Will I lose my right to any equity in the marital residence if I move out during a legal separation?

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Will I lose my right to any equity in the marital residence if I move out during a legal separation?

My wife and I purchased our home while we were married but it is in her name due to the fact that she had better credit. My income was listed as household income but my name is not on the deed. Will I give up any rights to the equity that has been built up during our marriage if we mutually agree that I move out move during our legal separation?

Asked on June 12, 2009 under Family Law, New York

Answers:

S.J.H., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

It is never a good idea to leave the marital residence until there is either a separation agreement in place or it is during the course of a divorce proceeding which is agreed to in court during the pendency of the divorce.  You will not necessarily lose equity in the house but you may well be forced to pay bills towards the house in addition to child support and maintenance under certain circumstances. The fact that you left could be used against you by your wife if the divorce turned nasty. Additionally, she could run to court and get exclusive occupancy which would allow her to reside in the house for a period of time and preclude you from returning in the event you wanted to return and continue to reside there. This would give her serious leverage.  Do yourself a favor and contact an attorney in your area about possibly doing a separation agreement. If you and your wife are not ready to go that far, you can perhaps do a post-nuptial agreement which concerns only the issue of you vacating the premises and you reserving all rights with regards to that. This at least would prevent your wife from saying that you abandoned the house as it will be mutual arrangement

J.V., Member, New Jersey Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

my advise is that you draft the separation stating specifically that you will move out but both parties agree that your moving out during the separation period will not affect your equity in the home. You will continue to be entitled to your portion of the equity etc.

You may also want to consider hiring a local attorney to help draft the separation agreement to ensure you get fairly represented and nothing is missed that in the end will harm you in the divorce


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