03 Mar Can my husband sell our home without my permission?

Q. My husband and I purchased a condo before we got married in 2001 and it was placed in his name only. We got married later that year. Our marriage has been rocky for a while and seems to be getting worse. I found out my husband is trying to sell it and not give me any of the funds acquired. Can he do this? What are my legal rights?

— Worried

A. We’re sorry to hear about this situation.

New Jersey is an equitable distribution state, which means that marital property is divided equitably upon divorce – or fairly.

“Marital property” is defined as the assets and debts acquired or earned during the course of the marriage, either individually or jointly, including real property, personal property, retirement accounts and bank accounts, as well as mortgages, loans, revolving debt, and the like, said Jeralyn Lawrence, a family law attorney with Lawrence Law in Watchung.

She said in New Jersey, property titled in the name of one spouse rather than both spouses is not enough to exclude that property from the proverbial “marital pot.”

“By virtue of the fact that you and your husband purchased the residence together in contemplation of marriage, with the intent to live together during the marriage and enhance the marital estate, you have both acquired an interest in the marital residence in the form of equity,” she said.

It’s also important to know the source of funding at the time you and your husband purchased the marital residence and if your name is on any mortgage, she said.

In the event you contributed toward the purchase of the marital residence or named on the mortgage, these facts only further embolden your claim to the equity in the home, Lawrence said.

In New Jersey, Courts recognize both financial and non-financial contributions to the upkeep, maintenance and preservation of the home when determining both party’s interest, without placing significant weight on the names in which the deed is recorded, or mortgage is held, she said.

“Some of these relevant factors considered by the court are contributions to the utilities to maintain the home, whether improvements were made to the home utilizing marital income, whether either you or your spouse invested physical labor into the upkeep of the home, and/or what other marital efforts, if any, caused an increase in the value of the home,” she said. “If you did contribute to these efforts in some capacity, personally or financially, you have grounds to claim a portion of the equity in the residence.”

So your husband is not entitled to any greater share of the equity in the marital residence simply because he is individually named on the deed, she said. It may be possible for him to list the residence without your consent for that reason, but he is not entitled to retain all the proceeds for the sale without providing you with your share of the equity, she said.

A court also has the power to restrain him from listing the sale of the home without your participation and consent, Lawrence said.

Because the specifics of your case matter here, you should speak to an experienced family law attorney who can review all the details.

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This story was originally published on March 3, 2021.

NJMoneyHelp.com presents certain general financial planning principles and advice, but should never be viewed as a substitute for obtaining advice from a personal professional advisor who understands your unique individual circumstances.