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Who Gets the House? | Divorce in Washington State - YouTube
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who gets the house in your divorce in
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washington state your lawyer
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just kidding sort of anyway these are
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the factors our firm believes
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judges weigh most heavily they're in
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order from the most important to least
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first factor enforceable agreement
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if the parties enter an enforceable
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agreement regarding the house
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the judge almost always adopts it
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enforceable agreements can take a bunch
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of forms examples include prenuptial
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agreements post-nuptial agreements which
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are prenuptial agreements signed during
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the marriage
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separation contracts which are contracts
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signed when the parties informally break
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up
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and settlement agreements meaning
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agreements signed during the divorce or
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made in court on the record so whoever
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you've agreed should get the house
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probably will assuming the agreement is
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signed or on the court record
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this is one instance where you get to
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tell the judge what to do you probably
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shouldn't make it a habit
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second factor one party's separate
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property
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courts usually award each spouse his or
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her separate property and divide the
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community property 50 50.
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if the house is entirely one spouse's
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separate property
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that person almost always receives it
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unless the parties agree otherwise
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if you want to learn more about how
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washington determines whether
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property is separate or community we
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have a free article on our website
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third factor partly separate partly
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community
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[Music]
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often the house is partly separate
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property and partly community property
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in that scenario the spouse with the
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separate interest is more likely to
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receive the house though
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the outcome is less certain than if the
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house were completely separate property
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for example the down payment may have
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come from one spouse's separate
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pre-marriage funds
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but the mortgage might be community debt
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the party who paid the down payment with
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separate pre-marriage funds
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is more likely to get the house if
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that's you it means
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you get to kick the other side out of
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the house eventually and
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really it's the judge who's kicking the
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other side out
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fourth factor who can afford
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courts try to avoid awarding the house
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to a party who can't afford it
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this is especially true when the
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mortgage is in both parties names
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if the mortgage is in both people's
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names failure to pay would hurt both
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people's credit scores
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this isn't as likely to be relevant for
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mid-length or long marriages
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because the lesser earning spouse
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usually receives child support and
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spousal maintenance or alimony
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that often makes the home equally
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affordable to either party
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but in dissolutions of truly short
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marriages there tend to be no children
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or maintenance
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in those cases the higher earning spouse
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generally receives the house
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unless it's the other party's separate
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property or the court forces the parties
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to sell it
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if neither party can afford it more on
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that later patience it's a virtue
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but maybe if you were more virtuous you
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wouldn't be in this mess too far
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that's too far that's too far okay
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you're right but you got to have a sense
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of humor you gotta laugh to get through
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this you know
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you should put a joke in the comment
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section but not about me
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maybe about somebody else fifth factor
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keep the business running
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if one spouse runs a business closely
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entwined with the house
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that person is likely to receive both
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the house and the business
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an example would be a spouse who runs an
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adult care facility from the family's
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spare bedrooms
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or maybe a daycare sixth factor keep
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kids in the family home
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if the parties have kids together judges
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try to keep the kids in the former
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family home
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this is for the children's comfort and
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emotional stability net result the party
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who receives primary care or custody
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is likely to receive the home as well
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courts
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especially emphasize this factor when
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deciding who gets the home during
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temporary orders
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it's listed here as the sixth factor but
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it probably rises to the second factor
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when judges or commissioners
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are making temporary decisions temporary
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orders by the way are something a party
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can request during the penancy of the
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case
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the average divorce takes almost a year
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here are you kidding me
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come on you knew how long it takes
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i thought it would be funny you know you
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know
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as you can probably imagine that's a
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long time to wait for certain kinds of
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relief
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parties sometimes need temporary orders
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to help get them through that year
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seventh factor avoid an additional move
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courts also err on the side of
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minimizing disruptions to the parties
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if only one party is currently in the
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former family home he or she is more
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likely to receive it
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doing so avoids an additional relocation
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additional notes
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note number one courts rarely forced to
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sell
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historically washington's courts have
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been extremely reluctant to force the
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sale of real estate
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this makes intuitive sense people become
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emotionally attached to their homes and
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land
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people like their patches of dirt
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selling real estate also comes with
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transactional costs of about eight
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percent of the sale price
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excluding federal income tax federal
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income tax applies to the extent
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that the parties don't use the proceeds
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to purchase a new primary residence
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if they don't roll the funds into a new
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home it can sometimes
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increase the cost of selling the home to
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over 35 percent of the sale price
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wow wow was right that's a pretty
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expensive way to divide property
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better to award the house to one of the
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parties and avoid the transactional
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costs if possible
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courts can nonetheless order the sale of
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the home when the parties agree to it
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courts can also force the parties to
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sell the home if the court believes it's
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justified because of the limited
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alternatives to fairly dividing the
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party's property if you're curious what
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a fair division of property looks like
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our website has an article and video on
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the basics of property division
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note 2 valuing the home
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at a contested trial the court typically
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needs to place a value upon the home if
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it's community property
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valuing how much each party is awarded
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is how the court figures out whether the
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awards are fair
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if the court doesn't have a value for
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the house it'll probably have to have it
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sold so the parties can evenly divide
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the proceeds
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as mentioned selling the house is bad
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because of the transaction costs
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so give the court a house valuation to
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use high standards apply to real estate
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valuations in court
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tax assessments and lackluster analyses
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are inadmissible to prove fair market
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values
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and comparative market analyses come
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into evidence only under certain
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conditions
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this might mean automated estimates from
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websites like zillow and redfin
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are also inadmissible picky judges can
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be such a pain
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sort of in case any judges are watching
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this
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the gold standard for valuing a house is
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a fair market appraisal from a licensed
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appraiser
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washington courts have allowed parties
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to testify about their opinions
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on the value of assets but those cases
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appear to have stretched evidence rules
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regarding normal people's testimony and
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expert testimony
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to reach that result these cases are
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also older than the current version of
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washington's evidence rules and might be
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outdated
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best to get a licensed real estate
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appraiser note number three
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temporary orders supposed to be
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irrelevant at trial
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the law prohibits temporary orders from
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prejudicing a party's arguments at trial
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that means a trial judge shouldn't
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consider who's in the former family home
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if the spouse gained that exclusive use
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through a temporary order
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this is because temporary orders are
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issued quickly and without the
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procedural safeguards
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available at trial many trial judges are
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unaware of this law wow
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who's taking off judges now i'm making a
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valid point if you want the court to
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know about this rule make sure to
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mention it
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you should put it in your trial brief
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and closing argument that's it
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hopefully this was helpful our firm
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believes in making quality legal
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information available for free online
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for more visit the resources section of
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our website genesislawfirm.com
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from all of us at genesis best of luck
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with your family law matter
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you
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