The Marital Home and Divorce - Answers From The ExpertThe following questions and answers concerning the marital home and divorce can help you understand some of the issues that need to be considered when dividing one of the biggest assets of the marital estate.
Topic: Can I make him move out before divorce? Linda's Question: We signed a pre-nuptial agreement before we were married and now we are talking divorce. I want him to leave my house and he says he has rights to stay in the house till we get a divorce. Is this true? Brette's Answer: If it is a home you owned before marriage and is in your name alone, you are within your rights to ask him to leave. If the home is jointly owned, then you can't force him to leave since he is an owner as well. If you want him to leave and he won't, you need to go to court to get sole temporary residence of the home while the divorce is pending. Best of luck with this. » Return to top How does a common law marriage affect division of the house? Sandra's Question: I am in a common law relationship and know I want out. The house is in my name, as I bought it 3 yrs before he moved in. He did give me some money to put on the mortgage (not the same amount I put into it 3 yrs earlier) and does help out with what he feels is his share of the bills, including the mortgage. I don't think he should get 50%. I also do not want any of his investments, RRSPs or pension, all I want is my house and my business. What should be his split in the house? And how do I make sure he doesn't come after my business if I am willing to not touch his money? Brette's Answer: You first need to find out if your relationship does constitute a common law marriage in your state. If so, you would proceed with a regular divorce and assets would be divided according to state law. He would be entitled to a portion of the value of the home. You would have a right to ask for a portion of his retirement accounts. If you are not considered married, you have no right to any of his personal accounts. He has no right to ownership in the home, but might have a right to be compensated for the funds he put into it. If you can't resolve this, you should go to mediation because you do not want to end up in small claims court. Can I make him leave if the house is in my name? Charlize's Question: How can I get out of a long term relationship (15 yrs) and keep the house (in my name) and keep the kids (came from me)? He hasn't worked in over 3 years and has a serious drug problem. I know he will fight tooth and nail, because he believes I am his free meal ticket. Brette's Answer: I am unclear if you are married. If you are not, all you have to do is evict him if you own the home. The kids are yours - he has no claim on them. If you are married, it is a different story. You need to file for divorce and make a motion for exclusive occupancy of the home. It may be in your name but if it was bought during marriage, it is a marital asset. You should consult with an attorney. Topic: Can I stay in the house during the divorce? Jamie's Question: I am living in husband's house. How long can I stay here once the divorce gets started? Brette's Answer: There's no set answer to this question. Technically I guess you can stay until he throws you out. It really depends on what else is happening. If the home is in his name and was purchased before the marriage, you may still be entitled to some of the equity if you helped keep it up or made the mortgage payments. You could also be given the right to live there by the court for a period of time. You should talk to an attorney. » Return to top Topic: Can I change the locks after he moves out? Jill's Question: Can I change the locks on my house after my husband moves out, but not yet divorced? Brette's Answer: The rules about this vary from state to state, so you should check with your attorney. You can file for exclusive residency of the home, which will then allow you to change the locks for sure. Who is responsible for the bills until the house sells? Barbara's Question: Our house was placed on the market 2 days after our divorce was final. My ex-remained in the home and will remain until the the house closes in June. Who is responsible for mortgage payments, property taxes and utility bills? Brette's Answer: You need to look at your divorce decree or consult your attorney. If you divorce is final, this has all been decided. » Return to top Can I keep the house if my husband's father purchased it? Nora's Question: My husband's father purchased a home for us to live in and keep our dogs. I am currently living here and my husband's father has told me I need to move out. I desperately need and want to keep the only part of myself left after 18 years of marriage. My dogs need a place to live and I have built myself a nice little business here and do not want to leave. HOW do I keep it? Brette's Answer: If you don't have a lease, then you have a month to month tenancy, which means you can be asked to leave with 1 month notice. You could try to negotiate with your in-laws and offer to pay them fair market rent on the property. You should talk to an attorney who can discuss your situation in depth and consider whether the home was purchased as a gift. » Return to top Am I responsible for repairs if he forced me to move out? Linda's Question: My ex stayed in our home, which we both still own. I was forced to move out and get my own place. We are in divorce proceedings and he wants me to pay 1/2 for home repairs done after I moved out. Am I responsible for any debt/repairs after I was forced out of the matrimonial home? Brette's Answer: You shouldn't pay anything unless ordered to by the court. How can I change our temporary house sharing arrangement? Michelle's Question: I am in the middle of my divorce and my husband is currently in school, and wants me to continue paying for the house until he finishes school. The court ordered that I can go back into the marital home, but I would be responsible for the payments. I would also have to vacate the home 3 weekends a month so that he can have access to the children. I can't live like this much longer. I feel I have no personal space, and on those weekends I have to gather all my personal belongings in my car and go rent a room. He eats my food, he know everything I am doing, and he uses my computer. What can I do? Brette's Answer: Your attorney needs to make a motion to have the arrangement changed. If it is not a healthy arrangement, it's not a good idea. » Return to top Who is entitled to the house when we divorce? Renee's Question: We are going through an ugly divorce! We bought a house together one year after we were married, and refinanced it a year later. The mortgage is in my name alone, but the deed and title is in both of our names. Who is entitled to the house? Brette's Answer: The home is marital property, and the mortgage is marital debt. Both will be divided by the court. This could mean one of you stays in the house and the other gets more of the other marital assets, or it could mean you sell the home and both take a portion of the equity. Good luck. » Return to top How do we handle it if I don't want the house? Holly's Question: Can I still get divorced even though the house is not settled yet? There is no equity in the house. I just want him to take the house and the debt with him. What happens at the prove-up in court? Brette's Answer: If you want nothing to do with the house, just say so. If he doesn't agree, then you will have to have a hearing so the judge can decide. Will a hand written note giving me the house hold up in court? Florence's Question: I have a note from my husband written a few years ago that I can have the house. It is not dated. Can it still be used? Brette's Answer: This is not a legal transfer of title in any way. Even if it were, the house is still marital property. » Return to top Do I have to give him a share if the deed is only in my name? Lauren's Question: My husband had me put the deed to the house in my name. His name is still on the mortgage along with mine, and it will be paid off soon. Can he make me give him his share of the house when it's paid off? Brette's Answer: The house is marital property and its value must be divided in the divorce. » Return to top What if the deed is in his name and he paid the mortgage? Katy's Question: When we built our house, my husband did a lot of the work himself or cashed in favors from others therefore he feels he has more rights to the house. He has been making all mortgage payments, while I have been paying all other bills. (We have separate checking accounts.) The house is in his name. We were married when it was built. Do I have any rights to the home if we divorce? Brette's Answer: Yes it is marital property. See an attorney. How do I remove his name from the deed and other documents? Mary's Question: I bought the house prior to marriage and added his name to the title many years ago. How do I get his name removed from the title and all other documents that link his name to my home? Brette's Answer: This will be part of your divorce decree. He'll be required to sign a transfer of deed. If he's on the mortgage, you will have to refinance. Does the house need to be sold right away? Tamara's Question: I run a business out of my family home. In a divorce, will I have to sell and give him part equity right away? Brette's Answer: It really is going to depend on your overall financial situation. If you want to stay in the home, there are certainly ways to work that out. You could negotiate a certain number of years of residence, or you could take title to the home in exchange for giving him other assets. Get an attorney and get some personal advice based on your situation. » Return to top Topic: Enforcing the sale of the family home Linda's Question: It has been over a year since my husband file for a divorce, and all we do is go to court, but nothing ever gets resolved. I am trying to sell our home, but he refuses to cooperate. The bottom line is that he doesn't want to split his pension money with me, and he is stalling as long as he can. Can I force him to sell the home? Will he be summoned to accept an offer, or can he keep refusing in order to stall? Please advise~ Brette's Answer: Generally, the only way a spouse can be required to sell the home is if the judge orders him to, and even if the court decided the home needed to be sold, the person wouldn't have to accept any offer. You need to talk to your attorney. Pressure him or her to talk to the other attorney and try to settle this. If the pension is the one point of contention, maybe you can work out a deal if there's something you're willing to move on. » Return to top What if we decide not to sell and I keep the home instead? Ruby's Question: In our divorce agreement, we agreed to sell the house and split the profits. Unfortunately, we haven't been able to sell the house. My ex has agreed to let me keep the house, and in return I am to give him a little cash and forgive some money he owes me. Does my decree have to be changed? My fear is that I give him the money and if I sell the house years later he will get 1/2 of the proceeds since it is recorded that way. Brette's Answer: If you've agreed to something different than the terms of your decree, you do need to submit it to the court and have it made official. Otherwise, he could take you back to court on a violation. Can I stay in the home until the kids leave? Veronica's Question: We have 4 children and a house that has the deed in both our names. Can I live in the house with the children until they become emancipated, or do I have to find someway to pay him half now (or sell)? Brette's Answer: It is common for the residential parent to have the right to live in the marital home until the children are grown. » Return to top Can he sell the house without my knowing about it? Stacy's Question: I believe my husband is going to file for divorce. I am going on a trip to see my parents, and I suspect he might try to sell our house while I am gone. I am not on the mortgage. We have lived in the house married for 10 yrs. Can he sell this house without my knowledge? Brette's Answer: If your name is on the deed, he can't sell it without your permission. You might not realize it, but it takes a long time for a sale on a house to go through - weeks. This isn't something he can do overnight. If the house is in his name only and there is no divorce proceeding started, he can sell the house. » Return to top Is a house located in a foreign country subject to division in divorce? Pamela's Question: My parents brought a home back in the 90s in Ecuador. How is that house impacted if they start the divorce process? Or is that something they need to settle themselves? Brette's Answer: The house is part of their marital assets and will be divided in the divorce. Just as if they lived in one state and owned a home in another state. What am I entitled to if he had the house before we got married? Donna's Question: We have been married for 24 years, and my husband owned the house prior to our marriage. I was employed part of the marriage, so combined incomes did pay the house payments, and he needed my signature to refinance. When we divorce, will I be entitled to anything from that house? Brette's Answer: There are two possibilities. Either the house has been converted to a marital asset (since you had to help refinance, this is a possibility) or you are entitled to a portion of the increase in equity since you helped pay the mortgage and presumably helped keep up the house. Get an attorney to help you.. » Return to top Will I get anything if we bought the home before we got married? Britnee's Question: I have been with my spouse for over 10 years, but just recently got married to him four years ago. I would like to know if I am entitled to any share of the home we bought and have been living in for over 10 years (even though we were not legally married when the home was purchased). I am not on the home deed but my spouse is the primary signer of the home and his mother is the co-signer. Will I be entitled to any share? Brette's Answer: You need to see an attorney. If you bought the home before marriage but in his name only, it is slightly complicated. You are definitely entitled to something, but you really need to talk to someone who can get the details and talk to you about what your state laws say. Does he have a right to enter if I was awarded the house? Connie's Question: I was awarded the house in our divorce agreement, with the contingency that it be sold after the kids have grown. His name is still on the deed, and he has been entering my house when no one is home, without my knowledge or permission. Does he have the right to enter because his name is on the deed? Brette's Answer: Your agreement should have stated that you have exclusive occupancy of the home, which means he can't come in. If it does not say this, you need to contact your attorney and get it changed. » Return to top He won't leave even though he signed an agreement to move. Adelia's Question: My Ex-to-be signed a stipulation agreement that states that he must move out 5 days after receipt of me buying him out of the home. Now he tells me that he plans on staying longer. Can I have him legally removed based on that agreement? Brette's Answer: If the stipulation has been submitted to and accepted by the court, then it's a court order and must be complied with. You need to go back on a violation. Can I buy out his interest in the house before divorce? Tina's Question: The mortgage to our house is solely in my husband's name, though the deed is in both of our names. I have some money from the sale of rental property that I had before marriage. We have agreed that I can buy our marital property with that money as down payment. How would I do this prior to the divorce without my investment becoming marital property? Brette's Answer: You have an attorney or mediator draw up a formal stipulation or settlement that covers this issue. » Return to top He wants to buy out my interest, but I want the house sold Kristin's Question: My soon to be ex wants to buy me out of the house, because he "likes it". I think that we should sell and split the money, primarily because I feel it would be more detrimental for the children to visit their father in their "old" home. I believe they would have difficulty understanding why daddy gets to stay in our "home" and we can't. Any thoughts or advice? Brette's Answer: There's no absolute answer to this. I understand how you feel about this, but it could be argued that seeing their dad at the old family home could provide them with a sense of stability when everything else in their lives is changing. The problem is going to be that when a court decides what will happen with the house, it's unlikely that the issue of how the kids would react would be considered. I'm not saying it isn't possible, I'm just saying it's unlikely most judges would want to make your husband move because you think it's not good for the kids. What you might consider doing is getting several appraisals of the home. Once your husband sees how much it's worth, and realizes what he would have to pay you to stay there, he might rethink his approach. You could also sweeten the pot by telling him you'll agree to longer visitation if he moves. You ought to consult with your attorney about this, and I also think this might be a good case for mediation. If you can't agree, you might want to consider seeing a child therapist who could help determine what would truly be in the best interests of the children - but you would need to prepared to hear an answer you might not like (that it might be ok for them to see their father at the old home). Good luck with this! » Return to top How do I go about buying out his interest in the marital home? Sally's Question: I understand that the equity is divided, and my ex wants me to buy him out his share. How does that work? I guess what I'm wondering is where do I get the money to pay him off? If I owe him $20K, do I get a loan, and will I have to refinance? Brette's Answer: There are several ways this can work. The easiest, and less expensive way is to take a look at all your assets, including equity of the home. You might be able to trade other assets for his equity in the home. Say for example, there is $20k of equity and you together own $30k of other assets. To buy out his 10k of equity, you would trade 10k of your interest in the other assets. You you walk away with 20k in equity in the home and 5k in other assets. He walks away with 25k in other assets. The other option is to take out a home equity loan to pay him off, or to use your own separate assets to do so. » Return to top What if he claims that the house is worth more than I am offering? Brenda's Question: In our divorce, we agreed to sell the house and split the proceeds. After the divorce was finalized, my father passed on and left me enough to potentially buy my ex's share of the house. I have made a very reasonable offer, but he is claiming that the property is worth much more, and rallying the neighbors to make offers to him. What can I do now? Brette's Answer: You should consider getting a valuation of the property, or asking the court to order one. The court then accepts this figure and he has to sell it to you for half of that. Usually each side presents a valuation and the court will often land in the middle. Topic: Joint tenancy with right of survivorship Ruth's Question: I was divorced in 1985. We both still own the home as JTWRS (joint tenancy with right of survivorship). He is getting remarried in about 2 months. Is there anything I can do to get my half share of the home value? What do I need to do? Brette's Answer: It depends on what your divorce order says. If he is going to live in the home, he could refinance and pay you your portion. If you're going to live there, you could do the same. Talk to an attorney who can interpret your order for you. Topic: Will I owe capital gains taxes if I'm awarded the house? Autumn's Question: My husband and I are divorcing, and the decree states that I will receive the condo we have been renting out and he will receive the home that we lived in. Are there any tax issues that I need to be aware of? I read something about property received in a divorce settlement having a capital gains tax associated with it. Can you help? Brette's Answer: There are no taxes assessed on transfers made as part of a divorce. You only have to pay capital gains taxes if you sell the property and have a taxable gain. Topic: His ex placed a lien on the house I was awarded Cady's Question: I was awarded the house in the divorce settlement. I then discovered that his ex wife had filed a child support lien on property. When we went to court, the judge said that the lien held, so if I sell the house I have to pay the child support lien. If I do this, I can't afford to pay closing, realtors fees, or repairs, because I live on Disability. Any advise? Brette's Answer: You need to talk to an attorney. Depending on the order in which things happened, you could sue your ex for the value of the lien on the house, since you were awarded the house. Good luck. » Return to top Will I have to pay the tax lien if I'm awarded the house? Simone's Question: My husband just received a notice of a tax lien on our house. We agreed that he would give me the house in the divorce. If I get financing for the house, will I have to pay his IRS lien as well? Brette's Answer: A tax lien must be paid. No way around it. Good luck. Is he responsible to help cover the increasing taxes and insurance? Joyce's Question: Both of our names are still on the deed, but I remained in the house after our divorce. There is no mortgage, but taxes and home insurance have gone up over the years. Can I get him to pay some extra now to cover the increase in the costs? Also if I decided to sell the house, will he be responsible to pay for part of the new mortgage since my daughter will still be living at home? Brette's
Answer: No, you can't get any more money for the increase
in the cost of living. If you want to sell the home, the equity in
it would be divided according to your judgment. It's unlikely you
would be entitled to payments for another mortgage, unless your
judgment orders him to do so. See an attorney.
Related Articles: Brette Sember is a former family and
matrimonial attorney and mediator, nationally recognized expert, and author of
many books including
The Divorce Organizer & Planner,
No-Fight Divorce, and
How To Parent With Your Ex.
This column provides general information about the various aspects of divorce. It is not intended to take the place of legal counsel and should not be considered personal legal advice. For specific recommendations concerning your situation, please retain experienced legal counsel. WomansDivorce.com and Brette Sember disclaim any liability from any claim arising from any information contained in this column. This column is not a substitute for legal advice. Divorce
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