The Marital Home and Divorce - Answers to Your Questions

These questions and answers concerning the marital home and divorce can help with the various issues that need to be considered when dividing one of the biggest assets of the marital estate. You'll find information on determining who gets the house, the importance and implications of a quit claim deed, how the equity can be divided, and mortgage issues you need to be aware of. 

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FAQs about the Marital Home and Divorce

Find out about staying the in house during the divorce, who gets the house, who pays for what, and more with these answers by Brette Sember, J.D.

Leaving the Home / Who Gets to Stay in the House?

Who is responsible for bills and repairs?

Who gets the house?

Issues with how the deed is titled

Selling the marital home

Factors affecting rights to the marital home

Property owned before marriage

Buying out the other spouse's interest in the house

Post-divorce property issues

Who Gets to Stay in the House?

Will it hurt my case if I move out before filing for a divorce?

Sally's Question: If I move out before divorce, will it hurt me when filling for divorce?

Brette's Answer: I recommend you talk to an attorney before doing anything. In some jurisdictions and situations moving out can be detrimental to your case.

Can I force my husband to leave?

Linda's Question: I am going thru an ugly divorce. The marital house is in both our names. Neither of us wants to leave the home. Can I force my husband to leave?

Brette's Answer: You can get an order of temporary exclusive occupancy from the court. Courts recognize it is unhealthy for people in high conflict to remain in the same home.

Can I make him move out of MY house 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 it true he can stay here?

Brette's Reply: 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. Once you file for divorce your attorney can make a motion for exclusive occupancy of the home, forcing him to leave. Best of luck with this!

How long can I stay in the house during the divorce?

Diane's Question: My husband just told me last night that he is divorcing me. How long can I stay in our home during this time? I have nowhere else to go to.

Brette: There's no set answer to your question. You should see an attorney to discuss your rights. If the house was acquired during your marriage, both of you have equal rights to the marital home until a court decides otherwise. An attorney can help you decide if you should seek a temporary order giving you residency in the home.

Technically if he owns the home, 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 really should talk to an attorney.

Can he keep coming back to take things from the house?

Amy's Question: If the wife is living in the house during the divorce, is it legal for the husband to enter and take things when the wife not at home and no knowledge of him entering? He was caught on security cameras trying to get into the cars in the driveway and then later that afternoon going into the house while no one is home. Why is there nothing the police will do even though property in the house is now missing?

Brette: Without a court order giving you exclusive occupancy of the home, he is permitted to enter it if it is joint marital property. Write down what's missing and present the list to the judge. You may be able to change the locks, but you really need to check with an attorney to determine if this is permissible in your state. You could also seek a temporary order from the court restraining him from doing so, but again, check with an attorney.

He wants to take community property from the home before our divorce.

Jessica's Question: My husband left three weeks ago. I got served divorce papers two days ago. My husband is asking for time to get property out of house and garage which is community property. Is there some way to stop him from taking property and or from hiding it / or selling it?

Brette's Answer: If the items are in the marital home you can inventory them and note anything he removes. He's then responsible for whatever happens to it and accounting for it. You should talk with an attorney who can help you set up a specific time for this to happen and give you advice about the best way to do it. 

Can he lock me out of the house because I left?

Sonya's Question: My husband refused to let me and my two children stay in our home. He just locked us out. The home is titled in both our names. Can he does this just because I left?

Brette Answers: He cannot keep you out of your own home without a court order. You need to get a lawyer.

What if he threatens to press charges if I enter the house?

Julie Asks: My husband and I are going through a divorce. He refuses to move out of the house and has constantly put off the four way meeting. We have two pre-teen children, neither want to live with him as he is verbally abusive (one of many reasons I have left him). He has told the children that if I come back to the house he will press charges and he is now fighting for custody. I need to get back into the house, what can I do?

Brette's Answer: Have your lawyer call his lawyer and arrange a time for you to get in when he is not home or with an impartial observer. I also recommend you talk with your attorney about whether you should move out or not, since it could impact your chances at custody.

Can I make him leave if the house is in my name?

Jodi's Question: I purchased my home before we were married and have re-financed since, but the loan and the property are still strictly in my name. Is this considered marital property, and how would it be divided if I choose to divorce him? Every time he leaves, the police tell him he has the right to come and go or take things as he pleases. Is this true even though the home is not in his name and was purchased before marriage?

Brette's Answer: You can get a court order of exclusive occupancy. How the home is divided depends on many factors, including how he participated in paying mortgage payments and doing upkeep and maintenance.

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.

How can I stop the security company from giving him the code?

Glenda's Question: I was awarded the home. The security monitoring contract is in his name. The company gives him access to my code and password and refuses to disable the system. I have changed the locks and have had to report him to the police because he was trying to get into the house. What can I do to stop him from trying to enter the house?

Brette Answers: You could contract the security company and show the portion of the order that awards you the home. The contract needs to be cancelled and put in your name. If the company will do not do so, then you should go to your attorney to obtain a court order directing him to cancel his account. (Here are some tips on handling passwords during divorce)

Can he just move back if I get to keep the house?

Lora's Question: If I keep the house but he is still on the mortgage does he have any legal right to move back in if his current living arrangement falls apart?

Brette's Answer: No, as long as you are given possession. The divorce should have given exclusive occupancy to you. If it did not, you can amend the judgment to include this. Good luck.

Can we live in the same house if we get a divorce?

Josephine's Question: My husband and I can't afford to sell the house because we are currently upside down in our home. On top of that, neither of us can afford to rent an apartment and move out. Will this be a problem should I want to pursue a divorce?

Brette's Answer: Other couples have divorced but continued to share the same residence - particularly in this economy where it is often not possible to sell a home that is over-mortgaged and impossible to afford to residences for the family. It may not be a good long term solution, but with today's real estate problems, it can work in the short term.

What if he moved after being allowed to stay in the home with our child?

Amber's Question: The home and mortgage are in my name. We agreed in our divorce that my ex-husband would stay in the home for our child's sake, but recently he decided to move out. I've been told that if I want to move back into my house, I'd have to go to the court so he can’t sue me. So can I just move back in or do I have to go to court to file papers?

Brette's Answer: You can have your attorneys submit an agreement that amends your divorce judgment with this change. You might have to appear briefly depending on your state's rules. Check with your attorney about how to proceed.

How can I change our temporary house sharing arrangement?

Michelle's Question: I am in the middle of my divorce and the court ordered that I can go back into the marital home, but I would be responsible for the payments. I 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 have no personal space, and on those 3 weekends I have to gather all my personal belongings in my car and go rent a room. He eats my food, he knows everything I am doing, and he uses my computer. What can I do about this bird-nest arrangement?

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.

Would I get anything if my estranged husband rents out our home?

Karen's Question: We are still married but living apart and he wants to rent out our home. Am entitled to any of the rent money?

Brette: It will depend on how the money is being used. If he's paying the mortgage and there's no cash left after that, you probably wouldn't be.

Who is responsible for bills and repairs?

Who is responsible for the bills until the house sells?

Barbara's Question: We placed our house on the market two days after our divorce was finalized. My ex-remained in the home and will remain until 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.

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: If you do not 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 home. An attorney can discuss your situation in depth and consider whether the home was purchased as a gift.

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.

What if he’s not making the repairs so we can sell the house?

Adrienne's Question: We were court ordered to sell the house. My ex is to keep paying the mortgage, keep the house in show quality and in good repair. I am to be held harmless for repairs. What happens if he doesn't make roof repairs ($3000)?  We were getting great offers on the house but they are not going through due to the roof. He said he is not fixing it. What do I do and what happens if he stops making mortgage payments?

Brette's Answer: You should talk to your lawyer. She can talk to his lawyer and discuss the repairs. If he doesn't make mortgage payments you are both on the hook with the bank. Again, talk to you lawyer about how to keep this moving forward.

How can I get repaid for repairs made to the marital home after divorce?

Katie's Question: We have been divorced (no fault, no representation) for over a year and separated for 4.  We decided to keep the house jointly. I would cover the mortgage and we would split repairs and maintenance 50/50. We did sign a written agreement. He has refused to pay to multiple necessary repairs and I am also doing all the work myself adding up to a significant amount of time. What are my legal rights to get payment?

Brette's Answer: Unless your agreement was part of your divorce judgment it is not enforceable. You need to talk to an attorney who can look at your divorce judgment and determine what your rights are.

Can I deduct the repair costs from his share when we sell the house?

Carlye's Question: My divorce was finalized in February of this year. In our mediation agreement, my ex and I agreed to sell the house and split the proceeds. We also agreed to make any necessary repairs in order to sell. Many months later, he has done literally nothing to help me list the house, and I have had to do everything on my own. Can I charge him from his proceeds since I have done everything myself?

Brette's Answer: Consult with your attorney, but if you paid for all of the repairs, half of that should be deducted from his share of the profit from the home. 

Am I obligated for half the renovations if he's living in the house?

Carol's Question: My husband and I are divorced. In our agreement it states the house will be sold, debts paid, and divide any money left over equally between us. My husband lives in the house, I have an apartment. The house is not selling and my ex wants me to pay half of any renovation expenses he must do to help sell the house. We're both on the deed. Am I obligated to pay expenses on the house? The agreement states any expenses incurred after the agreement was signed are the responsibility of the debtor.

Brette's Answer: You should contact your attorney. There are two ways to handle this. Either you split the costs and equally split proceeds from the house, or one of you pays all the costs and is reimbursed for that out of the proceeds of the house. Good luck.

Who gets the house?

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 both of us are on the deed and title. 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.

Can we just keep the house as joint owners?

Karyn's Question: After being married for 21 years, we legally separated and my husband moved to Chicago for a job opportunity. Because of the failing housing market, we both have agreed that we want to hold on to the house. Is this possible?

Brette's Answer: Definitely. You can continue to be joint owners. But you should think about what happens should you ever want to sell - how will you split it? What if one wants to sell and the other doesn't? Who gets to live in it or will you rent it?

How is the home equity divided in a common law marriage?

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 years before he moved in. He did give me some money to put on the mortgage (not the same amount I put into it 3 years 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 then be entitled to a percentage of your home's value. 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 stay in the home until the kids are grown without buying him out?

Tracy's Question: We have 2 children (one that is mildly retarded) and a house that has the deed in both our names. My daughter receives special services from within our school district. I would like my husband to move out so my daughter does not have to change schools. Please tell me how I can retain the home, and the school for my daughter, and have my husband move out, without having to buy him out (He has refused to do so for years).

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. Mediation might be a good solution for you. If you and your husband sit down in a controlled environment and you express your concerns for your daughter and make it clear you are simply trying to make things as good for her as possible and that you are not trying to punish him, he may listen to reason. He also may need to understand how the property settlement will play out.

Often people refuse to leave the home because they fear they will lose all of their interest in it by doing so. Another tricky part is that he will remain liable in the eyes of the mortgage company so if you don't pay, he's liable. You can include a clause saying you will indemnify him, but that's often of little help in those situations.

Can I keep the home and have my ex pay the mortgage?

Debbie's Question: I want to be awarded the marital house when my divorce is final, but I don't want to have to refinance it. I have primary physical custody of my kids and feel I should have the house as I am currently living with my parents and only get 400.00 a month child support plus I work. What are my chances?

Brette's Answer: You should see an attorney who can discuss your entire financial situation. It is possible in some cases for one spouse to be responsible for paying the mortgage while the other spouse remains in the home, but in most cases that is not possible. If this is the arrangement you settle on, you need to understand that your credit rating is at risk if he does not pay the mortgage.

Can he keep the home just because I moved out?

Mary's Question: I have been separated for a year. We have no mortgage on our house, but he's threatening to take it from me. Can he do that?

Brette's Answer: I am going to tell you something I find myself telling a lot of other women. Stop listening to your husband! He's not a legal authority. He doesn't get to decide how your property is divided in your divorce. He's not in control of you. If you are still married, then the house is marital property and belongs to you both, regardless of who is on the deed. Get an attorney and get some advice about your situation and make your decisions based on that.

How do we handle it if I don't want the house?

Amy Asks: We are getting a divorce and own a home together. I want to give him the house and I want nothing to do with it. Also, we don't want to refinance. Isn't there is a form I can fill to remove my name off the house and everything?

Brette's Answer: You can quit claim your interest to him but I would not recommend you do so until you talk to an attorney. If your name remains on the mortgage, you're going to remain liable for that debt, which is a serious thing.

Can I give him back the house if it was awarded to me?

Joni's Question: My ex and I have been divorced since the first of the year. The divorce papers state that I am responsible for the house. I tried to refinance, but I was turned down for a loan. The house is only in his name. Now I want to move and let him have the house.

Brette's Answer: You need to get your divorce decree modified to reflect this agreement.

Can I get the house if he declared bankruptcy and I'm on the loan?

Anna's Question: My ex was granted the house in the divorce six years ago. He was given four months to re-finance the loan, but he never did. He has filed for bankruptcy and surrendered his interest in the house, and moved out of state. I would like to discuss a loan modification with the mortgage company but cannot do so until either the stay is lifted or his bankruptcy is discharged, which will not happen for a year. Can I take possession of the home now?

Brette Answers: You need to speak with your attorney. If he was granted the home, your name is no longer on the deed. You need someone to negotiate with the bank and to consider the ways the divorce judgment can be enforced or modified.

Can he get the finalized divorce changed to take back the house?

Diane: We've been divorced for a year. I'm taking him to court through social services for back child support, and now he is threatening to petition to have the divorce changed and take the house away. Can he do this even though our three children live here and its gone through the courts and been a year?

Brette's Answer: No. If you were awarded the house, it's yours.

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.

Will an email stating he can have the house stand up in court?

Debbie's Question: Early this year I said in an email that my husband can have the house. Now I have changed my mind and want half of the house. Will this stand up in court by just stating this in an email?

Brette's Answer: Nothing you said in an email is enforceable. 

Can he just sign over his half of the house to our children?

HJ's Question: We are splitting up but are not yet divorcing. My husband is being nasty and saying he will just sign over his half of the house to the children. Can he just do this without my consent?

Brette's Answer: No. It is marital property and will be divided in the divorce. You need to retain an attorney to help you protect your rights.

Issues with how the deed is titled

Is a divorce the only way to get him off the deed?

Noemi's Question: My father abandoned my mother with 4 children 17 years ago. They never divorced but he lives in another country. Today my mother needs to remodel her house that she finished paying, but because my father is on the deed, nobody will give her a loan without his signature. The question is...Does she need to search him out to get a divorce or is there a faster and easier way to get him off the deed?

Brette's Answer: She can have him sign a quitclaim deed, giving ownership to her. However, if they ever do divorce he might still have ownership rights to the home.

He wants to transfer the home to me as sole and separate property.

LaWanda's Question: My husband has submitted a "Proposed Settlement Agreement" to me which states that he wants to transfer as sole & separate property the home to me. What does this mean?

Brette: If the house was bought during the marriage, it will be considered part of the marital assets which will be divided in the divorce. It sounds like he wants you to take the house. You did not mention the mortgage, which is a debt of the marriage and has to be divided also. I would suggest you have an attorney review the settlement agreement before you sign it. Good luck!

Do I have to give him a share if the deed is only in my name?

Jan's Question: I owned my home before we got married (11 years ago). Will I be able to keep the home when we get divorced?

Brette's Answer: Since the home was your separate property when you married, you will likely continue to own the home. You may need to compensate your ex for any increase in value he helped achieve (remodeling or upkeep) or mortgage payments he helped make. An attorney can go over the numbers with you.

Do I have any leverage if he was added to the deed after marriage?

Question: We built a home on my family's farm. When the land was surveyed, the deed was in my name and my father's for several months. Then the deed was put into my name and my husband's. If we get divorced, will I have any leverage since my name was on the deed prior to him and due to the fact that this home is in the middle of the family farm? I also inherited an investment account which was simply was transferred from my grandmother's name to only my name. Can my husband claim any of this money during a divorce?

Brette's Answer: The home has been converted a marital asset and is subject to division. You should be able to negotiate something though so he gets more of other assets so you can keep the home. The inheritance is separate property if you have kept it separate.

Who owns the home if I'm named on the deed?

Kim's Question: My name is on the deed of our house.  Three years ago we refinanced and my husband's name is also listed on the mortgage papers under "parties" but only I signed the papers.  During the course of our marriage, our financial approach has been that he has always paid all the bills and I have the paid mortgage. Who owns the house, me or both of us?

Brette's Answer: An attorney can help unravel who owns the home. If it was bought during marriage it is likely a marital assets. If you used your own separate funds it maybe separate. But if you used money you earned during marriage to pay the mortgage, those are marital funds and any improvements to the home with marital funds would make all or part of the value a marital asset​.

He owned the home before we married but added me to the deed.

Question: My husband’s grandmother gave him the money to purchase a condo that he lived in several years before our marriage. After we got married, he signed a quit claim deed placing ownership in his name and mine. We renovated the condo and I paid for those renovations as well as the property taxes for 3 years. Am I in danger of losing my home and investment in the property?

Brette's Answer: You should meet with an attorney to review all of your assets and debts and state laws, but when a separate property is converted to a marital property (such as by quit claim deed), it is divided in the divorce. 

Can he make me leave if the deed is in his name only?

Joni's Question: My husband told me that I have to move out. We own two homes, one is primary and one we rent out because there is no value anymore due to the market. I am not on the deeds to the houses. He is a step father to my disabled son. He makes 88,000 a year, and I only make 12,000. Can he just make me leave?

Brette's Answer: No he can't just tell you to leave. The homes are marital property if purchased during marriage regardless of what the deed says. You need to get an order of exclusive residency, as well as spousal support.

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. The house is in his name. We were married when it was built. Will I have any rights regarding the home if we divorce?

Brette's Answer: Yes - everything owned by either of you that was purchased or acquired during marriage is marital property and its value must be divided in the divorce.

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.

How can I get the deed transferred into my name?

Christine: We are divorcing and have agreed that I will keep the house. We bought it before getting married and the deed is in his name. We're both on the mortgage due to re-financing. How can I get the deed transferred into my name?

Brette's Answer: The court will need to order this and your husband will sign a quitclaim deed. There is a difference between the deed and the mortgage. The deed is about ownership. The mortgage (note) is the loan on the home. The easiest way to remove someone from a mortgage is through a refi. It is sometimes possible to apply with the bank and ask that they remove the other person, but it is rarely approved. 

How do I change the deed if the house was awarded by default?

Ramona's Question: I have the final judgment. My ex could not be located to sign the Quit Claim deed so judge signed over house to me. I then had it notarized and filed with the County Clerk. What is the next step and how do I get the title and deed changed?

Brette's Answer: Check with the county clerk to determine what steps are necessary in your jurisdiction.

Selling the marital home

Do we have to sell our home if it's paid for?

Diane's Question: We paid cash for our house 5 months ago. It's a small 2 bedroom. He left three weeks ago and cleaned out the bank account. Now he wants the house sold. I am not working now and want to go to school. I am 55 and we were married 33 years. Can I keep the house?

Brette's Answer: If the house is paid for, you don't have to worry about paying a mortgage, but he's entitled to part of the equity in the house. Look at other assets you have and figure out how to split things up so you can keep the house.

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 will 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.

Topic: Enforcing the sale of the family home

Linda's Question: It has been over a year since my husband filed 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 should speak 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.

Can I evict him from the house so I can sell it?

Miriam's Question: I own "a marital property" in my name and my sister's. My husband hasn't lived in the property for many years and now lives out of the country. He had been paying the mortgage, but stopped when I filed for divorce. We are now in foreclosure and I have the chance to sell the property. Due to him using the house as a storage facility (he's a hoarder), it is impossible for me to show the property to prospective buyers. I want to be able to sell the house before April which is the deadline the bank gave me to sell the house. Can I evict my husband under these circumstances?

Brette's Answer: You can't evict him since it is marital property. You need an order giving you exclusive occupancy. You wouldn't be able to sell anyhow since it is an asset of the marriage - unless you can get court permission to do so. If you present the situation to the court, and indicate that proceeds of the sale will be held in a separate account pending division by the court it could happen.

What if he won't sign an agreement to sell the house?

Deborah's Question: When we divorced 9 years I was granted exclusive use of the home until our son graduated. After that, the home was to be listed for sale and the proceeds divided 50/50. He graduated nearly five years ago. My ex has told me he will not sign to sell. I no longer wish to live here as all children have left home and it is more than I can handle. What steps do I need to take in order to remedy the situation?

Brette's Answer: You can file with the court to compel him to sign.

Can he enforce the sale of the home years after our divorce?

Susan's Question: I have been divorced for fourteen years. The divorce papers stated we were to sell our home within 2 years after the divorce. I have lived in the home since then, paying all expenses, taxes, mortgage, and home improvements. He now wants to enforce the sale of the home. What are my rights?

Brette's Answer: The issue is that he is entitled to his portion of the value of the home, which accrued during marriage. A settlement would be for you to pay him a portion of the value of the marital increase in value.

What if I can't sell or refinance within the specified time frame?

Kari's Question: In the divorce I was awarded the house, and I was given a certain number of years to sell, refinance, or give it back to him. I've been turned down twice for refinancing and I tried to give it back, but he didn't want it. The house is up for sale now for the second time and no luck selling yet. What can I do if it is coming up on the time limit to have the house out of his name?

Brette's Answer: You can get your judgment modified to reflect the economic climate.

What if the house isn't selling and he can't afford the mortgage?

Question: My fiancé and his ex-wife have had the marital residence for sale for over a year and a half. He is no longer able to afford both the mortgage payments and rent for our home. He has filled out paperwork to assume the loan and his ex-wife signed, but what if it's not approved? He was ordered to maintain status quo until the house sold, but after almost 2 years without a sale, he can no longer afford the mortgage. What options do we have?

Brette's Answer: He can get the judgment modified so she has to move out and he can get rental income from it - or order her to pay rent. Good luck.

If I am awarded the house, will he get any proceeds when I sell it?

Jenny's Question: We are going to put in the divorce decree that he is giving up his rights to the house and wants nothing to do with it anymore. If I have him sign a quick claim deed and I sell the home for more than what is on the loan, can he still obtain what money would come to me?

Brette's Answer: If you are granted the home in the divorce decree, it belongs to you and any proceeds would belong to you only. You should discuss this with your attorney.

Am I entitled to any profit if he was awarded the house in our divorce?

Steffanie's Asks: My divorce has been final for almost 2 years. The final decree stated my ex had 90 days to remove my name off the house he was awarded. He refused and after a year I quit asking. Now he is selling the house that my name is still on. Would I be able to demand part of the profit of the sell?

Brette's Answer: You should check with your attorney. However since you were not granted any ownership rights to the property it is unlikely you would be entitled to anything from the sale. 

Can the decree be changed if we decide I'll keep the home?

Ruby Asks: In the 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 your agreement to the court and have it made official. Otherwise, he could take you back to court on a violation. Talk to an attorney.

How can I legally sell the house to my children?

Suzanne's Question: The house has to be sold via judges orders. How can I sell the house to my adult children legally?

Brette's Answer: Have an attorney handle the sale so that it is done at a fair market price with correct paperwork.

Can I sell the house without his permission?

Rachel's Question: If my husband and I own the house (both making mortgage payments/both on the loans), can I put the house up for sale without his permission? Neither of us can afford to keep it, but he won't even agree to sell it before we can agree on custody.

Brette's Answer: The house can't be sold without the permission of both parties, or unless there is a court order. You should not list the home until a decision has been made. If you get an offer, you can't accept it since he does not agree.

Can he sell the house without my knowing about it?

Stacy's Question: I believe my husband is planning on filing for a divorce. I'm 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, you own the property together and 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.

Can the house be sold without his signature?

Nancy's Question: The judge ordered me to put house up for sale. I have a buyer, but can't get in touch with my ex (he changed his phone number and got fired from work). Can I just sell the house and worry about giving him his share if we ever find him? Also, can I sign the paperwork for him?

Brette's Answer: You can't sell the house without your spouse's signature on the deed. If you cannot locate your spouse, go back to court.

Factors affecting rights to the marital home

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.

Do I have more rights because my father gifted the equity to us?

Kelly's Question: My father sold the house to my ex-husband and I, and he gifted the equity to us. Do I have more rights to the house where as it was my family home.

Brette's Answer: No, not if it was a gift to both of you.

Is he entitled to anything if the home is deeded to me and my mom?

Question: Does my husband have any right to my home if the house in my name and my mother's name? I am nervous as how this will hold up in court and if he can get half of my house? He also thinks he is not responsible for the debt accumulated during our marriage as he feels most of the items are within our home and staying with me.

Brette: You'll need to consult with an attorney. Even if the home is in your name, it will depend on how it was paid for and who did the maintenance and improvements to determine how it will be divided. Debts accumulated during marriage are usually joint debts.

Can I keep the house if I bought it by myself during the marriage?

J Asks: I've been married for over 7 years. I know we are going to end up getting a divorce because he has been unfaithful. I bought the house by myself after we got married. Can I keep the house? Or do I need to give him some money so I can keep the house?

Brette's Answer: A home purchased during marriage with marital funds is a marital asset. If separate funds were used, it will depend on who paid the mortgage and did the upkeep whether he is entitled to a portion. I suggest you consult with an attorney.

Am I entitled to anything if he bought the house with insurance money?

Samantha's Question: My husband's mom died last year and he used the life insurance proceeds to buy a home. The deed is only in my husband name. Am I owed half of the house because we were married and I shared the home with him at the time of purchase?

Brette's Answer: No. The money was his separate property and he used it to buy the home. You are entitled to a portion of the increase in the value of the home since it was purchased.

What am I entitled if he used inheritance money to build on marital property?

Mari's Question: My husband built a garage on marital property with inheritance money. I know I'm not entitled to any separate money but since it was built on marital property, am I entitled to add it to the value of our property in a divorce?

Brette's Answer: You should talk to an attorney. If he added to marital property he may have converted it to be a marital asset.

Property owned before marriage

What am I entitled to if he had the house before we got married?

Donna's Question: We've been married 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 percentage of the home's increase in equity since you helped pay the mortgage and presumably helped keep up the house. Get an attorney to help you.

What if he had the home before we got married and I didn't work?

Edwina's Question: My husband purchased our home before we got married. The deed is in his name, but he refinanced the house during the course of our marriage a couple of years ago. I did not contribute to the mortgage because I only worked part time. What am I entitled to?

Brette's Answer: Go see an attorney. The appreciation in value during the marriage is marital property regardless of whether you worked or not.

Does he get anything if I owned the house prior to our marriage?

Marta's Question: I am planning to get a divorce with my husband. From my previous married I had a condo in which my ex and I are still owners. He is still living there because it's hard to sell the house those days. Will I have to split my equity in the condo with my present husband or not?

Brette's Answer: Property owned prior to marriage is considered separate property and not divided in a divorce, unless your spouse contributed to the upkeep, improvement, or mortgage/tax payment of that property.

Do we each get to keep the property we had before we got married?

Esmeralda's Question: All the property we have was bought prior to our marriage. In the divorce, do I stay with the property that is in my name and he stays with the property that is in his name?

Brette's Answer: Pre-marital property is usually considered separate property and therefore not divided in a divorce. There are some exceptions, such as if your spouse helped increase the value of property you owned (such as by paying the mortgage or making repairs on a home you own).

Will I get anything if we bought the home before we got married?

Britnee's Question: I've 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.

Buying out the other spouse's interest in the house

What does it mean if he's asking to buy me out?

Janie's Question: We have two rental properties. He said I can have one. Now he's asking to buy me out. What does that mean?

Brette's Answer: It means you need to get an attorney who can advise you as to your rights and what a court would likely order in your situation. You should consider going to mediation where you can work out a settlement once you have all the facts. If you are asking me what "buying out" means, it means that instead of you taking one property, he is proposing giving you the cash value of that property and keeping the property himself.

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 has both our names on it. 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.

What are my options if I can't afford to buy him out?

Laura's Question: We own a home together and my husband wants a divorce. My 84 year old mother lives with us and I am her primary caregiver. He wants to sell the house, but I can't move my mom at this time because she is too ill. So he wants me to buy out his half of the house. I don't have that kind of money. Do you have any suggestions?

Brette's Answer: The sale of the home could be postponed until a date in the future or until your mother could be moved. You could continue as joint owners. You could work something out with regard to the mortgage. You could pay it. He could be ordered to pay part or all of it depending on your financial situation. You could also talk to a mortgage broker who may be able to suggest non-traditional options (co-signor, higher interest mortgages for high-risk applicants, etc.). You should discuss this with a lawyer or mediator who can help you work through the possible solutions.

Is refinancing the only way to buy out his interest in the house?

Melanie's Question: I am 60 and my spouse is 71. The house is paid for and I don't want a mortgage. Do I have any other options other than refinancing to buy him out? Can he agree to let me stay provided I split proceeds at such time as I do sell the house?

Brette's Answer: If the house is paid for you, you would not need to refinance. Ownership of the home can be determined in the divorce. If you want the house, he gets other assets. It is possible to agree to split proceeds of the home later, but generally this would mean continuing with joint ownership.

He wants to buy out my half, but I want the house sold.

Kristin: 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. What are your 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 its 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 be 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!

Can he refuse to buy me out and force a court house sale?

Linda's Question: Can my husband refuse to buy out my equity and force a court house sale only to buy it back at the sale at a reduced rate? He knows I cannot afford to bid against him. There is nothing owed on the house. Thanks.

Brette's Answer: Sounds like you need to get a lawyer and get an order in place regarding the home.

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 walk away with 20k in equity in the home and 5k in other assets. He walks away with 25k in other assets. Another option is to take out an equity loan on the home to pay him off, or possibly use your own separate assets to do so.

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 to buy the house?

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.

Post-divorce property issues

Does he have a right to enter if I was awarded the house?

Connie's Question: The house was awarded to me in our divorce agreement, with the contingency that it is to 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. Can he rightfully enter just 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. Once you are granted occupancy of the home, you can change the locks and he cannot enter without your approval. » Return to top of Marital Home and Divorce

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.

Topic: Joint tenancy with right of survivorship

Ruth's Question: I was divorced 25 years ago. We still own the home together as JTWRS (joint tenancy with right of survivorship). He is getting remarried in about 2 months. What should I do to get my half share of the home value?

Brette Answers: It will depend 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.

Will I owe taxes if I'm awarded the house?

Autumn's Question: The decree states that I 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.

How do I avoid paying capital gains tax on my share of the equity?

Jill's Question: I got divorced about 11 years ago and my ex-husband was allowed to stay in our house until it sold. We will sell soon and I want to make sure I am set up to get the $250k gain from the house sheltered. When we made the settlement agreement that was the understanding, since we could no longer both live there and were not ready to sell.

Brette's Answer: Talk with your tax preparer about what you need to do to protect this from taxes.

Would it be a good idea to gift the house to our son in the divorce?

Norma: We're getting divorced after 25 years of marriage. Currently we have 2 properties and want to leave one to our son via a quit claim deed. Is this a good idea? Is it best to do it before the divorce or should we let the court do it and making our son the beneficiary? My son is a full time college student and we are looking for the best and most economical way for him to benefit and not suffer for our mistakes.

Brette's Answer: You'll need to consult with a lawyer. You run the risk of getting into gift tax issues if don't do this as a sale.

Who is responsible for property taxes the year of the divorce?

Sara's Question: I moved out in May and my divorce was final in November. He kept the home.  Do I need to pay a portion of the property taxes accessed for the year we divorced which are due this year?

Brette's Answer: The person who owns the home is responsible for paying taxes on it unless the order states otherwise.

Topic: His ex-wife 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. What can I do about this mess?

Brette: 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. You need to consult with a lawyer. Good luck.

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.

What if he didn't disclose the equity loan on the house I received?

Teresa's Question: I got the home in the divorce. I found out after I was awarded the home that my husband has a Home equity line of credit on the house and has been paying on it now for 5 years. The divorce was final 5 years ago and the credit line was not mention on the divorce decree. What should I do about this?

Brette Answers: You'll need to get the decree modified. Talk to your attorney.

Is he responsible to help cover the increasing taxes and insurance?

Joyce's Question: I remained in the house after our divorce and we're both still on the deed. 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.

What happens to the house if he dies after we’re divorced?

Tanya's Question: My ex and I are divorced. He has since passed in May of this year, the mortgage is paid in full as we had insurance. My name was no-longer on the mortgage, but my name is on the property.  Can his children take this from me?

Brette's Answer: It depends on what your divorce judgment says. The court determined how marital property was to be divided and that is not changed by the fact that he passed away after the divorce was final. If the court awarded you the home, it is yours. If it did not, it is not yours. Check your divorce judgment and confer with an attorney who can interpret it for you. (You can find out more about how death affects divorce.)

Copyright | Updated April 20, 2024

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