Dear Quentin,
My husband and I were married for 17 years. We divorced 5 years ago. While we were married we had a home built, and we lived in the home until we separated.
When we bought the house, we were advised to only put my husband’s name on the loan, because I had already purchased a home years before. My name was added to the deed.
The home was not mentioned in the divorce decree. My ex-husband sold the home this year, and made a significant profit. Am I entitled to any portion of the profit and if so, how do I get it?
Ex-Wife
Dear Ex-Wife,
Something ain’t right.
I’m curious to know who “advised” you not to put your name on the home that was purchased during your marriage? Your husband’s lawyer? If so, he was representing your husband’s interests — not yours. Your own legal counsel? That seems unlikely. Did you sign a prenuptial or postnuptial agreement giving up all rights to this home? Did you agree that your husband would alone pay the mortgage? He can’t sell a home without your signature, if your name was — in fact — on the deed.
If your husband walked away from your marriage, and took the marital home with him, and told you that your name was on the deed and not on the loan, you should own 50% of the property. If he put your name on the loan and not on the deed — the opposite to what you believe you signed when you bought this house and, honestly, sounds more likely given his subsequent actions — you should still own a share of this home upon your divorce. It was bought during your marriage, and should be treated as community/marital property.
Stress and trauma can affect our decision making, and when people go through major life events like divorce and death, they are vulnerable to being taken advantage of. Rushing a divorce without adequate legal advice, not knowing what you are signing, and erroneously valuing and characterizing marital assets are all a risk. Some people are so desperate to get out of an unhealthy marriage, they are prepared to walk away from assets to which they are entitled, while others stay in bad marriages for financial reasons. Neither option is ideal.
Your letter suggests that you either did not know what you were signing — in terms of the deed and mortgage documents and divorce papers — and/or you did not have adequate legal counsel. I can’t imagine a divorce lawyer worth their salt standing by while your husband walked away with a family home that was purchased during your marriage. There is no mention of a prenuptial agreement. It seems unfathomable to me that this happened. There are obviously a lot of unknowns in your story, but the most important fact is when this home was purchased.
Anything you buy during your marriage — including a house — is regarded as marital property in most states, even if it’s only titled in one spouse’s name. Gifts and inheritance, and assets listed in a prenuptial agreement as separate, are non-marital property. Before getting married, it’s important to discuss financial goals, responsibilities and, as you have discovered, ownership of assets. In a community-property state, assets acquired during the marriage are usually divided equally. In an equitable-distribution state, assets are divided fairly, if not always evenly.
The other elephant in the room is the statute of limitations, which varies by state. In California, for instance, the statute of limitations is three years. “The statute of limitations to reopen a divorce settlement agreement is three years,” according to Boyd Law, which is based in Los Angeles, Calif. “Once that time period has passed, you can no longer re-visit the division of assets agreed to in the settlement. The divorce settlement agreement is a binding contract for the dissolution of the marriage and cannot be broken or re-opened to contest once the statute of limitations passes.”
So before you allow any more time to pass, seek out fresh legal advice. Your future self may thank you for taking action now rather than later.
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Previous columns by Quentin Fottrell:
‘I’ve been living inside a silent divorce’: I want a ‘kitchen-table’ separation from my husband without lawyers. Is that a good idea?
‘I cashed in my retirement account to buy our home’: My husband left me and our two kids and won’t pay the mortgage. What now?
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?
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