Property deeds in divorce.

[Kp96]

I have a property in new jersey where the mortgage is solely mine now after a refi but my brother is still on the original deed. My wife has her own property in new york under only her own name. Both houses have mortgaged that we currently pay. My wife is concerned that because my brother is still on the deed that, in the event of divorce, only half my property is available to her in a settlement. However, my understanding is that this is separate property because neither of us are on the other's property deed.

How relevant is it that my brother is on my property deed? How does that impact things? Also, does it mean that my brother could potentially cause issues with the property? Please advise.

 

[HRZ]

Did you acquire interest in that property before or after you got married?

How is it titled with brother ...tenants in common or joint tenants with rights of survivor?

 

[Kp96]

Acquired in 2005 with brother. He moved out in 2007 but we didn't bother changing anything. I just paid the mortgage myself. In 2013 we did a refi and i was now the only one on the mortgage. we thought the deed changed but I guess it did not. It was tenants in common. I got married last year.

 

[not2cleverRed]

You got married last year and she wants to know what she can get in a divorce?

If that's her attitude, send her packing already. For such a short term marriage she deserves squat. There bulk of the equity in the home is premarital.

 

[Kp96]

You got married last year and she wants to know what she can get in a divorce?

If that's her attitude, send her packing already. For such a short term marriage she deserves squat. There bulk of the equity in the home is premarital.

It's not quite that simple. Basically what happened is that I told her that the house was mine and I thought it was since I am the only one on the mortgage, but I am not because the deed was not changed. Not sure how that happened but it is what it is. When she found out, there was a trust issue. Her main concern actually is that if i get hit by a bus, half my property apparently goes to my brother, whereas if the same happens to her, I get the whole thing. She says that is not fair.

 

[HRZ]

if it's TIC then tell her she is wrong. ANd her attitude of fair is not supported by facts. , you go to county fair for cotton candy.

 

[Kp96]

if it's TIC then tell her she is wrong. ANd her attitude of fair is not supported by facts. , you go to county fair for cotton candy.

sorry my friend but can you elaborate? so, if we were to get divorced, wouldn't both properties essentially be out of scope for the settlement because we owned them before the marriage and neither of our names are on the other's property deed?

 

[not2cleverRed]

sorry my friend but can you elaborate? so, if we were to get divorced, wouldn't both properties essentially be out of scope for the settlement because we owned them before the marriage and neither of our names are on the other's property deed?

Divorce and death are very different things, and are treated differently, legally.

For the purposes of divorce, "marital assets" are those accrued during marriage. The equity accrued on the properties during the marriage are marital assets. (You have a mortgage, so marital assets are being used to pay for it.) There may be more, depending on how property is intermingled.

She is correct that if she dies intestate next week, you get all, whereas if you die next week, she might have to share. However, her attitude rots.

VOE, when your spouse focusses on how they might be shortchanged by you, and reads unfairness on your part into things when you are not trying to be unfair, that can lead to a certain lack of generosity of spirit that makes for a miserable partnership. It does not improve over the years.

 

[Kp96]

I don't disagree that this was a really bad discussion. I left out a key point though. Her parents put a large amount of money into her property and they have issue with me getting all of it if she passes away. To be fair, my parents invested in my property as well, so I understand that concern. I am thinking we probably need to head to an attorney and make out individual wills to protect our parents money.

 

[LdiJ]

Divorce and death are very different things, and are treated differently, legally.

For the purposes of divorce, "marital assets" are those accrued during marriage. The equity accrued on the properties during the marriage are marital assets. (You have a mortgage, so marital assets are being used to pay for it.) There may be more, depending on how property is intermingled.

She is correct that if she dies intestate next week, you get all, whereas if you die next week, she might have to share. However, her attitude rots.

VOE, when your spouse focusses on how they might be shortchanged by you, and reads unfairness on your part into things when you are not trying to be unfair, that can lead to a certain lack of generosity of spirit that makes for a miserable partnership. It does not improve over the years.

While I agree with this advice...I do see a problem for you (not for your wife) based on the fact that your brother is still on the deed to your house in NJ. It does appear that your intent in doing the refi was for the house to become solely yours and apparently that did not happen. That really is something that you need to deal with now rather than later. If something happens to your brother or if your brother gets divorced your house in NJ is going to become an issue in either your brother's estate or your brother's divorce and you don't want that.

However, you are right that your respective premarital property remains premarital with the exception of the equity that accrues during the marriage.

 

[not2cleverRed]

I don't disagree that this was a really bad discussion. I left out a key point though. Her parents put a large amount of money into her property and they have issue with me getting all of it if she passes away. To be fair, my parents invested in my property as well, so I understand that concern. I am thinking we probably need to head to an attorney and make out individual wills to protect our parents money.

That would be the appropriate way to handle such concerns.

Just remember if you at some point have children, to at that point in time rewrite the wills.

 

[HRZ]

That may be a semi correct view , if a parent made a gift to a child, it's a gift , and the duty to repay a gift might be a self imposed moral one but not a legal one.

One can write a will as one likes , but the law allows ones spouse a right to elect a miminim share if you freeze them out or too low and they are unhappy with same .

OP! You didn't answer how your title is structured with brother ...and it may matter.

IN general , your brother has all ownership rights as .you do...and your brother may have several options to exercise , none of which require the permission of you or your spouse. And while your wife may think your contribution to the home is 99%, that may be far from the points that count.

ANd lets not get into the morality of taking the marital pot to " repay " the gift of one particular set of parents to just one child.

And at best her parents are meddling and it may go down hill from that. IF her parents think they are entitled to thier gift back under certain circumstances , well it's rather late to put conditions on a completed gift now ...they have a major screw loose. THere are a number of ways they could have addressed things differently in the beginning...but right now the best polite description is they have a screw loose.

PS I would strongly suggest your brother NOT go off the title any too soon.

 

[Kp96]

Thanks for all the input. The plan we have agreed to is for us to take my brother off the deed and, at the same time, sign a document that waives my right to her home, and her right to mine. This protects both parties. Does that work?

 

[not2cleverRed]

Thanks for all the input. The plan we have agreed to is for us to take my brother off the deed and, at the same time, sign a document that waives my right to her home, and her right to mine. This protects both parties. Does that work?

Whether that document has any weight is another story. You seem to have 2 concerns here: divorce and death. Legally, it's easy enough to have a lawyer write up wills. What your wife and her family seem to want is a post-nuptial agreement. Be aware that if you do this as a DIY project, you might just get what you pay for, so use a lawyer.

Also remember that if you stay married, have children, etc., things get co-mingled, things become a bit muddy. I have more than one relative who has lost what was originally non-marital property as part of a divorce settlement.

Finally, take what HRZ has posted with a grain of salt, as most of it is legally inaccurate.

 

[HRZ]

How's this for technical accuracy...brother has no duty to get off deed and can insist on partition .