Question for Attorney Carbone: I Want the House But He’s Not Leaving! Should I Go?

Question: After 15 years of a rocky marriage, we decided to get a divorce. We had worked out the settlement agreement and are waiting for our day in court. According to the settlement, I’m the one who will keep the house. And although my soon-to-be ex-husband said he will leave, he has yet to move out. His rationale is that he’s the breadwinner, his money paid for the house, and he won’t leave until he can find a suitable of his own. I can’t stand it anymore! I’m thinking of moving into an apartment until the divorce is final. Is that the right thing to do? I’m losing my mind, what should I do?

Answer: It’s not only sad when a relationship ends, but it’s also stressful. One of the hardest things couples have to do is the division of property. It can be extremely complex and neither party will be completely satisfied with the division. According to New Jersey law, there must be an equitable distribution of property and money in the divorce; however, this does not always happen.

Before we answer your question, let’s take a look at the factors that are considered when the division of property is determined in New Jersey. They include:

• The length of the marriage
• The age and health of the spouses
• The property, including income, that each spouse brought into the marriage
• The standard of living and economic circumstances of each spouse
• The present value of the property
• Tax consequences
• The needs of the children
• The settlement agreement

Since you and your spouse have already created a settlement agreement stating that you will receive the house, then you don’t have to worry about losing ownership. You can’t just kick your ex out. Once the divorce is finalized and your husband has not given right of possession, only then does your ex will lose the right to occupy the house. However, it’s just not as simple as kicking someone out of the house, especially if both your names are on the deed. If your ex is still in the house after the divorce is final, you may need to file a post-judgment motion to grant you sole possession as well as order him to vacate the home by a specific date.

But you shouldn’t leave the home either. This may look bad when you do have your day in court. Just tough it out until then.

If you are going through a divorce and having issues with the division of property in New Jersey, we can help. Contact the Law Offices of Anthony Carbone today for a free consultation.