Many questions arise each year regarding the ability of one
spouse, who owns the property, to sell without the consent of the other
spouse. Prior to May 28, 1980 the ability
to do this was extremely limited by the spousal rights of dower and curtesy.
(Space does not permit me to go into detail here.)
In 1980 the dower and curtesy laws were superseded by a new
right called the “right to joint possession of the principal matrimonial residence.” The statute provides, in part,
“During life every married person shall be entitled to joint
possession with his or her spouse of any real property which they occupy jointly
as their principal matrimonial residence and to which neither dower nor curtesy
applies. One who acquires an estate or interest in real property from a person
whose spouse is entitled to joint possession thereof does so subject to such
right of possession, unless such right of possession has been released, extinguished
or subordinated by such spouse or has been terminated by order or judgment of a
court of competent jurisdiction or otherwise.”
A recent column in the MoneyHelp.com asks “Can my husband
sell our home without my permission?”
Here’s the question:
Q. My husband and I purchased a condo before we got married
in 2001 and it was placed in his name only. We got married later that year. Our
marriage has been rocky for a while and seems to be getting worse. I found out
my husband is trying to sell it and not give me any of the funds acquired. Can
he do this? What are my legal rights?
— Worried
Our take on this is, unfortunately, the answer addresses the
wife’s concerns strictly from a property settlement point of view and did not
take into account that the soon to be ex-husband cannot sell the home without
the spouse’s consent based on the above statute. It also leaves out some important facts, such
as, have the parties separated or are they in the midst of a divorce action? In the first situation, if the non-owner
spouse has abandoned the property, she may have given up her right to joint
possession. In the latter, her attorney
should immediately file a Notice of Lis Pendens putting any potential buyer on notice
that the wife claims an interest in the property.
Here’s the full answer to the question posed by the MoneyHelp.com
reader:
A. We’re sorry to hear about this situation.
New Jersey is an equitable distribution state, which means
that marital property is divided equitably upon divorce – or fairly.
“Marital property” is defined as the assets and debts
acquired or earned during the course of the marriage, either individually or
jointly, including real property, personal property, retirement accounts and
bank accounts, as well as mortgages, loans, revolving debt, and the like, said
Jeralyn Lawrence, a family law attorney with Lawrence Law in Watchung.
She said in New Jersey, property titled in the name of one
spouse rather than both spouses is not enough to exclude that property from the
proverbial “marital pot.”
“By virtue of the fact that you and your husband purchased
the residence together in contemplation of marriage, with the intent to live
together during the marriage and enhance the marital estate, you have both
acquired an interest in the marital residence in the form of equity,” she said.
It’s also important to know the source of funding at the
time you and your husband purchased the marital residence and if your name is
on any mortgage, she said.
In the event you contributed toward the purchase of the
marital residence or named on the mortgage, these facts only further embolden
your claim to the equity in the home, Lawrence said.
In New Jersey, Courts recognize both financial and
non-financial contributions to the upkeep, maintenance and preservation of the
home when determining both party’s interest, without placing significant weight
on the names in which the deed is recorded, or mortgage is held, she said.
“Some of these relevant factors considered by the court are
contributions to the utilities to maintain the home, whether improvements were
made to the home utilizing marital income, whether either you or your spouse
invested physical labor into the upkeep of the home, and/or what other marital
efforts, if any, caused an increase in the value of the home,” she said. “If
you did contribute to these efforts in some capacity, personally or
financially, you have grounds to claim a portion of the equity in the
residence.”
So your husband is not entitled to any greater share of the
equity in the marital residence simply because he is individually named on the
deed, she said. It may be possible for him to list the residence without your
consent for that reason, but he is not entitled to retain all the proceeds for
the sale without providing you with your share of the equity, she said.
A court also has the power to restrain him from listing the
sale of the home without your participation and consent, Lawrence said.
Because the specifics of your case matter here, you should
speak to an experienced family law attorney who can review all the details.
Email your questions to Ask@NJMoneyHelp.com.
This story was originally published on March 3, 2021.
NJMoneyHelp.com presents certain general financial
planning principles and advice, but should never be viewed as a substitute for
obtaining advice from a personal professional advisor who understands your
unique individual circumstances.
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