Legal Question in Family Law in New York
property rights
I bought a house when I was single in Dec 1994 for approx $37,500 and was the sole owner and sole person paying the mortgage. My boyfriend moved in in Spring 2001. I continued to pay the mortgage for the time being. We were married Dec 2001. After my daughter was born in June 2002, I quit my job and my husband started paying the mortgage while I stayed home taking care of her and my son who was born in 2004. I now have the money (due to a settlement from a personal injury) to pay off the 24,284.15 I still owe on the house. We never took the house out of my name to add his name(just changed it to my married name). So, I paid the mortgage for 7 yrs and he did for going on 4 yrs, and I would be paying off the remainder, and of course I owned the house before we were married. Would I be legally entitled to the house in case of divorce? Also, are there any circumstances under which the mother loses custody of the children? (aside from major things like reports of abuse or drug use, etc?) Currently, my husband works a B shift (long hours too) and I am a stay at home mom. I would not even consider a divorce, no matter how much I wanted one, if I thought there was any risk of losing custody of my children! (ages 2 and 3 1/2)
2 Answers from Attorneys
Re: property rights
You would be legally entitled to retain ownership and title to your house in the event of divorce, on grounds that it is your separate property.
However, your spouse would be entitled to claim and receive a share or interest in the appreciation and value added or contributed to your house, during your marriage, directly and indirectly, from his "separate" property and resources.
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Today Courts do not need to find "unfitness" of a mother in order to award child custody to a father.
The current assumption is that BOTH parents are equally entitled to have custody of the children, born to a marriage.
Which means that, you as mother, do not automatically have or get custody of the children of your marriage.
Thus, If there is a dispute between you and your husband that remains unsettled regarding who should 'RETAIN' primary custody of your children, and visitation terms are not agreed, the Court can decide the issues, in a way that you might not like.
Suggest that you begin to regularly take time off from the children, during the day and occasional evenings. Resume a few "grownup" activities that please you. Then, consider personal or job counseling or therapy, to help you clarify your real feelings about whether divorce or remaining married will serve all of your needs in the best way.
Good luck,
Good luck,
.
Re: property rights
Your husband may claim and reasonably expect some part of the value in the home. Record title is not a significant factor - it was separate property going into the marriage and at least part of it became marital property because of your spouse's contributions. As to custody, the legal rule is that custody is determined solely in the best interests of the children. The fact that you are the primary caregiver for such young children would weigh in favor of keeping custody with you, but there are so many other variables that you need to consult with an attorney to get a valid assessment. Feel free to call my office to discuss your case in detail.
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