Equitable Distribution

Husband owned home for five years prior to our marriage. We lived together one year followed by a marriage lasting 13 years. I worked the first 3 years of our marriage then became a stay-at-home mom of our two adopted children (one with special needs). I was a totally dependent spouse. He paid the mortgage but I believe both names are on the deed. I moved out of our home a little over a year ago. We share the children equally, and custody has never been an issue. Even though I would not legally qualify for spousal support, he initially agreed to pay my expenses including rent for 3 years (in writing between us but never signed - Thought we were good enough friends - stupid me) in lieu of my seeking property division, but he recently ceased any assistance.

Will the home we shared for 13 years and the home where we raised our children be considered marital property?

If divisible, what would we be dividing (the total equity in the home or the increase in equity from the date of marriage through the date of separation)?

He has stated that any money he has provided to me so far would be subtracted from the “pot” since I don’t qualify for spousal support. Is this true?

Thanks in advance!

If both of your names are on the deed to the home, it is 100% martial property, as your husband would be seen to have made a gift of what was previously separate property to the marriage. The value will be the value of the home at the date of separation less the loan balance as it existed on that date, (market increases or decreases in value will be accounted for).

Any money your husband has given you thus far should be counted as voluntary support.

[quote=“Erin Clarey”] The value will be the value of the home at the date of separation less the loan balance as it existed on that date, (market increases or decreases in value will be accounted for).


(4) “Divisible property” means all real and personal property as set forth below:
d. Increases and decreases in marital debt and financing charges and interest related to marital debt.

I am divorced. My former wife and I are on the deed and on the mortgage. Our equitable distribution consent order states that we will sell the house immediately. It has been on the market since October. It would have been on the market in August, but my ex defied the court order and refused to sign a listing agreement.

The eq distro order does not specify who will pay the mortgage. I live in the house alone since Sept 2008 and have 50% custody. Since September 2008 I pay the complete mortgage and property taxes. We have no order that states that I must do this. The only statements are:

[i]The parties shall immediately list the residence for sale.

Further, there is no issue that the proceeds from the sale of the residence shall be distributed to Plaintiff and Defendant equally.[/i]

and statements to the fact that “All pending issues of equitable distribution not decided by previous Orders entered in the instatn action are hereby resolved, and this Court retains jurisdiction only”.… (only for the QDRO)

Are there any rules that can be applied regarding-

  • Who has to pay property taxes while the house is for sale?
  • Who has to pay the mortgage while the house is for sale?
  • If I pay the mortgage down, will I get credit for the principal reduction since she moved out?
  • Is she responsible for 1/2 interest paid?



If the order does not specify who is to pay the mortgage, taxes and insurance, the party who remains in the home would likely be held responsible by the court. You can claim the deduction. Since the court order specifies that the proceeds will be divided equally, you will no receive a credit for paying the mortgage in the form of divisible property.

Maybe you can get a court order stating that since you both still own the house the payments should be split in half. At least the mortgage. I left my house and my husband lives there alone with our cat. My boys and I moved out in August. I paid the mortgage in full for fear of foreclosure and bad credit for 5 months. Finally, I got my lawyer to make a motion for a court order for my husband to pay half the mortgage. And they did. But, he won’t leave or put the house on the market. I pushed my lawyer once again to have a trial date so the judge would put an end to my financial nightmare. We got a date, Feb. 28th and the court cancelled it. I feel like this piece of our lives is something I should be watching on Seinfeld it is a big costly JOKE and the little guy loses.
Good Luck!

My last message was for one of your viewers.

My lawyer keeps telling me that my husband can’t be forced out of our home; he lives there alone since Feb.09.THe law says that only if the house is in trouble like foreclosure can the courts order my husband out to force the sale. I was able to get the bank to lower our mortgage for six months. Is my lawyer right? What else can I do? Interim distribution won’t work the lawyer keeps telling me . That was your suggestion Erin. Court trial cancelled. Can’t get this thing over.
We have an April conference date only to set another date for the trial. My husband , myself and my lawyer and the judge.(husband representing himself after firing 2 lawyers)will be there. This stinks , I keep paying my lawyer more and more because the courts cancel. What can my lawyer and I do at this April meeting with the judge to make this move faster??? I need some great words of wisdom. Let’s go to the top for my answers.
Thanks ,

I still think that your best bet is to make a motion for interim distribution.