Everything purchased or obtained during the marriage is marital property. With a house, you can sue for the difference in value between when you were married, and the date of your separation/divorce. So, if the house was worth $100,000 when you wed, and $120,000 in the end, the difference is $20,000, of which you would be entitled to half. Be aware that other factors, such as retirement plans and assets and liabilities, make this number subject to augmentation or depletion. It’s called Equitable Distribution for a reason.
You both have to decide on who will leave the house–but as a man, I would want someone to shoot me in the head if I EVER asked my ex-wife to take our kids and leave. As much as I didn’t want to be with her, I would NEVER sit in the house while my children had to adjust to something that was ultimately my doing. How horrible. Maybe, since it is his house, you could stay there and pay the mortgage while he gets an apartment–and then agree that at some point, you will find your own place to live…one without so many memories (or ghosts).
If the mortgage payments have been made with earnings during marriage, yes this is at least partly a marital asset to be part of the asset distribution.
It sounds like you would like to ease the transition for the kids by not moving them out of the marital home. If you and your spouse can come to an agreement that allows for you to stay in the home (at least for the time being), while still agreeing to balance out the asset distribution with other assets, or upon future sale of the home. It really is a big picture analysis, so it depends on the other assets and debts to be considered in the final distribution.
It might be helpful if you and your spouse could agree on ways to lessen the impact of a future separation. If financially possible, you can suggest you remain in the home with the children. Since you are currently in counseling, having this conversation in front of the counselor might be productive for you. Good luck.
Deborah M. Throm
Rosen Law Firm
1829 E. Franklin Street, Bldg. 600
Chapel Hill, NC 27514
919.321.0780 main voice
4101 Lake Boone Trail
Raleigh, NC 27607
919.787.6668 main voice
301 McCullough Drive
Charlotte, NC 28262
704.644.2531 ext. 100
DH and I are in counseling AGAIN (for the 4th time). I truly don’t want to divorce, but it almost seems inevitable.
DH’s name is on the deed of the home, yet the mortgage payments come to both of us. I have been a stay-at-home parent (working PT) for the past 2 years. We have 2 small children - ages 3 and 1.
If I were to file for separation, would he be the one to leave? I could not imagine a judge making the children and I leave the home. Furthemore, isn’t our home (cars, furniture, etc) considered marital property?
Thanks so much.