Home ownership/divorce question.

[TNDemo]

Don't know if things are different state to state but thought I would give it a go. I have a friend (really, it's not me) who want a divorce. She said a lawyer told her that if she leaves the home that it would be considered abandonment and she would lose rights to the house. I remember my mother telling me the same thing while she was married to the troll (30 long years) and they both stubbornly stayed and never divorced. When she got Alzheimer's he divorced her (although he was already in a nursing home and then I had to place her and the house was sold and divided between them) and as conservator I negotiated the divorce. I thought during this time I found out that it doesn't matter who leaves the house, that if both names are on the deed, the house belongs equally to both. What is right?

[malta blue]

1. I know in NY if one party leaves the home it is considered

abandonment, but I am not sure how it affects the distribution of equity in a home. NY is an equitable distribution state, and I do know, for example, if Mr MB and I were to divorce tomorrow, the majority of the proceeds would go to me, since it was the sale of my single person home that provided the downpayment funds for this home.

Sorry I can't be more helpful.
~MB

[ingac70]

2. She's in TN?

That house is half hers! She needs to seek new counsel.

[happyslug]

3. As a general rule, whose name is on the deed?

The rules do change from state to state, but these are the General Rules regarding Marital Property. Please check with an attorney licenses in your home state to be sure. These are the Rules in Most, if not all states, but I have to repeat check with an attorney in your state to be sure (These are all English Common Law rules on property and unless changes by your state legislature or your courts, these are the rules):

Who lives there is unimportant, the issue is who OWNS the house. If it is BOTH husband and wife, then no matter who leaves, it remains "Entirely Property". In some states it is called "Joint Property".

Entirety property is always between married couples, it is always exists with the right of Survivorship (on the death of one spouse it goes to the surviving spouse).

Joint Property is how more than one person owns property with the right of Survivorship (i.e. on the death of one co-owner it becomes the property of the other co-owners). In states like West Virginia that does NOT have Entirety Property, they treat Joint Property between Husband and Wife like Entirety property in states with Entirety Property.

The third method of joint ownership is Tenancy in Common, in Tenancy in Common the share of one co-owner goes to that persons heirs upon his or her death NOT the co-owners. Please note, in most states, except for Married couples, the law presumes Tenancy in Common NOT Joint Tenancy (Through many states that do NOT have Entirety property treat a couple upon buying house as Joint Tenants NOT Tenants in Common, the opposite rule if the co-buyers are NOT married). Also note this is formed when the property is PURCHASED and does NOT change till it is sold (Or otherwise a New Deed is made for the property).

Thus it does NOT matter who leaves a house, the key is HOW is it owned. Now circumstances can change this. For example if the Husband is in the house and he disposed of the items int he House and does damage to the house, the wife is in no position to stop it (Provided she could, which is rare). If one spouse does damage the property AND THAT CAN BE PROVED, it can be used to reduce the share of the person who did NOT do the damage.

The above is a simple explanation of a complex area of the law, the husband could claim he did NOT get support from his wife and demand compensation for the expenses of keeping up the house. Generally what happens is the couple files for divorce and as part of the divorce ask for equitable division of martial property. If the parties can not agree a Master is appointed to divide up the property (or the Judge may do it himself). The Master will only do it AFTER a hearing where both sides can present their arguments (please note, most divisions are agreed to, the house is viewed by a Realtor who gives what he or she thinks it will go for and the spouse that wants the house has to pay the other side 1/2 of the value of the house). Most people nowadays have two cars, so each get one and the inside property is often divided by the parties themselves, but if no agreement the Master will made the Division.

Four Comments:
1. Most courts DEMAND extra fees if equitable division of Marital property is requested, if you are low income this can be wavier, but pay it if the other side has substantial assets.

2. The pensions of BOTH parties are Marital Assets and thus subject to division. Pension funds do this all the time. You are only entitled to the part put into the pension while you were married, but that is part of marital property in most states.

3. Get a new lawyer unless he can point out the section of the law that says a spouse louses rights to Marital property. Now a dependent spouse loses right to spousal support if she leaves a house maintained by her husband (Can be "his wife", but generally a "her husband"). In my home state of Pennsylvania, where alimony is only permitted if you had spousal support BEFORE the divorce, this may be what the attorney is talking about (Child support is different it is an absolute right of the Parent who has the Children). In most cases today where the wife works, her ability to get Spousal Support and Alimony is limited unless he is making more than 30% more than she is (Remember we are talking about Spousal Support NOT Child Support).

4. Mexican or other "Quick Divorce". These are legal, but if you have any joint property such Divorcees will NOT cover the division of marital property, spousal support, alimony, or child support. The divorce itself is often the easiest part of the divorce, both sides agree and it is granted quickly. The real problem is dividing the marital property and who get the child and child support. My advice is stay local, they know what the local judges want. Given that the Divorce itself is such a small part of the Divorce it best to do it all at once.