Renting house to wife so I can move out of state

1

I currently fully own our home. I purchased it before we got married, mortgage and deed are solely in my name and only I have paid the mortgage, property taxes etc through my own account, not a joint account. We also have a prenup that says all assets owned before the marriage remain each person’s own assets and are not eligible for ED.

That said I make about 10X what my wife makes. She only works part time and the joint account that her check goes into only pays for some of the utilities and our food/groceries. I contribute the same amount to that account as her salary.

Since she can’t afford to move out, she won’t do so willingly. And even if she did she’d need financial support from me to make it feasible which I don’t want to do. So I’m willing to move out and lease her the house during the separation for an amount way below market value but something she can afford. This works better as I want to try living in a different state anyways but don’t want to sell the house at this time or rent it to a stranger or leave it vacant. Otherwise I’d have to pay the house mortgage, my new lease and likely a portion of hers.

So questions are:

  1. Do I jeopardize my sole ownership of the house in any way if I offer to let her rent it?
  2. Is there any way a judge could override the prenup because I make so much more money than her even though this was always the case and all the other factors above that make clear house is solely mine re: buying before marriage, only one on deed and mortgage and only one who has paid the mortgage? Note we do not have any kids so that’s not an issue.
  3. I assume I need both a separation agreement and a separate lease agreement?
  4. What are my options if she won’t agree to any of this and also refuses to leave?
  5. Anything else I need to be aware of consider before moving out of state?
2

(1) You would not jeopardize your ownership of the house, and its exclusion from equitable distribution per your prenup agreement, by allowing her to remain living there pending a final settlement. It wouldn’t make sense for you to rent the house to a dependent spouse when that was the marital residence. It sounds like you owe her alimony, not the other way around with her paying you to live in the marital residence. Additionally, it’s unlikely she would agree to a rental contract, nor is she required to consider a rental contract with you.

Instead, you can continue to allow her to live there until final settlement of ED. Your postseparation support to her would be your payment towards the mortgage, utilities, etc. instead of paying her monthly postseparation support. Depending on exact figures, you may still owe her postseparation support beyond what is being paid towards the mortgage, etc.

(2) As long as there are no contract defenses to the entry of the prenup and it is a valid contract, the prenup could not be set aside.

(3) You will need a separation agreement. See the answer in #1 above as to why you would not need, and be unable to attain, a rental agreement.

(4) If you cannot reach an agreement on your own, you will have to file a lawsuit against her for equitable distribution, as long as you are already separated.

(5) North Carolina will continue to have jurisdiction over your equitable distribution claim.

Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

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