Why This Matters

The separation and divorce process can take a long time. The sale of the family home doesn’t typically happen immediately (if at all). This part of the divorce process can drag on for months or even years.

In the meantime, life happens. New relationships may start, children come into the picture, or you may have children from a previous marriage. Whatever your situation, you may not want your share of the matrimonial home to go to your Ex. In this case, you must sever the Joint Tenancy and move to Tenants in Common AND update your Will.

And, you can do this without the permission of the other party, so in cases where there is conflict or disagreement and your Ex is being uncooperative, you can have this done and protect your share of the matrimonial home.

A Help in Moving On

Not all divorces are acrimonious and sometimes a change in ownership structure is a way to move on. As an example, Roseanne called me to discuss her impending divorce. After 34 years of marriage, the husband wanted out. Secretly she did too. They got along great, but mostly because they knew it would be easier to see each other at family events if they did.

They wanted me to list the matrimonial home. When I asked where they were each going to live, he had a rental property in place and she planned to buy. That said, they had no idea how to end the marriage and begin the process of divorce, so I sat them down and talked them through it, starting with the Separation Agreement.

She had been a stay-at-home mom for most of their marriage and wouldn’t qualify for a big mortgage. As a recently separated woman, she would also need a signed Separation Agreement to qualify and that could take months. They agreed that she would keep the lion’s share of their assets and he would keep his work pension. It was all fair.

She didn’t qualify for a mortgage alone, so they put the divorce/separation on hold, sold the matrimonial home and bought a condo townhouse together as Tenants in Common. They had a small mortgage on the matrimonial home, and because they bought the new one together, they were able to port the existing mortgage and place it on the new property. She is 99% owner of the property, and he is 1% owner. 

After she moved in, they formally separated, leaving her the asset in the Separation Agreement, and the pension goes to him. It all became a paperwork thing. He is still on title with her, and she manages the mortgage payments. Once the term is over, they will remove him from title and she will then need to qualify for a new mortgage on her own with the signed Separation Agreement in place.

Because both parties wanted the best for each other, we were able to come up with a creative way that she could purchase, and he could leave. The only risk is that he could change his mind one day afterwards, but they trust each other to respect the arrangement. They are now moving towards divorce, she has a home, and he has moved on.

It is important to be proactive when separating to ensure your interests are carried out should the unexpected happen. Always consult with a family law professional in these matters to ensure your rights and interests are protected.