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Experience:  20 years extensive experience in real estate law, foreclosure, finance, and landlord tenant law.
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Hi.....I am married and we own a log cabin. I have wanted to

Resolved Question:

Hi.....I am married and we own a log cabin. I have wanted to sell it for a long time and my husband says not yet. I need to get the debt removed from my name. I own a rental business and if he dies I will loose all my rental property as well as I can not make all the mortgage payments with my income. Is it possible for him to buy me out even if we are still married as if we were divorced? and if he refuses can I put it on the market and force him to buy me out or sell it out from under him? If so, if I put it on the market and he just bullies me and takes it off, how do I address this? What can I do to keep it on the market? What are my options in this situation? Is divorce the only answer? His son is the beneficiary of his life insurance policy and I will be left out in the cold for the rest of my life if he dies in our current financial situation. Mortgage debt does not go away in bankruptcy and my name is XXXXX XXXXX rental property, not his. Both of our names are XXXXX XXXXX log cabin and the deed is a survivorship deed. My fear is if I try to sell it out from under him he will just take it off the market and leave me hanging. He is very controlling and what he says goes whether it is in my best interest or not. I am 51 and can not get another mortgage loan and if I face bankruptcy I will loose all my houses and be in the street the rest of my life as I will still owe almost $2,000.00 in mortgage payments and will not be able to afford rent on top of that. What can I do?
Submitted: 12 months ago.
Category: Real Estate Law
Expert:  Law Pro replied 12 months ago.
Hi! My name is XXXXX XXXXX I'll be the attorney assisting you.


Is it possible for him to buy me out even if we are still married as if we were divorced?


Yes, certainly.


And if he refuses can I put it on the market and force him to buy me out or sell it out from under him?


That's possible although I have never heard of spouses bringing a partition action against the spouse. But I'm sure it's been done before - the right to partition is absolute unless there is a written contract stating to the contrary.

A partition action is a request to the court to divide real property equitably between the interested parties. Co-owners automatically have the right to request a partition action unless an agreement, usually written, waiving their right to seek partition for a "reasonable" term exists. Agreements waiving the right to partition forever are not usually honored by the court as they are seen as being of an "unreasonable" period.

In the case of undeveloped land, the court can literally divide the property by equitable portion to each of the co-owners or it can order a sale of the property to the highest bidder.


When partition actions involves developed property, it is more likely that the court will order a sale of the property with proceeds to be divided among the co-owners. However, if the property is a multi-unit building that can be turned into condominiums, residential or otherwise, the court can order certain units to be assigned to the individual property owners instead of ordering the property to be sold.


Co-owners of property who are in disagreement about either how the property is being used, such as when a property is being used as a residence and one or more co-owners wish to use the property commercially, or whether to sell the property are the most common litigates in a partition agreement. Sometimes co-owners who have inherited an interest in the property seek to sell, whereas the prior owners desire to keep the property as is. If an agreement for the other co-owners to purchase the inheritor's interest in the property cannot be reached, the case often ends up in court.

If a partition action is filed - then the court tries to see of resolution or a buy-out can be made between the owners. If resolution can't be made the court orders the property place with a real estate company for sale until sold then the proceeds distributed as per the owner's interest in the property.


The statutes for OH are:

Persons can be compelled to partition their land:

§ 5307.01

Tenants in common, survivorship tenants, and coparceners, of any estate in lands, tenements, or hereditaments within the state, may be compelled to make or suffer partition thereof as provided in sections 5307.01 to 5307.25 of the Revised Code.

The content of the petition is governed by statute:

§ 5307.03.

A person entitled to partition of an estate may file his petition therefor in the court of common pleas, setting forth the nature of his title, a pertinent description of the lands, tenements, or hereditaments of which partition is demanded, and naming each tenant in common, coparcener, or other person interested therein, as defendant.

The Court orders partition:

§ 5307.04.

If the court of common pleas finds that the plaintiff in an action for partition has a legal right to any part of the estate, it shall order partition of the estate in favor of the plaintiff or all interested parties, appoint one suitable disinterested person to be the commissioner to make the partition, and issue a writ of partition. The court on its own motion may, and upon motion of a party or any other interested person shall, appoint one or two additional suitable persons to be commissioners. If the estate to be partitioned extends beyond the county in which the action is commenced, the court may appoint a separate commissioner or commissioners, not to exceed three, to make the partition of that portion of the estate located in the other county.

Survivorship tenants are treated as tenants in common:

§ 5307.041.

If partition is granted among survivorship tenants, the court shall determine the share to which each is entitled as if the tenants were tenants in common.

Appointed commissioners equitably divide the land:

§ 5307.06.

In making a partition, the commissioner or commissioners shall view and examine the estate and, on their oaths and having due regard to the improvements, situation, and quality of the different parts, set it apart in lots that will be most advantageous and equitable.

If the commissioner or commissioners set the estate apart in lots, it shall be surveyed and platted in compliance with sections 711.001 to 711.15 of the Revised Code and with rules adopted pursuant to those sections.

The Parties can agree to Partition the land amicably:

§ 5307.08.

Before a writ of partition is issued under section 5307.04 of the Revised Code, the person of whom partition is demanded may appear in the court of common pleas in person or by attorney and consent to a partition of the estate agreeable to the prayer and facts set forth in the petition, which amicable partition, when made and recorded, shall be valid and binding between the parties to the partition. In cases in which a requested partition is consented to under this section and in all cases in which the lands are divided among the parties by the commissioner or commissioners, the court shall order the sheriff to execute and deliver a deed to each person entitled to a deed for the portion set off and assigned to the person. Land divided pursuant to this section shall be surveyed and platted in compliance with sections 711.001 to 711.15 of the Revised Code and with rules adopted pursuant to those sections.

If the property cannot be divided, it is appraised and a party may elect to take it at the appraised value:

§ 5307.09.

When the commissioner or commissioners are of opinion that the estate cannot be divided according to the demand of the writ of partition without manifest injury to its value, the commissioner or commissioners shall return that fact to the court of common pleas with a just valuation of the estate. If the court approves the return and if one or more of the parties elects to take the estate at the appraised value, it shall be adjudged to them, upon their paying to the other parties their proportion of its appraised value, according to their respective rights, or securing it as provided in section 5307.10 of the Revised Code.

If the parties do not elect to take the property it can be sold at public auction:

§ 5307.11.

If no party elects to take the estate, at the insistence of a party, the court of common pleas may order a sale of the estate at public auction by one of the following:

(A) The sheriff who executed the writ of partition or the sheriff’s successor in office;

(B) An auctioneer who is licensed under Chapter 4707. of the Revised Code and who is qualified under section 4707.021 of the Revised Code to conduct an auction of real property.

The sale is similar to a foreclosure sale, and cannot be sold for less than two thirds of the appraised value:

§ 5307.12.

(A) A sale of an estate under section 5307.11 of the Revised Code shall be made as follows:

(1) If the sale is made by a sheriff, the sale shall be made at the door of the courthouse, unless for good cause the court of common pleas directs it to be made on the premises. The sale shall be conducted as upon execution, except that it is unnecessary to appraise the estate.

(2) If the sale is made by a licensed auctioneer, the sale shall be made pursuant to Chapter 4707 of the Revised Code.

(B) No property shall be sold for less than two thirds of the value returned by the commissioner or commissioners.

One party may obtain his or her share of rents and profits of the property received by the other party.

§ 5307.21.

One tenant in common, or coparcener, may recover from another tenant in common, or coparcener, his share of rents and profits received by such tenant in common or coparcener from the estate, according to the justice and equity of the case. One coparcener may maintain an action of waste against another coparcener. No coparcener shall have any privileges over another coparcener, in any election, division, partition, or matter to be made or done, concerning lands which have descended.

- See more at: http://www.josephandjoseph.com/partition-action/#sthash.yMoNv6F6.dpuf
Persons can be compelled to partition their land:

§ 5307.01

Tenants in common, survivorship tenants, and coparceners, of any estate in lands, tenements, or hereditaments within the state, may be compelled to make or suffer partition thereof as provided in sections 5307.01 to 5307.25 of the Revised Code.

The content of the petition is governed by statute:

§ 5307.03.

A person entitled to partition of an estate may file his petition therefor in the court of common pleas, setting forth the nature of his title, a pertinent description of the lands, tenements, or hereditaments of which partition is demanded, and naming each tenant in common, coparcener, or other person interested therein, as defendant.

The Court orders partition:

§ 5307.04.

If the court of common pleas finds that the plaintiff in an action for partition has a legal right to any part of the estate, it shall order partition of the estate in favor of the plaintiff or all interested parties, appoint one suitable disinterested person to be the commissioner to make the partition, and issue a writ of partition. The court on its own motion may, and upon motion of a party or any other interested person shall, appoint one or two additional suitable persons to be commissioners. If the estate to be partitioned extends beyond the county in which the action is commenced, the court may appoint a separate commissioner or commissioners, not to exceed three, to make the partition of that portion of the estate located in the other county.

Survivorship tenants are treated as tenants in common:

§ 5307.041.

If partition is granted among survivorship tenants, the court shall determine the share to which each is entitled as if the tenants were tenants in common.

Appointed commissioners equitably divide the land:

§ 5307.06.

In making a partition, the commissioner or commissioners shall view and examine the estate and, on their oaths and having due regard to the improvements, situation, and quality of the different parts, set it apart in lots that will be most advantageous and equitable.

If the commissioner or commissioners set the estate apart in lots, it shall be surveyed and platted in compliance with sections 711.001 to 711.15 of the Revised Code and with rules adopted pursuant to those sections.

The Parties can agree to Partition the land amicably:

§ 5307.08.

Before a writ of partition is issued under section 5307.04 of the Revised Code, the person of whom partition is demanded may appear in the court of common pleas in person or by attorney and consent to a partition of the estate agreeable to the prayer and facts set forth in the petition, which amicable partition, when made and recorded, shall be valid and binding between the parties to the partition. In cases in which a requested partition is consented to under this section and in all cases in which the lands are divided among the parties by the commissioner or commissioners, the court shall order the sheriff to execute and deliver a deed to each person entitled to a deed for the portion set off and assigned to the person. Land divided pursuant to this section shall be surveyed and platted in compliance with sections 711.001 to 711.15 of the Revised Code and with rules adopted pursuant to those sections.

If the property cannot be divided, it is appraised and a party may elect to take it at the appraised value:

§ 5307.09.

When the commissioner or commissioners are of opinion that the estate cannot be divided according to the demand of the writ of partition without manifest injury to its value, the commissioner or commissioners shall return that fact to the court of common pleas with a just valuation of the estate. If the court approves the return and if one or more of the parties elects to take the estate at the appraised value, it shall be adjudged to them, upon their paying to the other parties their proportion of its appraised value, according to their respective rights, or securing it as provided in section 5307.10 of the Revised Code.

If the parties do not elect to take the property it can be sold at public auction:

§ 5307.11.

If no party elects to take the estate, at the insistence of a party, the court of common pleas may order a sale of the estate at public auction by one of the following:

(A) The sheriff who executed the writ of partition or the sheriff’s successor in office;

(B) An auctioneer who is licensed under Chapter 4707. of the Revised Code and who is qualified under section 4707.021 of the Revised Code to conduct an auction of real property.

The sale is similar to a foreclosure sale, and cannot be sold for less than two thirds of the appraised value:

§ 5307.12.

(A) A sale of an estate under section 5307.11 of the Revised Code shall be made as follows:

(1) If the sale is made by a sheriff, the sale shall be made at the door of the courthouse, unless for good cause the court of common pleas directs it to be made on the premises. The sale shall be conducted as upon execution, except that it is unnecessary to appraise the estate.

(2) If the sale is made by a licensed auctioneer, the sale shall be made pursuant to Chapter 4707 of the Revised Code.

(B) No property shall be sold for less than two thirds of the value returned by the commissioner or commissioners.

One party may obtain his or her share of rents and profits of the property received by the other party.

§ 5307.21.

One tenant in common, or coparcener, may recover from another tenant in common, or coparcener, his share of rents and profits received by such tenant in common or coparcener from the estate, according to the justice and equity of the case. One coparcener may maintain an action of waste against another coparcener. No coparcener shall have any privileges over another coparcener, in any election, division, partition, or matter to be made or done, concerning lands which have descended.




Kindly do not forget to positively rate my answers so I can be compensated for assisting you this evening.

Thank you!


If you have any questions, about this or anything else, please ask for me, Law Pro, directly in the question and I will try to assist you as best I can.

For example, you would state, "This question is for Law Pro . . . (then on with your question).


Customer: replied 12 months ago.


I am not sure what happened in the return answer you gave me but when it was transmitted it was sent overtop of the original page I sent to you when I asked the question. All I can see is two type written pages on top of each other. I can read my question in the background behind your answer but I can not read your answer as most of the letters are on top of my question. I have never seen this done before in transmittals. I am not sure what happened. If you resend your answer to me will it be on top of the original question again? Can we do anything about this? Sorry for he inconvenience.

Expert:  Law Pro replied 12 months ago.
Sorry for any problems.

I will repost my answer- hopefully it won't happen again:



Hi! My name is XXXXX XXXXX I'll be the attorney assisting you.


Is it possible for him to buy me out even if we are still married as if we were divorced?


Yes, certainly.


And if he refuses can I put it on the market and force him to buy me out or sell it out from under him?


That's possible although I have never heard of spouses bringing a partition action against the spouse. But I'm sure it's been done before - the right to partition is absolute unless there is a written contract stating to the contrary.

A partition action is a request to the court to divide real property equitably between the interested parties. Co-owners automatically have the right to request a partition action unless an agreement, usually written, waiving their right to seek partition for a "reasonable" term exists. Agreements waiving the right to partition forever are not usually honored by the court as they are seen as being of an "unreasonable" period.

In the case of undeveloped land, the court can literally divide the property by equitable portion to each of the co-owners or it can order a sale of the property to the highest bidder.


When partition actions involves developed property, it is more likely that the court will order a sale of the property with proceeds to be divided among the co-owners. However, if the property is a multi-unit building that can be turned into condominiums, residential or otherwise, the court can order certain units to be assigned to the individual property owners instead of ordering the property to be sold.


Co-owners of property who are in disagreement about either how the property is being used, such as when a property is being used as a residence and one or more co-owners wish to use the property commercially, or whether to sell the property are the most common litigates in a partition agreement. Sometimes co-owners who have inherited an interest in the property seek to sell, whereas the prior owners desire to keep the property as is. If an agreement for the other co-owners to purchase the inheritor's interest in the property cannot be reached, the case often ends up in court.

If a partition action is filed - then the court tries to see of resolution or a buy-out can be made between the owners. If resolution can't be made the court orders the property place with a real estate company for sale until sold then the proceeds distributed as per the owner's interest in the property.


The statutes for OH are:

Persons can be compelled to partition their land:

§ 5307.01

Tenants in common, survivorship tenants, and coparceners, of any estate in lands, tenements, or hereditaments within the state, may be compelled to make or suffer partition thereof as provided in sections 5307.01 to 5307.25 of the Revised Code.

The content of the petition is governed by statute:

§ 5307.03.

A person entitled to partition of an estate may file his petition therefor in the court of common pleas, setting forth the nature of his title, a pertinent description of the lands, tenements, or hereditaments of which partition is demanded, and naming each tenant in common, coparcener, or other person interested therein, as defendant.

The Court orders partition:

§ 5307.04.

If the court of common pleas finds that the plaintiff in an action for partition has a legal right to any part of the estate, it shall order partition of the estate in favor of the plaintiff or all interested parties, appoint one suitable disinterested person to be the commissioner to make the partition, and issue a writ of partition. The court on its own motion may, and upon motion of a party or any other interested person shall, appoint one or two additional suitable persons to be commissioners. If the estate to be partitioned extends beyond the county in which the action is commenced, the court may appoint a separate commissioner or commissioners, not to exceed three, to make the partition of that portion of the estate located in the other county.

Survivorship tenants are treated as tenants in common:

§ 5307.041.

If partition is granted among survivorship tenants, the court shall determine the share to which each is entitled as if the tenants were tenants in common.

Appointed commissioners equitably divide the land:

§ 5307.06.

In making a partition, the commissioner or commissioners shall view and examine the estate and, on their oaths and having due regard to the improvements, situation, and quality of the different parts, set it apart in lots that will be most advantageous and equitable.

If the commissioner or commissioners set the estate apart in lots, it shall be surveyed and platted in compliance with sections 711.001 to 711.15 of the Revised Code and with rules adopted pursuant to those sections.

The Parties can agree to Partition the land amicably:

§ 5307.08.

Before a writ of partition is issued under section 5307.04 of the Revised Code, the person of whom partition is demanded may appear in the court of common pleas in person or by attorney and consent to a partition of the estate agreeable to the prayer and facts set forth in the petition, which amicable partition, when made and recorded, shall be valid and binding between the parties to the partition. In cases in which a requested partition is consented to under this section and in all cases in which the lands are divided among the parties by the commissioner or commissioners, the court shall order the sheriff to execute and deliver a deed to each person entitled to a deed for the portion set off and assigned to the person. Land divided pursuant to this section shall be surveyed and platted in compliance with sections 711.001 to 711.15 of the Revised Code and with rules adopted pursuant to those sections.

If the property cannot be divided, it is appraised and a party may elect to take it at the appraised value:

§ 5307.09.

When the commissioner or commissioners are of opinion that the estate cannot be divided according to the demand of the writ of partition without manifest injury to its value, the commissioner or commissioners shall return that fact to the court of common pleas with a just valuation of the estate. If the court approves the return and if one or more of the parties elects to take the estate at the appraised value, it shall be adjudged to them, upon their paying to the other parties their proportion of its appraised value, according to their respective rights, or securing it as provided in section 5307.10 of the Revised Code.

If the parties do not elect to take the property it can be sold at public auction:

§ 5307.11.

If no party elects to take the estate, at the insistence of a party, the court of common pleas may order a sale of the estate at public auction by one of the following:

(A) The sheriff who executed the writ of partition or the sheriff’s successor in office;

(B) An auctioneer who is licensed under Chapter 4707. of the Revised Code and who is qualified under section 4707.021 of the Revised Code to conduct an auction of real property.

The sale is similar to a foreclosure sale, and cannot be sold for less than two thirds of the appraised value:

§ 5307.12.

(A) A sale of an estate under section 5307.11 of the Revised Code shall be made as follows:

(1) If the sale is made by a sheriff, the sale shall be made at the door of the courthouse, unless for good cause the court of common pleas directs it to be made on the premises. The sale shall be conducted as upon execution, except that it is unnecessary to appraise the estate.

(2) If the sale is made by a licensed auctioneer, the sale shall be made pursuant to Chapter 4707 of the Revised Code.

(B) No property shall be sold for less than two thirds of the value returned by the commissioner or commissioners.

One party may obtain his or her share of rents and profits of the property received by the other party.

§ 5307.21.

One tenant in common, or coparcener, may recover from another tenant in common, or coparcener, his share of rents and profits received by such tenant in common or coparcener from the estate, according to the justice and equity of the case. One coparcener may maintain an action of waste against another coparcener. No coparcener shall have any privileges over another coparcener, in any election, division, partition, or matter to be made or done, concerning lands which have descended.
- See more at: http://www.josephandjoseph.com/partition-action/#sthash.yMoNv6F6.dpuf
Persons can be compelled to partition their land:

§ 5307.01

Tenants in common, survivorship tenants, and coparceners, of any estate in lands, tenements, or hereditaments within the state, may be compelled to make or suffer partition thereof as provided in sections 5307.01 to 5307.25 of the Revised Code.

The content of the petition is governed by statute:

§ 5307.03.

A person entitled to partition of an estate may file his petition therefor in the court of common pleas, setting forth the nature of his title, a pertinent description of the lands, tenements, or hereditaments of which partition is demanded, and naming each tenant in common, coparcener, or other person interested therein, as defendant.

The Court orders partition:

§ 5307.04.

If the court of common pleas finds that the plaintiff in an action for partition has a legal right to any part of the estate, it shall order partition of the estate in favor of the plaintiff or all interested parties, appoint one suitable disinterested person to be the commissioner to make the partition, and issue a writ of partition. The court on its own motion may, and upon motion of a party or any other interested person shall, appoint one or two additional suitable persons to be commissioners. If the estate to be partitioned extends beyond the county in which the action is commenced, the court may appoint a separate commissioner or commissioners, not to exceed three, to make the partition of that portion of the estate located in the other county.

Survivorship tenants are treated as tenants in common:

§ 5307.041.

If partition is granted among survivorship tenants, the court shall determine the share to which each is entitled as if the tenants were tenants in common.

Appointed commissioners equitably divide the land:

§ 5307.06.

In making a partition, the commissioner or commissioners shall view and examine the estate and, on their oaths and having due regard to the improvements, situation, and quality of the different parts, set it apart in lots that will be most advantageous and equitable.

If the commissioner or commissioners set the estate apart in lots, it shall be surveyed and platted in compliance with sections 711.001 to 711.15 of the Revised Code and with rules adopted pursuant to those sections.

The Parties can agree to Partition the land amicably:

§ 5307.08.

Before a writ of partition is issued under section 5307.04 of the Revised Code, the person of whom partition is demanded may appear in the court of common pleas in person or by attorney and consent to a partition of the estate agreeable to the prayer and facts set forth in the petition, which amicable partition, when made and recorded, shall be valid and binding between the parties to the partition. In cases in which a requested partition is consented to under this section and in all cases in which the lands are divided among the parties by the commissioner or commissioners, the court shall order the sheriff to execute and deliver a deed to each person entitled to a deed for the portion set off and assigned to the person. Land divided pursuant to this section shall be surveyed and platted in compliance with sections 711.001 to 711.15 of the Revised Code and with rules adopted pursuant to those sections.

If the property cannot be divided, it is appraised and a party may elect to take it at the appraised value:

§ 5307.09.

When the commissioner or commissioners are of opinion that the estate cannot be divided according to the demand of the writ of partition without manifest injury to its value, the commissioner or commissioners shall return that fact to the court of common pleas with a just valuation of the estate. If the court approves the return and if one or more of the parties elects to take the estate at the appraised value, it shall be adjudged to them, upon their paying to the other parties their proportion of its appraised value, according to their respective rights, or securing it as provided in section 5307.10 of the Revised Code.

If the parties do not elect to take the property it can be sold at public auction:

§ 5307.11.

If no party elects to take the estate, at the insistence of a party, the court of common pleas may order a sale of the estate at public auction by one of the following:

(A) The sheriff who executed the writ of partition or the sheriff’s successor in office;

(B) An auctioneer who is licensed under Chapter 4707. of the Revised Code and who is qualified under section 4707.021 of the Revised Code to conduct an auction of real property.

The sale is similar to a foreclosure sale, and cannot be sold for less than two thirds of the appraised value:

§ 5307.12.

(A) A sale of an estate under section 5307.11 of the Revised Code shall be made as follows:

(1) If the sale is made by a sheriff, the sale shall be made at the door of the courthouse, unless for good cause the court of common pleas directs it to be made on the premises. The sale shall be conducted as upon execution, except that it is unnecessary to appraise the estate.

(2) If the sale is made by a licensed auctioneer, the sale shall be made pursuant to Chapter 4707 of the Revised Code.

(B) No property shall be sold for less than two thirds of the value returned by the commissioner or commissioners.

One party may obtain his or her share of rents and profits of the property received by the other party.

§ 5307.21.

One tenant in common, or coparcener, may recover from another tenant in common, or coparcener, his share of rents and profits received by such tenant in common or coparcener from the estate, according to the justice and equity of the case. One coparcener may maintain an action of waste against another coparcener. No coparcener shall have any privileges over another coparcener, in any election, division, partition, or matter to be made or done, concerning lands which have descended.




Kindly do not forget to positively rate my answers so I can be compensated for assisting you this evening.

Thank you!


If you have any questions, about this or anything else, please ask for me, Law Pro, directly in the question and I will try to assist you as best I can.

For example, you would state, "This question is for Law Pro . . . (then on with your question).


Customer: replied 12 months ago.


thank you for resending it....it came through this time......I read all of it and it addresses many circumstances that do not pertain to my situation so I was wondering if I could be specific about mine. I want to stay married but just want the mortgage debt off my name so I do not loose my rental property if he dies. If he bucks it, and I push the issue, can he stop me? I think you said no. If he calls the realtor and tells then to take it off the market are you telling me I have to take him to court to push the issue and let a judge make the decision and determination of how much the property is worth and how much I am to get? My husband has a large income and mine is small but right now I have had to evict my tenants and I have no income at all. I have one law suite pending right now against one tenant as they trashed the unit before they left and I am corresponding with their attorney and trying to settle out of court but I have a court date set for Nov 5th to evict the other one and they are not paying rent at this time. I currently have no income to petition the courts. My name is XXXXX XXXXX his checking account and I spent all my savings on remodeling the repairs of the one unit. Off the cuff....is he entitled to part of the law suite money since he will not pay any of the mortgage or repairs? This property was mine before we were married and he has not had any involvement in the property at all since we were married, financially or sweat equity. How do I operate without any money or am I stuck?

Expert:  Law Pro replied 12 months ago.
I want to stay married but just want the mortgage debt off my name so I do not loose my rental property if he dies.


That only can be forced that he remove your name from the mortgage if you file for divorce - then, as part of the divorce property settlement the court can order such.

If he calls the realtor and tells then to take it off the market are you telling me I have to take him to court to push the issue and let a judge make the decision and determination of how much the property is worth and how much I am to get?

He signs a Listing Agreement for which if he tells the agent to take it off the market prematurely - he's in breach and the agent can sue him for such. So, he's not going to do that.

My husband has a large income and mine is small but right now I have had to evict my tenants and I have no income at all. I have one law suite pending right now against one tenant as they trashed the unit before they left and I am corresponding with their attorney and trying to settle out of court but I have a court date set for Nov 5th to evict the other one and they are not paying rent at this time. I currently have no income to petition the courts. My name is not on his checking account and I spent all my savings on remodeling the repairs of the one unit. Off the cuff....is he entitled to part of the law suite money since he will not pay any of the mortgage or repairs? This property was mine before we were married and he has not had any involvement in the property at all since we were married, financially or sweat equity. How do I operate without any money or am I stuck?

Regretfully, unless you file for divorce - your stuck. If you file for divorce you can get the court to make him pay your legal expenses. But if you don't file for divorce - regretfully you're stuck.


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Customer: replied 12 months ago.


thank you for the info but I have a couple of more questions.....I have asked him to refinance since the rates are so low. If he refinances and puts the mortgage in his name only am I free from any prior responsibilities? In his assuming the entire loan free me from the previous agreement or can he bring it up in a divorce? It would protect me in his death wouldn't it? I would be asking for my name to be left on the deed as we have gas royalties and I do not want to loose that income. They are going to drill soon and we have not gotten any check yet. Will I loose my gas royalties in a divorce? or since it is joint property I get to keep them?

Expert:  Law Pro replied 12 months ago.
I have asked him to refinance since the rates are so low. If he refinances and puts the mortgage in his name only am I free from any prior responsibilities?

Yes, you would have no responsibility nor liability for the mortgage. However, because you are a "joint owner" if there would be default - the mortgage lender would have to name you in a foreclosure suit just because to remove your name from title - nothing else.

In his assuming the entire loan free me from the previous agreement or can he bring it up in a divorce?

Could always bring it up in a divorce. Any debts incurred during the marriage - are marital debts regardless of who is liable for the debt.

It would protect me in his death wouldn't it?

The mortgage lender would ask you to sign over your deed to them if the mortgage was in default OR they would have no atlernative but to sue you in mortgage foreclosure to be able to recover their security.

I would be asking for my name to be left on the deed as we have gas royalties and I do not want to loose that income. They are going to drill soon and we have not gotten any check yet. Will I loose my gas royalties in a divorce? or since it is joint property I get to keep them?


Who knows. Because OH is an equitable distribution state.

Under Equitable Jurisdiction, a court is required to do what is "fair or equitable" in relation to the assets and liabilities. This does not automatically mean 50/50. Under Equitable Distribution the court does start with the presumption that the assets and liabilities should be split equally. This presumption is overcome by factors indicating that the assets and liabilities should not be shared equally.



In Equitable Jurisdiction the court must rely on Competent and Substantial Evidence as to what character (marital or separate) type of property is not merely on testimony or on speculation.

The court will first set aside non-marital assets and liabilities, such as certain of those assets and liabilities that were obtained prior to the marriage. However, certain increases in the value of assets acquired prior to marriage that occur during the marriage can be subject to Equitable Distribution.

Court will then look at a number of factors to determine whether an unequal distribution of the assets is warranted.

There is a long laundry list of factors:

Factors considered in equitable distribution include:


The length of the marriage.
The age and physical and emotional health of the spouses.
The income or property brought to the marriage by each spouse.
The standard of living established during the marriage.
Any written agreement made by the spouses before or during the marriage concerning property distribution.
The economic situation of each spouse at the time the division of property becomes effective.
The income and earning potential of each spouse.
The contribution by each spouse to the education, training or earning power of the other spouse.
The contribution of each spouse as to the acquisition of any marital property as well as the contribution of a spouse as a homemaker.
The tax consequences to each spouse.
The present value of any marital property.
The need for the custodial parent to remain in the marital home and keep possession of household effects.
The marital debts and liabilities and the ability of each spouse to pay those debts.
Any other factors the court may feel are relevant.



Customer: replied 12 months ago.


WOW!!! thank you for being so thorough....but botXXXXX XXXXXne is this,.....I am screwed weather he dies or we end up divorced!! you have been wonderful and made me aware of situations that I was not even thinking of....he has put me in a loose loose situation.....and to think just a couple of years ago I was set financially to retire at age 50 with no debt.....he told me I was a nothing and he was going to grind me into a nothing. I was a nurse and he took that from me..another long story....and now he will take all my rental properties as well....that is how I got them....I used my nursing income.....he has taken both of my sources of income from me.......and put me in so much debt I will never get out. One last question.....the reason I was wanting my name off the cabin also was because he will not do any of the repairs and the logs are rotting on their foundation. I have asked him to fix them and he won't ....I am responsible for half the repairs since my name is XXXXX XXXXX deed and mortgage......for him to put out $50,000 is a drop in the bucket....for me it was a lifetime of savings.....can I sue him for this neglect? will that hold any weight in court in asking to be excluded from any of the costs to repair or be excused from any of the losses we may incur in the sale since I have been pushing for 6 years and he just bucks me and I pay for all the minor repairs? Where do I stand on all of this?

Expert:  Law Pro replied 12 months ago.
You're welcome. Sorry for the bad news, but please understand that I do have an ethical and professional obligation to provide customers with legally correct answers, even when an answer is not favorable to the customer.

I am responsible for half the repairs since my name is XXXXX XXXXX deed and mortgage......for him to put out $50,000 is a drop in the bucket....for me it was a lifetime of savings.....can I sue him for this neglect?

Regretfully, you are basically liable for the property jointly with his as to third parties - if someone gets in jured.

As to the repairs needed to the property - that could and would be considered part of the division of property in equitable distribution in a divorce. But until the divorce - you would be jointly responsible for the repairs with him.


will that hold any weight in court in asking to be excluded from any of the costs to repair or be excused from any of the losses we may incur in the sale since I have been pushing for 6 years and he just bucks me and I pay for all the minor repairs? Where do I stand on all of this?


The repairs of the property would be considered as part of the court's allocation of assets and liabilities in equitable distribution.

My advice - would stop paying for anything unless you want it later - pay nothing. If the property falls apart - it falls apart.

Only repair those assets you want.

Since your income (his and yours) is considered marital income at this time - I would pay nothing.



Separate Property - the property that each spouse brings into the marriage, that is, the property that s/he owned before the marriage, is considered to be "separate" or "non-marital" property. For the property to remain separate, the spouse must keep it apart from marital or community property; that is, s/he would keep it entirely in his/her name. Once the separate property has been commingled (mixed) with marital or community property, it becomes part of the marital property.




Separate property is rather limited in scope. Generally speaking, separate property only includes:

• Property that was owned by either spouse prior to the marriage
• An inheritance received by the husband or wife (either before or after the marriage)
• A gift received by the husband or wife from a third party (your mother gave you her diamond ring)
• Payment received for the pain and suffering portion in a personal injury judgment
All other property that is acquired during the marriage is usually considered marital property, regardless of which spouse owns the property or how the property is titled.

Marital property is a VERY broad category.

In other words, don’t think you’re not entitled to a specific asset (such as a 401K, stock options, etc.) simply because it is titled only in your husband’s name. Typically, ALL property that is acquired during the marriage is considered marital property, even if your spouse “owns” the property or it is titled in his name.







Customer: replied 12 months ago.

You have explained this better than anyone I have ever talked to.....thank you so much.....but let me make sure I am understanding this right....are you saying since I owned my rental property before I was married and I have kept it completely separate from our marital assets and income and he has not put a penney into it it is still mine in a divorce? the property has paid for itself over the years and he does not get his hands dirty if you get my drift......and half of his 401 K is mine?...any amounts he has put into in since we have been married? Am I understanding you right?

Expert:  Law Pro replied 12 months ago.
You have explained this better than anyone I have ever talked to.....thank you so much.....

You're welcome and thank you for the kind words.


but let me make sure I am understanding this right....are you saying since I owned my rental property before I was married and I have kept it completely separate from our marital assets and income and he has not put a penney into it it is still mine in a divorce?

Well that's basically correct. But the income the rental property gets - that would be considered "marital income" - but that would end on date of separation.

He would not have a claim upon the assets or it's value in the divorce.


the property has paid for itself over the years and he does not get his hands dirty if you get my drift......and half of his 401 K is mine?...any amounts he has put into in since we have been married? Am I understanding you right?


That is absolutely correct!! Any monies he's earned and or his 401K has increased in value during the marriage - that's a marital asset and you have a claim upon the increase invalue PLUS what what marital income has been put into it.


So, I wouldn't be to sure that much of "his" assets are "marital" assets and you would have a claim upon such.


An easy example of the 401K:

Say it was worthh $100 when you got married.

Now after marriage - the 401K gets interest - you have a marital claim on that
That he continued to put in $5 dollars a month - you have a claim on that.

That that $5 dollars earned interest - you have a claim on that.

Basically, his only separate assets are what he came to the marriage with and their value at that time. Any growth or additional value of that asset - that's marital property.


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Thank you!


If you have any questions, about this or anything else, please ask for me, Law Pro, directly in the question and I will try to assist you as best I can.

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Customer: replied 12 months ago.


the income the rental property produced ....you said is marital property..is he going to be able to ask for half of the income it produced? I know this sounds kind of bizzare but why can he ask for my source of income but I can not ask for his paycheck? or have any right to it?

Expert:  Law Pro replied 12 months ago.
Only up to the point of separation.


It would be used to calculate your income for purposes of spousal support.

You absolutely can ask for spousal support and, if he makes more money than you, he's going to pay you spousal support during the pending divorce and potentially for a time thereafter as alimony.

But while you are married and there isn't a pending divorce or separation - he basically doesn't have to give you money nor you him money.

Once you become separated - then you can ask for spousal support and for alimony after the divorce.

Unless a divorce is pending or there is a separation - the court isn't going to get involved and order spousal support.




Customer: replied 12 months ago.


am I going to have to repay him half the rental income I have received over the marriage? and also, his 401 K is put into a trust for his son,,,,will that affect my rights any?

Expert:  Law Pro replied 12 months ago.
am I going to have to repay him half the rental income I have received over the marriage?

Oh no. That was marital income and you guys spent it.

I'm just talking about income for purposes of support from date of separation thereafter.

and also, his 401 K is put into a trust for his son,,,,will that affect my rights any?


No, regardless of how it's characterized - it's increase in value from when you got married and marital monies that went into - that's a marital. That he put it into his son's name will not circumvent your marital interest therein.


Kindly do not forget to positively rate my answers so I can be compensated for assisting you.

Thank you!


If you have any questions, about this or anything else, please ask for me, Law Pro, directly in the question and I will try to assist you as best I can.

For example, you would state, "This question is for Law Pro . . . (then on with your question).
Customer: replied 12 months ago.


you have been beyond wonderful....thank you so much......I lost my nursing career due to a physical injury inflicted by him and have not been able to go back to work as a nurse since then,...can I ask for alimony based on my nursing career instead of my rental income or do they look at the combined income I had from both incomes to determine alimony?

Expert:  Law Pro replied 12 months ago.
you have been beyond wonderful....thank you so much......

You're welcome.

I lost my nursing career due to a physical injury inflicted by him and have not been able to go back to work as a nurse since then,...can I ask for alimony based on my nursing career instead of my rental income or do they look at the combined income I had from both incomes to determine alimony?


You are better off making nominal - the less you make the more he pays.

It's where you are at the time of separation and divorce - the less you make the more he'll have to pay you.

Customer: replied 12 months ago.


WOW!!! thank you for that tidbit of truth!! I talked to two other attornies not from Just Answer and they told me alimony is based on what I made as if he would have to replace my salary and you are telling me to make less is better.....thank you so much..they acted like the more I made the more he would have to replace and to make the numbers high as I could. Am I understanding this correctly?

Expert:  Law Pro replied 12 months ago.
Well there is a concern there - alimony is based upon need and life style obtained during the marriage.

If you are making alot of money - then alimony may not be needed because you can support yourself.

What would obviously be best - is that you have nominal income and get a big alimony award based on need.

Then return to nursing and have both a substantial income and alimony both.

But there are so many variables and the court decides at the time requested.

You stated:

"talked to two other attornies not from Just Answer and they told me alimony is based on what I made as if he would have to replace my salary and you are telling me to make less is better"

Yes, that's true - if you make alot then there is no need for alimony. The less you make the more alimony or money from him that's needed to sustain the life style as during the marriage.

Kindly do not forget to positively rate my answers so I can be compensated for assisting you.

Thank you!


If you have any questions, about this or anything else, please ask for me, Law Pro, directly in the question and I will try to assist you as best I can.

For example, you would state, "This question is for Law Pro . . . (then on with your question).
Customer: replied 12 months ago.


thank you so much for everything,,,,,you have explained things better than anyone I have spoken to...ever...inside this web site or outside. it gives me knowledge to know what to go on and how to make safe decisions and your advice on how to handle all of it is great. thanks again...blessings......

Expert:  Law Pro replied 12 months ago.
You're welcome. Thank you for the kind words.

Good luck!!!


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