as an attorney. She also represented Arnold Schwarzenegger’s god-daughter in court. Additionally, she has been rated as U.S. News and World Report – Best Lawyers in America 2018 and 2019. She is the author of bestselling book, NEGOTIATE LIKE YOU M.A.T.T.E.R.

If there are children

In these cases, the law gives preference to the parent to whom the children are entrusted or with whom they live together, even if they are of age. In the case of separate custody of the children, i.e., if one or more children have been entrusted to the mother and one or more children to the father, the judge will have to decide case by case taking into account the age of the children, the educational and emotional needs, the conditions health, etc.

If there are no children

The most recent orientation denies the right to live in the family home to the partner who does not own it. If the spouses are co-owners of the family home and have adequate income, the judge cannot assign the house exclusively to one of them: the parties must decide freely and, if they do not find an agreement, they can ask for the division of the property. To maintain the house's right, the assignee must live in it, making it his habitual residence. The assignment of the house also requires a personal use of the same. It is, therefore, not possible to lend or rent it to others.

The ordinary expenses of the family home (ordinary maintenance, bills, heating) weigh on the occupant; the extraordinary ones (for example, renovations) must be shared by 50%.

If the house is for rent.

Suppose the family home is rented with a contract in the name of one or both parents. In that case, the assignment provision determines by law a transfer of the contract in favor of the assignee who takes over the tenant's position and who must be starting from that moment, arrange for the payment of rent and operating expenses; this will result in the termination of the lease relationship with the original tenant. The assignee must communicate his takeover to the landlord, who will be able to assert the same rights against the assignee from that moment (payment of the rent, communications of any kind, termination) that he was entitled to towards the tenants or one of them before the provision of allocation Must the provision of allocation be transcribed?

If the family home is owned by one of the spouses or jointly owned, the assignee who wishes to enforce the provision of the assignment against third party buyers, or whoever intends to establish other real rights over it, must provide, at his own expense and expense, the transcription of the assignment provision (as well as any subsequent revocation) in the public real estate registers.

For cohabitants

In the case of the house's purchase, if the cohabitants decide that the property is in the name of both, there is greater protection given that each can boast a real right on a share of the property.

On the other hand, the purchase is concluded by only one member of the de facto couple; by participating only financially in the sale or contributing following the payment of the mortgage payment required for the purchase, the situation becomes complicated.

In the event of cessation of the emotional bond, one of the main financial problems that the cohabitants find themselves facing concerns the fate of the property purchased by them, together or in isolation by only one of the two. The choice to be made on the occasion of the couple crisis is based on the cohabitants' free agreement, as they cannot appeal to the judicial authority to decide on the assignment of the property, as happens in cases of separation divorce between spouses.

Certainly, an agreement to this effect taken in advance could facilitate the resolution of such disputes. For example, in the cohabitation contract, the couple may have established the methods of use of the common home, even in the event of separation.

There are, however, some attention, which the notary may suggest, to be used when you decide to buy a house together to ensure the fair division of assets and have fewer problems in the event of separation.