Ask a Lawyer by Richard Alderman

If you file for bankruptcy, you probably will not lose your house

Q. I am way over my head in debt and I have been told bankruptcy is the best way to get back on my feet. If I file bankruptcy, will I lose my house?
A. You will not necessarily lose your house simply because you file bankruptcy. In Texas, your homestead is “exempt” property. This means that your home does not automatically go to your creditors if you file bankruptcy. The only parties who may take your house are creditors that are not subject to this “homestead exemption.”
For example, a credit card company is subject to the state’s exemption laws, and cannot take your house as part of the bankruptcy. On the other hand, a lender that loaned you the money to buy the house, a bank that made a home equity loan or a contractor who improved it, all probably have a a lien on the property that is not subject to the our exemption laws. This means that if you filed bankruptcy, those types of creditors would have the right to take the property. As long as you are willing to reaffirm your mortgage or other loan and continue making payments, however, you should be able to keep your home. I suggest you speak with an attorney who is board certified in consumer bankruptcy.
Q. I own my home. I am thinking about letting my boyfriend move in with me.  Some friends have warned me that if he stays a certain period of time, he can claim “common law” marriage and be entitled to half of my home.  Is this true? How many days must he stay—one week, one year, or seven years?
A.  It is not true, and it is a very common misconception about the law. When it comes to common law marriage, there is no such thing as a “one week rule,” a “seven year rule,” or any other number of days rule. A common law marriage is not based on how long you spend together.
To have a common law marriage, you must meet three requirements: you must agree to be married, hold yourselves out as married, and live together as husband and wife. You can live together forever and not have a common law marriage, as long as you do not want to be married. On the other hand, if you live with each other a week, agree to be married and tell everyone you are married and have a common law marriage.
But more importantly, however, even if you were married your husband would not have an interest in a home you owned before marriage. Property owned before you are married is “separate” property and a spouse does not obtain an interest in it simply by virtue of a marriage.
Q. My father’s will left me $25,000. What else am I entitled to? My brothers and sisters get much more than I did.
A. When a person dies with a will, it is the will that determines how the deceased’s property is divided after death. All of the people who receive property pursuant to the will are called beneficiaries. If the will leaves one beneficiary a sum of money that is all that person is entitled to. It doesn’t matter if others receive more or less than that person. There is no law that says brothers and sisters must receive equal shares of the estate.
The only additional property you might be entitled to would be property left to you outside of the will, such as in a joint account or an account on which you were the beneficiary. For example, your father might have a life insurance policy that names you as the beneficiary. The proceeds of that policy would go directly to you and would not be part of the estate, distributed in accordance with the terms of the will.
Q. I have been living in the same apartment for almost a year, just paying rent month-to-month. In June, my landlord and I agreed that we would extend the agreement until February at the same rent. Now the landlord says he wants me out next month. He says our oral agreement is not enforceable.
A. As a general rule, agreements dealing with land, such as a sale or lease, must be in writing to be enforceable. There is an exception, however, for certain leases. A residential lease for a year or less is enforceable even if it is not in writing. If you and your landlord have an agreement from June to February, it is enforceable. Of course, you will have to prove that the agreement exists.
Do you want to know more about your legal rights? Visit my website, www.peopleslawyer.net

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