divorce-down payment gift

[he left me]

What is the name of your state (only U.S. law)? Massachusetts I'm new to the "forum arena" so please bear with me. When we purchased our home, my mother(who lives with us and is legally blind) gave us the down payment on the house and we took out a mortgage for the rest. She does not appear on the mortgage nor the title. My question is... What legal document do I need from her to protect the "gift" from not becoming part of the 1/2 & 1/2 split in the divorce? In other words my husband should only be entitled to 1/4 of the house. Am I wrong?

 

[JETX]

My question is... What legal document do I need from her to protect the "gift" from not becoming part of the 1/2 & 1/2 split in the divorce? In other words my husband should only be entitled to 1/4 of the house. Am I wrong?

You're wrong. At the time of the gift, it was (presumably) given EQUALLY to both of you. The fact that you are now separating does NOT alter that fact.

 

[he left me]

Even though my Mom will still live with me after the divorce, why would he still be entitled to the gift? We need that portion to stay in the house. My 2 daughters still live with me also.

 

[JETX]

Even though my Mom will still live with me after the divorce, why would he still be entitled to the gift? We need that portion to stay in the house. My 2 daughters still live with me also.

Okay, lets try this again....
At a certain point in time, a gift was made to BOTH of you (as a couple). No one can then later CHANGE the 'terms' of the gift, at least without a court order.

Lets say that three years ago, I gave BOTH of you $1000 to buy a car. Now, you have decided to get a divorce, he has the car. Would it be proper for me to now come to you and demand that you pay me $500 of the gift back??
Of course not.

 

[mistoffolees]

What is the name of your state (only U.S. law)? Massachusetts I'm new to the "forum arena" so please bear with me. When we purchased our home, my mother(who lives with us and is legally blind) gave us the down payment on the house and we took out a mortgage for the rest. She does not appear on the mortgage nor the title. My question is... What legal document do I need from her to protect the "gift" from not becoming part of the 1/2 & 1/2 split in the divorce? In other words my husband should only be entitled to 1/4 of the house. Am I wrong?

Jetx is right - there's no prima facie reason why your mother would be entitled to anything. Furthermore, why do you think she's entitled to 1/2?


However, there is one possibility that might help. MA is an equitable distribution state. If you can convince the judge that it would be more fair for your mother's gift to come back to you in the distribution, the court has the leeway to do so. Sounds like a long shot and you might not do yourself any favors if you come across as a self-centered complainer who is out to cheat your stbx.

 

[LdiJ]

Jetx is right - there's no prima facie reason why your mother would be entitled to anything. Furthermore, why do you think she's entitled to 1/2?


However, there is one possibility that might help. MA is an equitable distribution state. If you can convince the judge that it would be more fair for your mother's gift to come back to you in the distribution, the court has the leeway to do so. Sounds like a long shot and you might not do yourself any favors if you come across as a self-centered complainer who is out to cheat your stbx.

Actually...that's not how I view this one...and possibly not how a judge would view it either.

Since mom lives with them, its kind of obvious that the "gift" was to help provide housing for mom as well. If they cannot keep the house without mom's gift remaining with her daughter, then mom is going to suffer an economic consequence as a result of this divorce.

Of course this problem would not exist if mom's name had been placed on the house when it was purchased. Which I am pointing out for the sake of others who may read this thread.

 

[nextwife]

Mom is not a party to the divorce! Nor a child of the marriage.

Mom GIFTED the money to them - THEY bought a house for which they each own half. A judge cannot undo his ownership.

Additionally, you don't know that mom lived with them immediately after gifting the money, thus it may not be so obvious that the "gift" was intended to create housing for mom.

Daughter SHOULD have looked out for mom's interest at the time. If daughter wanted mom to get that money back, she should have either put mom on title as an owner when they bought or taken back a mortgage to pay mom back. Daughter can STILL pay mom back if she wishes.

 

[he left me]

I am also looking at it as Mom will still have a "roof over her head" She was an "empty nester" and a widow, so she sold her house and used the proceeds to put a down payment on the house that she would share with us. The reason her name was not put on the house was because she didn't want any more responsibilites. I also would not come across to anyone as a "self centered" trying to "stick it to my stbx" kind of person. I not like that. I'm just trying to protect my mother, kids and myself from losing the house.