Settlement

[martto922]

What is the name of your state (only U.S. law)? NJ

I am in final stage of my divorce. Brief history – I filed 2+ years ago, have been paying all bills at former marital home in addition to $300 wk to soon to be ex. We have 2 children - ages 20 & 16, both reside at former marital residence. One in college locally full-time, other in high school.

I am a self-employed carpenter and key man in my company. I work from my truck and cell phone. In past, we had lived month to month, no second home, no fancy cars or vacations, no big savings accounts. Business evaluation completed and was valued between $120,000-$140,000. It has been suggested that her part of business and equity in former marital home are a wash. I am thinking of giving her house in return for my business and need to know if my name must stay on the mortgage. If so, would I be responsible for repairs as well? How can I protect my credit if she falls behind on mortgage payments? How long must my name stay on? Until youngest is out of high school? Or college?

Also, is car insurance for child that drives part of child support?

 

[tuffbrk]

A few thoughts -

In Middlesex County, the court won't consider your 20 yo in the divorce process. Doesn't matter that he's in college FT or resides at home. This may not be the case in other counties.

Child Support is to reimburse the residential custodial parent for payment of the child's portion of the rent, utilities, food. Car insurance is not included. Whether you choose to pay for, or contribute to, car insurance is entirely up to you. I would think that your college aged child has at least a part time job that they can pay at least a portion of the cost on their own.

If your soon to be ex (STBX) decides to accept the property in lieu of the business, they should refinance in their own name. Immediately. The children do not impact the terms of a property settlement. A long time ago, far, far away, people used to wait to sell the home until the youngest graduated HS or some such nonsense. That is not done much anymore.

If STBX does not or, at some point, cannot pay the mortgage payment, your credit will go down the drain just as theirs will. The mortgagor is not a party to your divorce so telling them that it's now the sole property of STBX does not change the responsibility for payment that you agreed to at closing. If payments aren't made, you could then file contempt in family court. However, if STBX doesn't have the money to pay - it will still be your credit that goes down the drain. There isn't much the court can do to help you at that point. So again - the STBX must refinance immediately (if they accept your offer). Do NOT sign a quit claim until your name has been removed from the mortgage.

On another note - did you retain a party to value the business? I can't imagine it would be worth much if you were not involved.

 

[martto922]

How can I find out about other counties? Is it county they reside in or where I reside (and papers filed from)? Morris/Monmouth county

Everything that I have been told so far (lawyer, early settlement, forsenic accountant) has said the children DO make a difference in settlement, that they ARE considered and NJ law states STBX can stay in house with children, my name stays on mortgage until youngest is out of high school or college (not clear on which it is) and then house is sold...is that not NJ law? If my divorce goes before a judge (seems to be heading that way), can he order me staying on mortgage?

I did have a forensic accountant value business. He stated that even though I am key man and business not worth really anything without me that it had value to me.

 

[tuffbrk]

How can I find out about other counties? Is it county they reside in or where I reside (and papers filed from)? Morris/Monmouth county

Everything that I have been told so far (lawyer, early settlement, forsenic accountant) has said the children DO make a difference in settlement, that they ARE considered and NJ law states STBX can stay in house with children, my name stays on mortgage until youngest is out of high school or college (not clear on which it is) and then house is sold...is that not NJ law? If my divorce goes before a judge (seems to be heading that way), can he order me staying on mortgage?

I did have a forensic accountant value business. He stated that even though I am key man and business not worth really anything without me that it had value to me.

NJ law does NOT mandate that STBX stays in the house with children, with your name on the mortgage until youngest is out of high school!! And if the business does not have any value without you, why would your attorney suggest that you give up your full interest in the marital home in lieu of the business?!! What if you get hurt and cannot work? Then you will have no assets whatsoever!

WHO is your lawyer?!! I am URGING you to call for a free consult with another attorney or two. Your attorney may not be as experienced with sole proprietors as they should be to represent you properly.

Do NOT agree to anything in early settlement that you are not very, very comfortable with. If you agree to anything during ESP, those items are considered to have been negotiated and are not subject to review - the judge will just sign off on them. This will make it very difficult to modify anything (such as alimony terms) at any point in the future.

There is simply too much at stake to not obtain a consult with another attorney.

 

[tuffbrk]

Also - children are not parties to equitable distribution. Children are only considered in a divorce as it relates to Child Custody and Support. I can tell you that a 20 yo FT college student in Middlesex County is not included or represented anywhere on custody decisions and/or CS. Perhaps it is different in your county.

Where you file is based on where you were in residence when the cause for action arose. Not knowing the details of the grounds for divorce, if any, makes this difficult to answer. Please copy and paste the URL below and then click on the section that addresses where to file (listed near the bottom of the index) to ensure you have filed in the correct county - although one would hope that your attorney filed correctly!

Skim through the information in this guide. You will find it helpful. and read lots of the threads here!! I only wish that I had known about this site prior to my divorce being final!! Good luck to you..

http://www.lsnjlaw.org/english/family/divorce/divorcenj{URL}

 

[martto922]

Children reside in Morris County, I live in Monmouth and filed papers in Monmouth County.

Can I please ask if you are a lawyer? How are you familiar with legal system? Please take no offense if me asking this, it is just what I have been told and what I am hearing here seem to be quite the opposite! I am extremely concerned as I have a hearing date Tuesday before the judge to settle the divorce and it seems I am not informed with correct information.

I only agreed to paying $300 weekly from ESP.

I will certainly look at website you provided and appreciate the info you have given.

 

[mistoffolees]

NJ law does NOT mandate that STBX stays in the house with children, with your name on the mortgage until youngest is out of high school!! And if the business does not have any value without you, why would your attorney suggest that you give up your full interest in the marital home in lieu of the business?!! What if you get hurt and cannot work? Then you will have no assets whatsoever!

WHO is your lawyer?!! I am URGING you to call for a free consult with another attorney or two. Your attorney may not be as experienced with sole proprietors as they should be to represent you properly.

Do NOT agree to anything in early settlement that you are not very, very comfortable with. If you agree to anything during ESP, those items are considered to have been negotiated and are not subject to review - the judge will just sign off on them. This will make it very difficult to modify anything (such as alimony terms) at any point in the future.

There is simply too much at stake to not obtain a consult with another attorney.

I agree. As a self-employed carpenter, it's unlikely that the business has much, if any value.

Heck, if it were me, I'd tell her if she thinks the business is worth $140 K that she can have the entire business in exchange for the equity in the home. Then, after receiving the home, he could quit his job and the business would be worth exactly zero.

(Note: this is a useful negotiating tactic. if stbx insists on an unreasonable position, offer to reverse it. For example, when dividing assets, my ex wanted to keep the house but insisted that the value was about $50 K less than I thought it was worth. In exasperation, I said "if you think that's what the house is worth, I'll take it". Suddenly, the value jumped by $30 K. So I ended up keeping the house - and still got it for less than it was worth.)

Definitely talk with another attorney.

 

[martto922]

Children reside in Morris County, I live in Monmouth and filed papers in Monmouth County.

Can I please ask if you are a lawyer? How are you familiar with legal system? Please take no offense if me asking this, it is just what I have been told and what I am hearing here seem to be quite the opposite! I am extremely concerned as I have a hearing date Tuesday before the judge to settle the divorce and it seems I am not informed with correct information.

I only agreed to paying $300 weekly from ESP.

I will certainly look at website you provided and appreciate the info you have given.

 

[tuffbrk]

No, I am not a lawyer. I did go through a 3 yr long, contentious divorce with 2 different high priced attornies. Unfortunately, the first attorney that I had did not advise me correctly - and no, I have no recourse against them- it is buyer beware. The second attorney started off strong, but we were up against a number of issues that were a direct result of the first attorney not advising correctly or taking the appropriate steps. It was very difficult to overcome the obstacles and, unfortunately, towards the end of the process, my 2nd attorney just wanted my case "gone" from his list (I later learned that he was leaving the firm and starting his own practicwe but had to finalize some cases, one of which was mine) and did not put forth much effort in properly representing me.

If you read the legal guidelines in the URL that I provided, you will see that the STBX remaining in the home for any period of time is the last of 3 choices that you have available. It is last for very good reasons. You will also note that legally, you cannot be forced to remain named as legally (financially) responsible for a mortgage when you do not have ownership interest in the property. (My background is mortgage). If your STBX cannot afford to refinance, does not have the credit to refinance, put it on the market. It may be a year before it sells, but get it on the market. Also - if the business only has value with you at the helm or you working the business, then the business is not worth half of your interest in the home - unless there is no equity or very little equity in the home.

I really do urge you to get a consultation with another party. PUSH BACK on your attorney. Do not presume that they are acting in your best interests, have researched points with which they are unfamiliar. the less you push back, the less "real" time they have to spend on your case - but they get the same hourly rate regardless - which translates into higher profit for them.

Without knowing actual details - appraised value, outstanding loan amount, debts, other income items, etc. it is difficult to provide insightful guidance on an internet forum. What I can tell you, though, based on the information provided is that your attorney is not working hard for you at all. At. all.

 

[martto922]

I have been told that even though it is not the law, a judge almost 100% of the time will rule in favor of SBTX staying in home with children until they are out of school.

I have the same feeling about my lawyer, he is not working hard for me, that he just wants my case settled and off his list. I am on the eve of trial now.

At least now I have a little more information to go to court with. I like the idea of reversing offer!! STBX has been unreasonable the entire process. Even turning my children against me which is despicable.

I most certainly will look at the website you provided.

Thank-you for your help.

 

[mistoffolees]

I have been told that even though it is not the law, a judge almost 100% of the time will rule in favor of SBTX staying in home with children until they are out of school.

Absolutely false.

Please do some real research rather than relying on rumors that you hear in the bar or pool room.

 

[martto922]

I do not drink or play pool.
The information I have received is from my lawyer & forensic accountant.
I will most definitely research this...unfortunately I do not have much time, my hearing is on Tuesday.

 

[tuffbrk]

Absolutely false.

Please do some real research rather than relying on rumors that you hear in the bar or pool room.

Misto - I'm so disappointed in this response. I had hoped you would weigh in - especially on the idea of OP trading his interest in the home for her interest in his business. You usually provide very insightful suggestions related to Finance.

OP - I will ditto Misto on the "Absolutely false" response related to judges almost always ruling for SBTX remaining in the home with the children. That is so...1970's-80's for lack of a better description! Specific to your situation -one of your "children" is an adult and the other will be in 2 years. The law will not be "babying" them.

Keep in mind - the home is, generally speaking, the most valuable asset most people have. Most times, the home needs to be sold in order for both parties to be able to financially afford living separately. Do NOT get wrapped up in retaining the home in your name for a few years. Believe me when I tell you that you will regret it. If you search these forums, you will see numerous threads in all states where the ex isn't paying the mortgage and the OP didn't have them refinance. It comes up again and again. Do NOT do it!

You also need a place to live that is large enough for your sons to either move in (as may be the case with your 20 yo) or for visitation (with your 16 yo). Right now, Mom has them upset with you. Attend school events, call, text, call and text some more. Don't just give up on your relationship with them. You will also need emergency funds in the event your market down turns, you fall off of a ladder, break a hand, leg, etc. and are incapacitated for any length of time. It is unrealistic to think you can accomplish that without any funds from a sale of the home.

Discuss with your current attorney that you are not at all satisfied with the current state of negotiations/mediation. Perhaps he and STBX attorney can agree to re-schedule which will give you some time to get a consult.

 

[mistoffolees]

Misto - I'm so disappointed in this response. I had hoped you would weigh in - especially on the idea of OP trading his interest in the home for her interest in his business. You usually provide very insightful suggestions related to Finance.

See post #7.

 

[tuffbrk]

Now that's the Misto I have come to appreciate and enjoy reading!! I kept checking to see if you had written and somehow missed it! (Obviously!!)

My apologies to you.