New Jersey Options for the Marital Home FAQs

Our house is worth $150,000. The mortgage is $45,000. I want to stay in the house with the kids until they finish high school. After that, we can sell. Will this be a problem? The kids are 5,7 and 8.
It is very possible that the judge will not give you that option. With so much equity in the house, the judge may decide to have it sold sooner, so your spouse won't have to wait so long to use his share of the equity. If the children were teenagers and established in the neighborhood and school, the judge would probably let them finish high school before ordering a sale.

Isn't there some way I can stay?
There are several possibilities. You may be able to purchase the house by paying your spouse his share of the equity. This money could come from outside sources, such as a second mortgage; or it could be from your share of other assets, such as retirement benefits or investments.

Second, you could give your spouse something he wants in another area of your settlement agreement in exchange for his agreement to postpone sale of the house.

Third, you could each compromise on some date in between the one you want and the one he wants.

If I buy the house, will my spouse still have to help with repairs?
Probably not. After you buy, the house is your asset and you will be responsible for it. You will have to take care of it with your income, including income received for alimony and/or child support.

What if I don't buy, and we sell now? Will he help with repairs?
Most likely you will be jointly responsible for repairs, since you will be jointly sharing in the proceeds of sale. If you make an agreement, include some provision for this issue. You should also consult with each other before doing any repairs, so there is no disagreement later about what was done and the cost. Your agreement should provide for this, as well.

If I live in the house, and we both still own it, can I have my boyfriend live there?
It's likely that the judge will not allow you to have him live there, although he can visit. You will be considered to have "exclusive possession" of the home, which means only you and not your spouse can reside there. However, in consideration of your spouse's contribution to your budget and his joint ownership, the judge is likely to rule in his favor if he does not agree to have your boyfriend live there.

You might ask your spouse if he will consent in exchange for you giving him some reduction in the financial contribution he makes. This is a solution you and your spouse can use, even though it is not something the judge would order.

My spouse wants to buy another house now, but I don't agree to sell the one the children and I live in. He says he wants his money out of the house now, so he can move on. Any ideas?
He may be able to use some of the house equity (through a home equity loan) to enable him to buy another property. If you are going to buy his interest in your house, you would repay the home equity loan, but if you are not buying his interest, perhaps he is able to pay it along with his new mortgage. If he is situated in another home, he might be more willing to let you and the children stay in the marital home for the length of time you wish. Check with your tax Advisor® about this. Also, you would have to sign the home equity loan along with your spouse.

My brother and his wife are getting divorced. They can hardly afford their house, even with both incomes. Now they are separating. What should they do?
It may be a good idea for them to make a plan for the house before they separate. For example, if they sell before they separate, they each have a place to live in the meantime and can make the mortgage payments using both incomes.

Alternatively, one may leave the house and make contributions to the mortgage payments while the house is on the market. For this to occur, the person leaving will probably need to live with a relative until the home is sold.

Another possibility is to rent the house, but that has its own set of problems and one of the parties would have to oversee the tenants and collect the rent. It's also possible that the house will not rent for the amount due on the mortgage each month. In that case, the parties would need to each contribute additional funds to make the mortgage payments.

The house, if sold, will not even pay the mortgage balance. The value has declined. Can they do anything besides sell?
If they feel there is no way to sell and break even, they can consider giving the house back to the lender that holds the mortgage. This is called a deed in lieu of foreclosure. They can only do this if the lender agrees. Otherwise, if they stop making the mortgage payments, the lender will foreclose.

If they sell and don't break even, they must each put in enough to cover the mortgage at the sale. Or, they may be able to get the lender to take the sale proceeds in full satisfaction of the mortgage. Their attorneys can try to negotiate this for them.