marital property

[jenjen]

Greatings socrateaser

state of florida

my spouse and I
puchased a home with mortgage 10yrs ago balance still oweing, spouse #1 left residents 3 years ago and established new residence. now seeking half equity in home, value of home skyrocketed after spouse #1's departure.



question:

1. would departing spouse be intitled to half the equity at it's current value or half the amount at it's value when they left?


2. if homes curent value is for example 400.000 with a remaining mortgage of 50,000 are both responsible for half of the remaining mortgage or is it the spouse who's buying the other out suppose to absorb the remaining mortgage?




Thanks for your opinion in advance

[socrateaser]

>question:
>
>1. would departing spouse be intitled to half the equity at
>it's current value or half the amount at it's value when they
>left?

issue is how much each spouse put into the home, either in case or as part of the marital partnership (maintenance, repair, improvements, etc).

FL is a separate property state, so there's no presumption of 50/50 entitlement. issues are who is on title, what was the spouses' intent when the property was purchased, where did the money for the down payment and for the mortgage payments come from?

if both on title, then how is title taken? if joint tenants or tenants in the entirety, then both parties own an undivided one half interest in the home, each spouse entitled to their respective contributions to down payment and principal payments reimbursed, and then since partnership, probably a 50/50 split of the remaining property.

You could be liable to the other spouse for the percentage of fair market rental value of the property, apportioned by the % that the other spouse owned, if you forced him out and told him you wanted the home for yourself (ouster + notice of repudiation of common title).

This sort of thing will almost certainly be controlled by some statute or case law in FL. I'm giving you common law generalities here. Courts have concocted some very bizarre rules in this area over the years, and it varies greatly by jurisdiction, especially where jurisdiction is east of the Mississippi (older states have older, more bizarre laws).

So, short answer is yes, other spouse has an interest, but depends on facts still unknown to me (holding of title, who paid for what, who lived there, why the other spouse moved out, etc.).

You'll need a FL lawyer to sort it out, unless you can both just come to an agreement.

>2. if homes curent value is for example 400.000 with a
>remaining mortgage of 50,000 are both responsible for half of
>the remaining mortgage or is it the spouse who's buying the
>other out suppose to absorb the remaining mortgage?

the court can order one spouse responsible at divorce, but the lender doesn't have to agree. Example, other spouse buys you out, and keeps underlying mortage. 10 years later, spouse goes bankrupt. Lender can come after you for payment, unless state has antideficiency law which restricts recovery to value available in home.

Best move is to either sell home, or refinance underlying mortgage by court order so there is no possibility of being bitten on the ass later. Insolvency by former spouse that causes a mortgage to belly up will very seriously negatively affect your credit report, even if no money injury occurs.