What to do if a couple is getting divorced but the wife moved out of the house 2 years ago so the husband has been paying the mortgage ever since with no help from her?

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What to do if a couple is getting divorced but the wife moved out of the house 2 years ago so the husband has been paying the mortgage ever since with no help from her?

Now she wants a buyout or for him to sell the house move out and saying she should get half. Is this legal? Is she still entitled to half the house or be buyout if she hasn’t been paying in and not living there?

Asked on December 30, 2012 under Family Law, New York

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

If the couple lives in a community property state, community property is property acquired during marriage.  Community property also includes income during marriage.  Each spouse has a one half interest in the community property.

Separate property is property acquired before marriage or after the marriage ends.  Separate property also includes income before marriage or after the marriage ends.  A spouse has no claim to the other spouse's separate property.

If the house was purchased during marriage, it is community property and each spouse has a one half interest in the house.

If the house was purchased before marriage by the husband, it is his separate property and the wife has no claim to the house.

If the house was purchased before marriage by the husband, but the husband used income during marriage to pay the mortgage, that income during marriage is community property and the wife would have a one half interest in the amount of the mortgage payments made during marriage.  If the house was purchased before marriage by the husband and the husband used income before marriage or after separation with no intent to reunite to pay the mortgage, those mortgage payments are the husband's separate property and the wife has no claim.

If the house is community property, the wife has a one half interest in the house whether this is a buyout or whether the house is sold and she gets half the proceeds from the sale subject to the limitations discussed above.

 


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