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Dear Quentin,
I live in New Jersey. My husband and I have been married for 15 years. We have no children from our marriage. However, we both have adult children.
I sold my home to move into his fixer-upper. My name is not on the deed, however; we have paid homeowners’ loans and insurances jointly. Everything is paid in full.
I remodeled the home over the past 15 years, and I am currently paying for another remodeling project of the kitchen. He is doing the work with all new appliances.
“‘‘I remodeled the home over the past 15 years, and I am currently paying for another remodeling project of the kitchen.’”
My fear is that his daughter may have rights to ownership of the marital home if he passes before me and that he could change his will. She has contributed nothing.
He had a will when we first married, and to my knowledge, he hasn’t changed it. We agreed that the will should clearly state that we each assume everything.
However, I asked him to add my name to the deed. He refused. This is a second marriage for both of us. He said that he never wants to be put out of his home.
Well, neither do I! His daughter is not married, and not as well off financially as my daughter. Should I be concerned?
Second Wife
Dear Second,
I have good news — and some tough love. Let’s start with the latter. It will, I hope, make you appreciate the silver lining in your finances all the more.
Your first mistake was to sell your home and give up the appreciation in that property over the last 15 years, especially as you did that based on a promise. If you were to pool your assets and give up your home, it would have made more sense to put both your names on the deed of your marital home.
Your husband can make a will leaving you his home, but he can also change that at a moment’s notice, or say he’ll make such a will and, instead, do nothing. No one — husband or wife — should give up their hard-won financial independence when entering a marriage, and agree to an unequal balance of power.
New Jersey is an equitable-distribution state. In the event of a divorce, assets are split equitably by the divorce court, in a manner that is deemed fair by the judge but not necessarily 50/50. Instead, it will take into account such factors as the duration of the marriage, and the income of the respective parties.
“Your first mistake was to sell your home and give up the appreciation in that property, especially as you did that based on a promise.”
In community property states, by contrast, everything acquired before the marriage, therefore, is treated under the law as separate property. Similarly, assets acquired during the marriage are regarded as marital property. Your husband’s fixer-upper was separate property.
“Some main categories of separate property include property acquired prior to marriage, property acquired during the marriage as gifts from third parties or by inheritance, or property acquired after the filing of the divorce complaint from post-complaint efforts,” according to the law firm Riker Danzig.
“Courts have held that separate property must be kept separately, and not allowed to be co-mingled to prevent it from being identified as marital property. In addition, if separate property is improved during the marriage, it may also become marital property.”
However, the fact that you used your money and/or a joint account to pay the mortgage and remodel this home likely commingles that property. So what can you do now? Keep the receipts and bank transactions, and talk to a lawyer privately about your finances and marital assets.
“Courts will also consider whether any incremental value to the property was a result of a market fluctuation or a result of the contributions and efforts by one spouse towards the asset’s growth to determine if incremental value is subject to distribution,” Riker Danzig adds.
This is a good lesson for anyone entering into a marriage. Ideally, you should feel safe and secure in your marriage till death — or divorce — do you part.
(A previous version of this story misidentified New Jersey’s status. It is an equitable-distribution state.)
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