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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 of survivorship.
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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 the home.

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




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