adminMy husband of close to 20 years left me and our two children about a year and a half ago. I have two college degrees and worked while he got his college education, which was paid for by his parents. I paid our rent, and I cashed out my retirement account (I know that was a bad idea now) in order for us to buy our first home.
Before our marriage, we both agreed that I would be a stay-at-home mom. On top of that, I ran my own business and worked several part-time jobs. When he decided to leave out of the blue, he said he didn’t want custody of the children and that I could basically have the house. Now it turns out that he still wants 50% of the house — but the kids and I need this house to live in.
We do not want to uproot the children, but that means I am stuck with the mortgage payment, utility bills and maintenance costs. When we sell the house in about five to six years, if we split it evenly, I will be screwed, because I am the one putting money into the house and I am the one making the mortgage payments, which are also going toward the principal.
Am I crazy for thinking that I should get a significantly higher percentage of this house when we sell? I am referring to things that are noncosmetic, such as seal coating the driveway before it crumbles and installing a new roof, heating unit, fencing, etc. These are all things that are required to maintain a house and also can potentially increase the value of the house.
He said he will not pay any mortgage or housing costs or contribute anything to fix the house and maintain it. I have full custody of our children, and he pays approximately $200 per child per month in child support. But he has left me in a quandary. Please help, and let me know what I should do. I am tempted to lawyer up.
Holding onto Our Home
Related: ‘Buy a yacht,’ he told me. My fiancé, 67, is cutting his kids out of his will — and leaving everything to me. Should I be suspicious?
Dear Holding,
Give into the temptation. The time has come to take the gloves off. The sooner you bring a legal resolution to this situation, the better. You don’t say where you live, but all U.S. states except for Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin are equitable-distribution states, meaning assets in a divorce are divided equitably and fairly, if not exactly equally.
The other states follow the principles of community property — meaning that anything you brought into the marriage, you take with you, as long as those assets were not commingled. Commingling occurs if a person buys a home with their own money before they marry and their spouse contributes to a major renovation, or they use money from a joint account for the mortgage.
In your case, I presume both of your names are on both the deed and the mortgage. If a person goes on the former, their name should always be on the latter, as well. Believe me when I say that’s not always the case, and one partner gets stuck paying the mortgage while the other has no responsibility except to collect their share of the proceeds when the home is sold.
Change is hard, especially one as sudden and unexpected as yours. But I have full confidence that you will look back on this period of your life and think, “That’s the best thing that ever happened to me. If he hadn’t left when he did, I wouldn’t have had all of these new experiences, and I wouldn’t have had the space in my life to meet these new friends.” Every trial and tribulation comes with limitless possibilities.
A judge could order a home sale
So no, you’re not crazy, and you never were, but you would be at least unwise to wait before bringing some kind of legal agreement to bear on your husband and his actions. The longer this goes on, the more difficult it will be to ensure that your estranged spouse pays his fair share. Don’t wait five years. You are both responsible for paying the mortgage, and a judge may order the home be sold.
I asked a divorce lawyer about your situation on your behalf. “I have trouble believing that any judge would not take into consideration your far higher contributions toward the house’s equity when ultimately dividing it up between you two,” says William C. Gentry, owner of Gentry Law Firm in Marietta, Ga. (Georgia is one of those aforementioned equitable-distribution states.)
“Any retirement-account contributions you made before you two got married would likely be considered your separate property and returned to you off the top, while contributions you made after he left the house could also possibly be considered yours off the top,” says Gentry, who is the author of “I Want Out: A Woman’s Guide To Finding Peace Through Divorce.”
“Negotiate a buyout amount as if you were selling your home today.”
This is a challenging time to sell a home and buy another, with the 30-year mortgage-interest rate hitting 8% for the first time since August 2000. You may also have to deal with capital-gains tax. All the more reason for you to seek legal counsel and to create a road map to hold your husband accountable. Make sure you keep a detailed list of all of your expenses.
Aside from selling the home and refinancing the mortgage in one person’s name, the most desirable way to resolve this would be to buy your husband out of the house, which you might not be able to afford to do, or to sell and downsize to a smaller property. You could explore a home-equity line of credit or home-equity loan, but those can get expensive.
And now a warning about the legal limbo you currently find yourself in. “If your home is jointly titled with your ex, until you get a divorce, your ex is likely to inherit the entire house if you pass away before it’s sold,” says Mike Fiffik, a LegalShield attorney at Fiffik Law Group. “Get your divorce finalized and negotiate a division of your marital assets, including the house now.”
Negotiate a buyout amount as if you were selling it today. “Any increases in net value or equity due to mortgage payments you make post-separation can be all yours after you pay your ex the agreed upon figure,” Fiffik says. “Change your estate-planning documents to protect your children’s right to inherit directly from you, and ensure your ex isn’t involved in managing your money for them.”
Retirement accounts and child support
For a parent bringing up two children, $200 a month per child does not sound like a lot of child support, and Gentry agrees that this amount should be renegotiated. The average child-support payment is $5,150 a year or $430 a month, according to the U.S. Census Bureau’s latest data; that, of course, would depend on your marital income, expenses and your cost of living.
OK, so you used your retirement fund to buy this house. You did what you felt like you had to do at the time and, yes, you would not advise others to do the same. But the past is another country, and if you had not made that “mistake” you would not have learned the lessons that you needed to learn about protecting your finances 30 years from now, and making decisions where you put your needs first.
Even while acknowledging and processing our losses, we need to believe that good things can come from them, too. If you had not met your husband, you would not have had your two children. If you had not bought this house, who knows where your life would have taken you: a property with faulty wiring or black mold? You will never know. Forgive yourself for past decisions and embrace what comes next.
We all make mistakes. Smoke detectors were discovered by accident when smoke from Swiss physicist Walter Jaeger’s cigarette set off a sensor that was originally designed to detect poison gas. And in 1928, Alexander Fleming, a bacteriologist, found mold in a petri dish, but the area around the mold was free of bacteria. It led to the discovery of penicillin.
Let your “mistakes” lead you to the discovery of yourself when the dust settles on this divorce.
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Previous columns by Quentin Fottrell:
‘For religious reasons, I cannot invest to earn interest’: I’m 53 and expect to earn $90,000 a year. Is it too late to start investing?
My wife and I bought a beautiful lakeside home for $700,000. It’s now worth $1.2 million. Do we sell now to avoid capital gains?
‘I do not trust many people due to unfortunate life experiences’: I’m leaving all my estate to charity. Should I make a will or a trust?
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