21 May I’m getting a divorce. Do I have a right to our house?

Q. I am at the beginning of a bad divorce. We own a house that we bought together, but the mortgage was in his name only. Now he lost his job, spent all our money and I think our house is in foreclosure. I’m not sure. They won’t talk to me because I am not on mortgage. I still live there and I pay all the bills except for the mortgage. I even used a $100,000 inheritance to put an addition on the home. I just want to get out but I don’t want to lose what’s mine.
— Wife, for now

A. We’re sorry to hear about your marriage.

When a home is acquired during a marriage, both spouses generally have an interest in the home — and any equity — regardless of the manner in which the mortgage is titled.

That would be the case regardless of whether or not inherited funds were used to improve the property during the marriage, said Thomas Roberto, a family law attorney with Adinolfi, Lieberman, Burick, Falkenstein, Roberto & Molotsky in Haddonfield.

He said if there is no equity in the property, it may be a moot point, although a formal appraisal of the home may be required to determine the extent, if any, of the equity.

“If there is no equity, the question would then be why? If the equity was depleted because the spouse named on the mortgage ceased paying it without the other spouse’s knowledge, the other spouse may be entitled to a credit at the time of divorce,” Roberto said. “But, at any rate, not being a named party to the mortgage does not, by itself, negate a spouse’s interest in property acquired during the marriage.”

Roberto said if one spouse moves out of the marital home, it does not automatically extinguish or reduce that spouse’s interest in the home.

Many litigants are reluctant to leave a marital home during a divorce out of fear that they will be considered to have “abandoned” the property and would lose their equitable interest in it, he said.

Roberto said that’s not the case.

He said the mortgage company may only be required to communicate with the spouse who holds the mortgage, but the other spouse is still entitled to know if the mortgage is being paid.

“If a divorce action has already been initiated, the spouse named on the mortgage is obligated to disclose whether the mortgage is being paid in full and on time,” he said. “The marital home would be considered a marital asset and failing to pay the mortgage during the pendency of a divorce action would be considered dissipation of that asset.”

The “dissipating spouse” could be penalized and/or be required to make up the difference to the other spouse at the time the divorce is finalized.

Roberto said if a divorce complaint has been filed, neither spouse can sell or otherwise dispose of the home without the consent of the other party.

“The home is a marital asset and cannot be sold in the middle of a divorce absent the mutual consent of both parties or entry of a court order compelling the sale,” he said. “Even if a divorce action has not been initiated through the courts, however, both spouses are generally required to sign off on the sale — if their names are both on the deed — before it can be finalized.”

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This story was originally published on May 21, 2020.

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