Dividing Property After A Divorce
Ask the Real Estate Lawyer: Real Estate Law Q&A
REM # LAW 730
By Ilyce R. Glink and Samuel J. Tamkin
Summary: A ThinkGlink reader owns a home with
her ex-husband. He now would like his name off the mortgage and his equity out
of the home. Ilyce and Sam explain how to determine an equitable settlement.
Q: My ex-husband and I purchased a house together as joint tenants with rights
(article continues below useful links)
At the time we were already divorced, but reconciled. Six years ago, we split
up again. Since he left, he hasn't contributed to the mortgage, taxes, or any
of the expenses involved with the upkeep of the home.
Now he wants his name off the loan and wants his part of the equity. I am currently
unemployed. What are my options?
A: Unless your former ex files suit against you, he may have to wait until
you are employed and can refinance the loan to get paid.
If you refinance the home, you will be able to get a new loan in your name
alone and end up owning the whole title to the home.
Once you’re in a position to pay him off, you’ll need to decide
how much to pay him. There are many variables to consider when deciding what
to pay him. For example, should you determine the value of the house at the
time he left you and stopped making payments? Or, should you take the current
value of the house and deduct all the payment he should have made during the
last six years?
Start by finding out the following numbers: What the value of the home was
six years ago, what it’s worth today, and what you have put into it during
the last six years.
Then you can figure out if you owe him something or perhaps you’ll discover
he owes you. Your ex may feel that he can claim half of the equity in the property
(today’s value minus the mortgage), but he’s probably wrong.
If you do come up with a number on that basis, you would be correct in subtracting
what he should have paid for his share of the mortgage payments, taxes, insurance
premiums and maintenance costs during the last six years.
He might claim that you should have paid him rent for the last six years, but
it was his choice to buy with you. It was his choice to leave. If he had wanted
to get his money out of the home at that time, he should have requested that
the two of you settle up back then.
Has the home appreciated in value in the last six years and that is why he
now has come to you for his share? If so, you might want to talk to an attorney
about your case and discuss your options.
It’s important you discuss it with someone because if you’re unemployed
and decide you want to sell the house to get out of the burden of paying the
expenses of the home, you will need your ex-husband’s approval to sell
Samuel J. Tamkin is a Chicago-based real estate attorney. Ilyce
R. Glink’s latest book is 50 Simple Steps You Can Take To Sell Your
Home Faster and For More Money In Any Market. If you have questions for
them, write: Real Estate Matters Syndicate, PO Box 366, Glencoe, IL 60022
or contact them through Ilyce’s website www.thinkglink.com