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Ely
Ely, Counselor at Law
Category: Legal
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Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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My husband filed for divorce. He was gifted a home by his

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My husband filed for divorce. He was gifted a home by his parents. My name is XXXXX XXXXX the home. He took out a mtg against the home. My name is XXXXX XXXXX the note. Now his lawyer says I am 1/2 responsible for the note, but not entitled to any of the equity in the home. Is this true?
Submitted: 10 months ago.
Category: Legal
Expert:  Ely replied 10 months ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

No, this is arguably not true.

In PA as well as other states, at divorce, property is separated into SEPARATE and COMMUNAL properties.

SEPARATE property is inheritance, gifts, money had before the divorce, and anything agreed to be considered separate in writing and signed by both parties. Separate property is not divided, and goes to its owner.

COMMUNITY property is everything else. Community property is divided between the parties. Pennsylvania is referred to as an "equitable distribution" state, meaning the division is fair, but not necessarily 50/50.

Now, he received that home as a gift. Nor is your name on it. Therefore, it is separate property, arguably. He does keep the home. However, because this is not community property (thus possibly then you being assigned some interest and/or debt from it) AND your name is XXXXX XXXXX the note, there is really no way that one could be held liable for this property - or should be.

Just because they say so does not mean it is true. Remember - his attorney has HIS best interest at heart, not yours. It is not unusual for attorneys to bluff/threaten to get someone to sign off on something without fully realizing the reality of the matter.

Someone in your situation may wish to decline to agree to be held liable, and void signing anything to that effect. If the parties cannot agree to a settlement, then the Court will decide based on the doctrine stated above, and it is unlikely that one would be held liable for mortgage in such a situation (although of course, if left to the Court, one may not get everything that they want).

An agreed settlement is incorporated into a decree and is called an uncontested divorce.

If the parties cannot agree, it is called a contested divorce, and the Judge decides.

It is also common for parties to agree to 95% of the split, but then ask the Court to make a decision in regards XXXXX XXXXX 5% that cannot be agreed upon.

I hope this helps and clarifies. Good luck.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 87044
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and 11 other Legal Specialists are ready to help you
Customer: replied 10 months ago.

I am looking at a possible division of a 401K fund which would entitle me to about $40,000. His lawyer is saying that 1/2 of the $143,000 debt against the house should be deducted from that amount, putting me in the negative... From what I read above, that is in accurate. Can you give me any feedback on that? What I am thinking is that the house is separate and his, as would be the debt on the house and neither the debt or the house should play any part in the settlement of the assets.

Expert:  Ely replied 10 months ago.
Thank you for your follow up, D.

I am looking at a possible division of a 401K fund which would entitle me to about $40,000. His lawyer is saying that 1/2 of the $143,000 debt against the house should be deducted from that amount, putting me in the negative... From what I read above, that is in accurate. Can you give me any feedback on that?

I must respectfully disagree.

A 401k is community property. I am going to assume for the purposes of this question that you do not have a pension plan, or at least one that has significant money in it (correct me if otherwise).

In a pension plan, any money accrued before marriage is separate property. Any money accrued after the marriage is community property.

So say Jack had $10 in his 401k. Of that, $4 was earned before marriage, and $6 was earned after. He gets the $4. The $6 is split as equally as possible, $3 to his ex, and $3 to him (so in the end he actually gets $4+$3=$7; and she gets $3).

The home is his, and so is the mortgage. If he wishes to use the 401k money against the home, he can. HIS 401k money. The money you stand to get cannot be applied to that home. In fact, someone in your situation may wish to request temporary orders from the Court asking the Judge to halt him taking out/spending any 401k or other money aside from necessary expenses until the assets are divided in the divorce.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 10 months ago.

Thank you so very much for your advice and information. It has greatly relieved my mind. I will rate you as excellent and call this very well spent money!

Expert:  Ely replied 10 months ago.
D,

You are very welcome. Good luck in this and all your endeavors.

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