Marital property


#1

Dear tiredofthis:

Greetings. First, the house is separate property of your husband, although it may have substantial marital equity. On the other side, it may have very little equity if you have mortgaged the property up to the full value.

Next, unless he will agree to sell the house to you (meaning you refinance the house solely into your name and pay him his share of the equity) then no, it is unlikely you will obtain the house in a settlement. No, the court will not “just consider” you married at the time of purchase.

With houses, the options are for one to stay or for the sale to occur. My advice, although not what you want to hear, is for you to start looking for another home which you may want to purchase after an agreement is entered between you and your spouse. Thank you.

Janet L. Fritts
Attorney with Rosen Divorce
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

10925 David Taylor Drive, Suite 100
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

ROSENDIVORCE.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.


#2

Does the fact that this is the marital home not give it some marital estate interest? Doesn’t the fact that we took out a home equity line of credit together show intent that it is marital property? How in the world could the court say move out and get next to nothing just because you failed to go to the bank and sign a note? Is there anyway that you can think of that would change this home from seperate to marital? Thank you so much. I am sure you deal with this daily and understand my frustration.


#3

Dear tiredofthis:

Greetings. No, simply because you both live there and it is the “marital home” does not make it marital. Remember that I did say it had marital equity - or in other words, a cash value (as long as you have not remortgaged the property substantially). Now, if you have placed both names on the deed of the property in the past, then there is a presumption that this is marital property. The court would give you half the value of the house, not “nothing” as you said in your post.

Yes, if the house was deeded to both you and your spouse, then it would be marital. Otherwise it is separate.

On an aside, remember that there are a lot of homes out there. Some small, some large, some new, and some old. You are currently attached to your home (the marital residence), because you are comfortable there and it provides a sense of security. Another home can do the same for you. If I were you, I would not get locked into wanting a set item of property, but instead in wanting half of the marital equity/value/cash. Thank you.

Janet L. Fritts
Attorney with Rosen Divorce
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

10925 David Taylor Drive, Suite 100
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

ROSENDIVORCE.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.


#4

I have been reading your site for sometime and have a few questions. My husband bought our house in his name only prior to marriage but we moved in the house together and have split all bills. I have been told that he can not sale the house without my permission. We never added my name to the title but we did take out a home equity line of credit for repairs and such. Is there any way that I can get the house in the divorce settlement since my name is not oon it and purchased before we actually married and moved in? Actually I lived in the house before he did. I really do not want to leave and he really does not either. Could the courts just say that we were considered married? Do not know how this works. Thank you for your time.