My fianc and I are both on the title of a home but Im the only one on the mortgage. Who has to move?

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My fianc and I are both on the title of a home but Im the only one on the mortgage. Who has to move?

We are about to separate and we have 2
children together. I work full time and she
works under the table part time. She isnt
willing to move out and we have only made 4
mortgage payments. If the title is in my name
and we go to court wouldnt she have to move
out?

Asked on June 12, 2018 under Real Estate Law, New York

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

If you and she are both on the title, you are both owners and so neither one has to move: you each have equal rights to the home as co-owners, and as owners, you both have the right to live there. That you are the only one on the mortgage means, unfortunately, that you are the only one who has to pay the mortgage but has *nothing* to do with ownership of the property or right to live there: you unfortunately are in a position where she, being on the title but not mortgage, has the rights of ownership without the obligation to pay.
If you and she cannot work things out voluntarily, you can bring a type of legal action traditionally called an action "for partition" (though your state may have a different name for it) in which one of the owners of real estate, when he and the other owner(s) are at loggerheads, asks for a court order forcing the sale of the home. The court has the power to compel the sale of the house: any proceeds, after paying off the mortgage (and any tax debts or other liens) and paying costs of sale will be split among the owners. This type of action can be very complicated for a non-lawyer: you are advised to retain an attorney to help you.
In the action, if you can prove you have paid much more of the mortgage, you may be able to get the court to order that you get a larger share of the proceeds than her.


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