Marital Property


Dear tricia824:

Greetings. You should agree to a separation agreement, him refinancing, and you being paid out your share of the equity. Yes, of course you are entitled to 1/2 of the marital equity. During the separation period, your spouse can usually keep the principal reduction, but not claim the entire mortgage payment.

Yes, if he cannot refinance and you cannot move back in, and you are not willing to wait for him to refinance…then your only option is to sell.

Be careful though. If you want to let him refinance after the date of divorce, your separation agreement must be drafted very carefully to ensure that you can force a sale if he does not refinance. 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


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.


We purchased our home in 1998; however, when the home was purchased I was the person who qualified for the loan through Rural Housing. My husband’s credit was not good enough to secure the loan, although the loan was based on his income. For purposes of property tax, both his name and mine appear on the tax records.

We separated in March, 2005 and he is living in the house making the house payments. What is the process for him getting the home loan in his name? Am I entitled to 1/2 of the equity although I have never made a payment? What about during the separation period? If he can not qualify for the loan and I can not afford the house, is our only option to sell?

Any guidance anyone can give me in this situation will be greatly appreciated.