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Rights to marital home

Discussion in 'Division of Marital Property' started by davefromnj, Aug 15, 2020.

  1. davefromnj

    davefromnj Law Topic Starter New Member

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    My divorce property settlement (it was agreed to and signed-off by both parties, submitted to a judge and made a court order) is terribly vague..it states (and this wording was her doing)

    That the plaintiff and the defendant own the following property as their family residence ______
    That the plaintiff shall continue to reside at the above mentioned residence until the child graduates high school.
    That the Plaintiff and defendant shall have rights to title and ownership to the family residence.
    That upon the sale of the family residence, net proceeds from the sale will be split equally between the plaintiff and the defendant.

    That is ALL what is said about the martial home in the property settlement agreement. I wanted a date of sale put in the agreement but my ex refused stating she did not want to spend one extra day in the home she had to.

    The divorce settlement gave my ex 100% custody of our daughter with me only allowed < parenting time > time on one or two days every other weekend (because my ex claimed I was a bad parent SMH). So I had paid the top amount of child support since day one (since November 2016). As the months passed, she grew tired of parenting and I was spending more and more time with my daughter and covering more and more of her expenses. Our daughter began complaining that her mother was abusing her. An incident happened this past February where my ex physically abused our daughter and I told my ex to GTFO of the house. To make a long story short - there is no longer a relationship between my ex and daughter. I have 100% custody and I live in the house. I have obtained a court order terminating my child support obligations and establishing my 100% custody of our daughter). I am also in the process of applying for child support from my ex.

    Based on the above - I feel like there is no trigger mechanism to sell the house in the agreement.

    I paid the down payment on the house, paid $200K out of my own savings for the renovation, and paid 90% of the mortgage myself. My ex has refused any buyout less than 50% of the value of the home.

    Can I tell my ex, I am planning to live in the house until I die (at no cost to me - I paid off the entire mortgage, depleting all of my savings, 2 years ago) and she has no legal right to force me to sell at any time nor charge me any rent?

    I would also want to put some kind of protection for my daughter in my will - that she can reside in the house free of charge as long as she wants, further disabling my ex from selling and recouping half the value of the house?
     
  2. adjusterjack

    adjusterjack Super Moderator

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    True. There doesn't appear to be even an implied time frame though you are stuck with her living there until your daughter finishes high school whether your daughter lives there or not.

    Doesn't matter. As long as you are both on the deed, it's 50/50. Neither of you can sell without the signature of the other unless you file for partition and then the court auctions the property and divides the proceeds 50/50. She's pretty well got you over a barrel.

    You can "tell" her anything you like but you'd be wrong about her ability to force the sale. Google "partition action."

    Wrong, again, what you put in your will doesn't bind the other owner of the home. Besides, when you are dead, she inherits the house under right of survivorship. It's not part of your estate at that moment so anything in your will about the house is not enforceable.

    Why didn't you get this house thing addressed when you went to court for custody of your daughter?

    Anyway, you might want to consider buying her out for 50% now because the longer you wait, the higher the value of the house will be by the time it does get sold and the more it's going to cost you.

    I know, hard pill to swallow. But you married her, you bought the house together, you had the child together. Now it's splitsville and you don't want to give her anything. Doesn't work that way. Been there.
     
  3. welkin

    welkin Active Member

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    I think you are missing the backside of your situation. Your Ex owns half of the house and yet you maintain it. I assume that you pay any mortgage, the property taxes, insurance, utilities, and maintenance. Are you receiving any payments from your Ex to offset those expenses? I would be keeping good records as to what those costs are.
    There is no such thing as owning and living in a house at no cost unless you have a benefactor or trust paying the expenses. That goes for you and or your daughter.
     
  4. davefromnj

    davefromnj Law Topic Starter New Member

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    My divorce was done via The Divorce Center due to my ex's desire to rush the process. In my final divorce decree as signed by the Judge, the following is stated:

    It is further ordered that a certain Property Settlement Agreement dated July 22, 2016, and marked J-1 is hereby incorporated by reference into the Final Judgement of Divorce and made a part hereof with the understanding that the Court took no testimony as to the merits thereof and therefore makes no judgment with respect thereto.

    Does that mean the court will no enforce the property settlement agreement?
     
  5. Zigner

    Zigner Well-Known Member

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    This post is now irrelevant.
     
  6. adjusterjack

    adjusterjack Super Moderator

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    Nope. What the judge is saying is basically "You two cooked up this agreement, I had nothing to do with it, you are stuck with the consequences."

    The agreement is still binding and enforceable.
     
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  7. davefromnj

    davefromnj Law Topic Starter New Member

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    Well let me ask you;

    1) Is it fair to conclude that since the date of the divorce my ex is responsible for 50% of the RE taxes, insurance and major repairs?

    2) I paid off the mortgage in Apr 2018 with an IRA early distribution, is it proper to conclude that she owes me, both, half the payoff amount and half the tax cost of the gross distribution?

    3) Once I paid off the mortgage she decided sh would pay all the RE tax and Insurance in order to pay down her debt (from the payoff) to me, now she is claiming 100% of the RE tax and insurance should be applied to her debt - I argue only half - as one half was her contribution towards the RE Tax/Ins, the other half was her repaying debt in the form of paying my share?

    4) I moved back into the house on 3/1/20 because she was physically and emotionally abusing our daughter (actually had gone on for some time, I gave her warnings, she made promises, but I finally had to remove her)...

    a) She had no place to go so I offered to allow her to move in the apartment I had been living on understanding she had to stay until the lease is up. She spontaneously moved out after two months (giving me one week notice) and left me with 4 months remaining of lease payments - to which she reacted - too bad so sad. I say she should reimburse me for those four months - because there was no legitimate reason for her to move out other than to screw me - and I had no other choice - she had to leave the house, my daughter was literally scared for her life.

    b) Since the day I moved in - I say she should be responsible for 50% of the RE tax, Ins and major repairs. She is refusing to reimburse me.

    Should any of the above be deemed favorable for me, lastly - can anyone recommend a misogynistic Family Law attorney in New Jersey - i am not happy with the one's I have found on my own.

    5) Is it reasonable to request my daughter and I stay in the house until my daughter graduates college?

    Thank you very much for your advice.
     
    Last edited: Aug 31, 2020
  8. army judge

    army judge Super Moderator

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    A misogynistic Family Law attorney would be oxymoronic, assuming one exists, and impossible to find one because no attorney would promote herself/himself by pronouncing a reprehensible bias.

    One can find, however, a Family Law attorney that zealously defends the rights of fathers and husbands.

    In fact, this is one the most notable such firms in the USA (I am NOT promoting the firm, nor am I connected to the firm, just demonstrating it exists):

    Fathers Rights Lawyers & Divorce Attorneys | Cordell & Cordell

    Cordell & Cordell was co-founded in 1990 by Joseph E. Cordell and his wife, Yvonne, as a general practice firm with a focus on men's divorce and family law. Mr. Cordell noticed about 98% of the firm's clients were men, and the need for a level playing field in divorce courts sparked the idea of Cordell & Cordell.

    The continuing effort of Cordell & Cordell to put clients first has led the firm to represent tens of thousands of clients while currently maintaining a 94 percent attorney satisfaction rate based on client-completed surveys.
     
  9. adjusterjack

    adjusterjack Super Moderator

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    I can agree with what you "feel" and "conclude" that is fair and reasonable but my comment won't be worth what you paid for it.

    Nothing changes until you go back to court and have the judge rule on custody, support, and division of assets. How much of a change in your favor happens is anybody's guess.

    Until then she can force the sale of the home via partition and get 50% of the proceeds.
     
  10. davefromnj

    davefromnj Law Topic Starter New Member

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    With all due respect, your partition action concept is BS (at least in NJ), it only works for commercial or investments in non-residential real property. If someone files a partition action action in NJ on residential real property that is occupied by one of the owners the court will order mediation and they will absolutely 100% not auction the property.
     
  11. justblue

    justblue Well-Known Member

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    Please site your source for your ^ opinion. Thank you.
     
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  12. army judge

    army judge Super Moderator

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    This ^^^ is your problem, OP. You agreed to this ^^^.



    Partition is a legal action recognized in New Jersey that allows for dividing real estate owned by two or more people.

    Real property held by co-owners as tenants in common or joint tenants (but not by spouses as tenants by the entirety or by N.J. registered domestic partners) may be partitioned.

    The partition process is governed by statute, N.J.S.A. 2A:56-1 et seq.

    If one or more of the co-owners of real estate is or are unwilling to sell the property and divide the proceeds of sale in accordance with all of the co-owners’ ownership interests, partition is the only way that a person who owns a share of real estate as a tenant in common or joint tenant can separate his or her interest from the other co-owners.

    The remedy of partition requires the filing of a lawsuit in the Superior Court of New Jersey, usually filed in the County where the property is located.

    PARTITION | NJ REAL ESTATE LITIGATION LAWYERS.


    New Jersey provides an equitable remedy known as partition. The term “partition” means the division of property among co-owners. Real property held by co-owners as a tenancy in common or a joint tenancy (but not by spouses as tenants by the entirety or by N.J. registered domestic partners) may be partitioned. The process for doing this is governed by New Jersey statutory law. N.J.S.A. 2A:56-1 et seq. Any co-owner can seek a partition, provided he/she has not previously waived their right to do so.

    Partition Actions When Property Co-Owners Can't Agree | New Jersey Law Blog

    FINALLY:


    Judgment Creditors Cannot Partition Property Held by Spouses as Tenants by Entirety

    In a case of first impression the New Jersey Appellate Division crushed the hopes of judgment creditors from forcing a partition sale of property owned by a married couple as tenants by the entirety in order to satisfy the judgment debt obtained against only spouse. Jimenez v. Jimenez, Docket No. A-2495-16 (App. Div. May 8, 2018).

    In this family dispute the plaintiffs obtained a consent judgment against the defendant for $225,000. In the course of post-judgment collection efforts plaintiffs learned that defendant co-owned a vacant parcel of land with his wife in New Jersey. Plaintiffs filed a motion in their judgment case seek a partition and sale of the vacant property. Defendant opposed the motion, arguing that partition of property owned jointly as tenants by the entirety is not permitted under New Jersey law.

    Specifically, defendant relied the express language of N.J.S.A. 46:3-17.4 which confirms that:

    Neither spouse may sever, alienate, or otherwise affect their interest in the tenancy by entirety during the marriage or upon separation without the written consent of both spouses.

    The trial court sided with defendant, holding that N.J.S.A. 46:3-17.4 does not permit judgment creditors from compelling a partition or sale of property held as tenants by the entirety. Plaintiffs appealed.

    The Appellate Division affirmed based on the plain language of the statute. The appeals court noted that prior to the enactment of N.J.S.A. 46:3-17.4 in 1988, New Jersey courts possessed the authority to order the partition and sale of a spouse’s interest in jointly held property. But the passing of the statute in 1988 was a game changer in persuading the appellate court to uphold the trial judge’s ruling. As the appeals court explained:

    “. . . we conclude the statutory prohibition applies to a situation where, as here, one spouse’s failure to pay his personal debts to third-party creditors has resulted in a money judgment entered against him alone. Otherwise, a free-wheeling spouse, by amassing such individual debt, could detrimentally “affect” the other spouse’s interests in their co-owned property.”

    The Appellate Division cautioned, however, that its opinion should not be construed to prevent claims involving fraudulent transfers of assets between spouses to avoid a judgment creditor’s reach.



    PARTITION PROPERTY TENANTS BY ENTIRETY NJ | JUDGMENT NJ.
     
  13. davefromnj

    davefromnj Law Topic Starter New Member

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    So, upon meeting my ex-wife, she was an illegal alien who was already married to an American Citizen. She if from Kazakhstan and met her husband through mutual friends (he visited his parents who lived in Kazakhstan quite frequently). He offered to bring her to America but she said she would not go unless they got married and so they did. Within three months he kicked her out. I meet her about a year later, fall in love and propose 8 months later. A few months before the wedding she tells me she is still married to her ex, but afraid to approach him regarding a divorce due to the way it ended. So she comes up with an idea, a costly one, where she had a friend in Kazakhstan bribe a court clerk to forge a divorce certificate (I have it in writing that the divorce was obtained via bribery). I marry her, she becomes pregnant, I put her through undergrad and graduate school, then starts buying luxury cars every 3 years, we own a house together, she completely drains me financially and then demands a divorce. We get divorced, she gets custody and does her best to turn our child against me forcing me to pay for everything. As it turns out she was abusing our child and I had to take over full custody and our child now needs therapy for the physical and mental abuse she suffered through. Now the ex wont pay for anything and wants the house sold so she can get "her share" in cash now. CRAZY question - do I have any hope of somehow having our marriage deemed invalid and thereby depriving her of the "marital" property? Her first husband actually lives 20 minutes from me in NJ, he has since remarried.

    Thank you so much for any opinions or advice you can lend!
     
  14. Zigner

    Zigner Well-Known Member

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    No.
     
  15. army judge

    army judge Super Moderator

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    You could be in legal jeopardy for "aiding and abetting marriage fraud".

    This NJ licensed attorney explains it all:

    What are the penalties for marriage fraud in New Jersey? - Immigration Attorney - Eatontown NJ

    Various news and sundry accounts:

    Two Indicted on Conspiracy to Commit Marriage Fraud, Marriage Fraud, Aiding and Abetting, Visa Fraud, False Statement in an Immigration Proceeding and Preventing Testimony of a Person in an Official Proceeding Charges | USAO-EDNC - US DOJ News Today

    Aiding and Abetting/Accessory - FindLaw

    Wilmington Woman Pleads Guilty to Aiding and Abetting False Statements in Connection with a Conspiracy to Commit Marriage Fraud

    I suggest you discuss ALL aspects of what you desire to know with an attorney, hopefully for you, the one you hire.

    I also suggest you stop posting this "sad, but predictable story"on the internet.

    You might also consider a single life, once this has been sorted.

    I regret this happened to you, so please proceed cautiously for the rest of your life.

    Scammers come in all genders, ages, races, creeds, and religions.
     
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