The Marital Home and Divorce - Answers From The Expert
The 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. » Return
to top
Related Articles:
Divorce Settlement Considerations
Divorce and Mortgages
Also see:
More questions and answers
Ask the Legal Expert a question
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.
For more information about Brette, see www.BretteSember.com.
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.
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