Divorce Settlement Determines Property Ownership

Added December 19, 2008 by Ilyce R. Glink

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Summary: A husband, who will soon be divorced, lives in a home paid for by his wife and his father-in-law. The wife wants to know what rights her soon-to-be ex-husband has to the property since he's not on the mortgage note. It's possible the divorce court may decide that he's entitled to one quarter of the property. His soon-to-be ex-wife will get one quarter and her father owns half. The exact property ownership breakdown will depend on the divorce settlement.

Q: My husband and I are getting divorced. The house is in my father's name and in mine. My father put down $35,000 at the closing 7 years ago. The house payment came directly out of my paycheck (I work for my dad).

I left the house due to spouse abuse and my soon-to-be ex-spouse is living in the house. The judge ordered him to start paying half of the mortgage until the property settlement is done. My dad has been paying the other half of the mortgage.

What is the portion that each of us will get in the divorce settlement? Remember that my father and I are the only ones on the note.

A: If the property was purchased before you were married, then your ex-spouse might not be able to make a successful claim of ownership to the property. However, if you were already married when your father purchased the house, it's possible that the divorce court will find that your half of the property is actually marital property. That means it could be an asset on the line when it comes down to dividing things with your spouse.

If the property was purchased half by you and half by your father, and the law deems that your half falls within marital property, then your spouse might be entitled to a quarter share of the property.

If that's the case, your soon to be ex-husband would also be obligated for his share of the expenses for the home. Since he is living in the home, the judge has already ordered him to pay half of the expenses for the home. The question is whether the judge feels that he only needs to pay half the expenses because your father owns the other half of the home.

Home Maintenance Costs May Be Husband's Responsibility

Your father could make the argument that he is not getting any of the benefit of the home and that the person living in the home should actually pay all of the expenses of owning the home until the divorce settlement is final.

You and your attorney will need to strategize on a plan of action to deal with the many issues involved in your case. Just because your father owns part of the home won't mean that the judge won't consider your half share part of what you and your husband own. At the same time, if there is a mortgage on the property, your husband would have to assume part of that debt. When you take into account the debt and the value of the home, your husband may only be entitled to a small amount of money for what his interest in the home might be worth.

In dividing up all of your assets, the amount he might be deemed to own in the house is considered with all other assets. If you want to keep the home, you might be entitled to keep the home or your father might then be entitled to force the sale of the home should your husband be unwilling to negotiate giving up any interest he may have in the home during the divorce proceedings.

Dec. 19, 2008.

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