Divorce Solutions

Question #139

My husband and I have been married for ten years. We live in Manhattan, New York City, and have two children, ages 5 and 7. I have been the primary 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 four 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. 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 home 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.

Concerning being forced to sell the property, since the children are small, and assuming you would be the resident parent, it is doubtful that the court would force you to sell the property before the children reach maturity. However, some resolution should be sought. I suggest taking out an additional mortgage or loan from someone to pay your husband all or a portion of his interest in the property, perhaps, with a promissory note and interest on the balance owed. In return, he would transfer 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 suggestion and other matters are issues to be explored during 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