Selling the marital home


#1

Stbx is currently living in the marital home while I’m paying my half of the mortgage along with the rent on my apartment. He doesn’t want to put the house on the market until I file for divorce which will be in a few months. We have no kids and the only joint property/asset is the house. My questions are:

  1. Is there anything I can do to force him to put the house on the market sooner?

  2. When I file for divorce, is there something I can add that says the house is to be put on the market (if it isn’t already at that point)?

Thanks!


#2

Yes. You can file an action for Equitable Distribution and include a motion for interim distribution asking that the court order the home placed on the market. The court will grant the motion unless your husband can show a good reason why the home should not be placed on the market. Since you have already agreed that the home will be sold I would think you would prevail in this situation.
You must have your property settled prior to the divorce or you will lose your rights to equitable distribution. If your spouse files for divorce prior to your settlement of your property issues you must file an answer and include a counterclaim for equitable distribution or you can lose your rights to the distribution of proceeds.
Does the deed to the home list you both as owners?


#3

[quote=“Erin Clarey”]
You must have your property settled prior to the divorce or you will lose your rights to equitable distribution. If your spouse files for divorce prior to your settlement of your property issues you must file an answer and include a counterclaim for equitable distribution or you can lose your rights to the distribution of proceeds.
Does the deed to the home list you both as owners?[/quote]

Yes we are both on the deed and the mortgage.

We have a pre-nup stating that property/assets are to be split 50-50 in the event of divorce. So do I have to worry about losing my rights to equitable distribution?


#4

You will lose your rights to equitable distribution as to anything that is not covered under the prenup. The prenup, if valid, does allow you to sue your husband after the divorce for any property that was not divided prior to entry of divorce.


#5

I thought that as long as an ED process was underway prior to divorce, you retained your rights to ED. In other words that you lose rights to ED if you request it AFTER the divorce.


#6

That is correct, to ensure you preserve your rights to Equitable Distribution you must either resolve the issue prior to divorce, or file a claim for Equitable Distribution at the time the divorce complaint is filed, or if you are the defendant, you must counterclaim for Equitable Distribution in your answer to the complaint.


#7

Thanks Erin. Is filing claim for ED in order to get the house on the market a costly process?


#8

Each case is unique and the cost on an Equitable Distribution action will depend on several factors. You will need to schedule a consultation to speak with an attorney regarding the specifics of your case in order to get a ball park figure.