Question #139:My husband and I have been married for 10 years. We live in Manhattan, New York City, and have 2 children, ages 5 and 7. I have been the main provider for the family and make about $80,000 a year. My husband makes about $20,000 a year. During our marriage he completed a Ph.D. while I worked full time, and had promised to contribute more after finishing, but 4 years later, he has not got a better paying job. We bought a coop apartment that is worth about $400,000 more now than when we bought it. My family gave us the money for the down payment and I have made all the mortgage payments since, but both our names are on the papers. My family also gave us about $40,000 in stocks that we have had to sell. We have no money in savings. We now both want to get separated or divorced, and my husband wants to sell the apartment and divide up the profit equally. I do not want to move and would not be able to afford a similar place to move with the children, who would certainly stay with me. Renting a similar place would cost about twice as much as I am paying monthly, and would be a waste of all the profits from the house in my opinion. I would be willing to refinance the apartment and give him money to get himself started, but not $200,000 and I think he will not agree to that. Would I be forced to sell my apartment?

Since the property is registered in both names, your husband will have a claim to a share of the property, unless you can prove that the money given to you by her parents was given to you only and not to him. Since the property is held in both names, however, the presumption is that the property belongs to both.
With regard to being forced to sell the property, since the children are small, and assuming you would be the resident parent, it is very unlikely that the court would force you to sell the property before the children reach maturity. However, some resolution should be sought by taking out an additional mortgage or loan from someone, in order to pay your husband all or a portion of his interest in the property with a promissory note and interest on the balance owed, in return for his transferring his share of the property over to you.
Because you supported him while he was working on his Ph.D., you’ll have an interest in his degree and earning capacity which has a monetary value and perhaps may be traded for part of his interest in the property. This and other matters are issues to be explored during the course of the Divorce mediation which you both should consider seriously.
This case seems ripe for mediation and I strongly recommend that you call me at 212-370-1660 to arrange for a meeting with you and your husband to discuss mediating this divorce. It will save you time, money, and much aggravation and be less traumatic for the children.

Leonard M. Weiner, Esq./Divorce Solutions