I bought this house 5 yrs ago w/money from a prior house I owned. I've been married 14 mos. and filing for divorce in NJ. There is no equity in the house & I have 2 kids from a prior marriage. Must sell because I can't pay the mortgage. My husband has not worked in 3 yrs and refuses to leave. He says he won't sign anything until he sees a lawyer which he doesn't even have money to pay for. There is no equqity because I recently refinanced. He is not on the mortgage or deed. Do I need his signature to list my house?
Dear New Brunswick,
Thank you for your inquiry. There is mostly good news and a little potential bad news. The good news is that assuming your husband has put no money into the home, and considering you put pre-marital money into the home (and assuming you did not live together for any significant period of time before marrying) there is a high likelihood you can sell the home without him. However the bad news is he might make an alimony claim against you if he ever gets into the divorce. His prospects seem slim to none BUT he can still make the claim which could mean delay for you and delay could mean money spent as the mortgage temporarily continues. I would be happy to assist you if you deem it necessary. Please see my profile.
Aniello D. Cerreto, Esq.
Real Estate Attorney
Irrespective of whether your husband is on the deed or mortgage, in order to sell the house, you will need his signature. Under New Jersey law, even if not in title, a spouse has a definitive right to possession of a principal marital residence that cannot be extinguished without the spouse's consent. Now, if your husband refuses to cooperate, once you file for divorce, you can file a motion to either compel his cooperation, or ask the Judge for Judicial Power of Attorney to sign on your husband's behalf. But either way, you cannot give clear title to the house until your husband's interest is addressed.
Feel free to call for further discussion.
To clarify my answer, I was answering purely from a divorce perspective that a family court judge would grant you permission to sell alone given the facts as assumed and presented. However, it is correct officially that your husbands interest has to be "addressed" but your prospects of prevailing are high.