In the Good Old USA, the issue at hand is not one about paying the bills, but about the type of agreement involved and the rights of the parties under the laws of these agreements. The issues is not one of federal law, but of common law, which pretty much applies to all 50 states, except maybe Louisiana ( their equivalent of common law is based on Napoleanoic Code) and Texas ( they do their own thing) Under BASIC Common Law, A LEASE IS A CONTRACT BETWEEN TWO PARTIES ENTITLING ONE PARTY, THE RENTERS, THE RIGHT TO USE PROPERTY OF THE LANDLORD IN RETURN FOR PAYING RENT. WHILE EACH STATE HAS VARIATIONS ON ITS RENTAL LAW, ESSENTIALLY THE FUNDEMENTAL ASPECTS OF LEASES/CONTRACT LAW ARE THE SAME. A DIVORCE COURT CANNOT INVALIDATE A LEASE. NOR CAN ONE SPOUSE THROW ANOTHER OUT IF BOTH NAMES ARE ON THE LEASE AS BOTH PARTIES HAVE THE RIGHT TO USE THE PROPERTY UNLESS THE RENT STOPS BEING PAID. Now, here's where I agree with you. If the rent stops being paid, you can garnish wages, or seek redress through the courts---BUT YOU CANNOT THROW YOUR SPOUSE OUT OF THE PROPERTY IF THEIR NAME IS ON THE LEASE UNLESS TWO THINGS HAPPEN 1) The spouse in question has to agree 2) The landlord has to agree And most importantly, a new lease or an addendum MUST be gdrawn up. Unless a restraining order is issued by a court, for cause ( ie: my spouse is a danger to me) the courts cannot break the lease. If a restraining order is issued, then, the financial responsibility of the individuals names on the lease still exist, but, the spouse cannot return to the apartment. All 50 states have what I just described as basic rental law--some states are more favorable to the renters, and some are more favorable to the landlord, but essentially this is the law in all 50 states.
A MORTGAGE ON THE OTHER HAND ENTAILS OWNERSHIP OF PROPERTY BY A PERSON(S) OR A COUPLE---The mortgage is a contract as well, but it is not a contract whereby you have temporary rights to a property. A mortgage is entered for the purposes of acquiring property. Any property among married individuals is considered a marriage asset. While Redjohn is correct that individuals do not own title outright until the mortgage is paid off, he misses the fact that in the USA, all state usury laws require some form of equity to build on the property during the period of the mortgage. The people/couple named in the mortgage jointly own this equity. Additionally, since the goal of the mortgage is permanent ownership, a court has the right to intervene in a dispute between a husband and wife without the approval of the mortgage company to divide the marriage assets if no compromise between parties can be reached. When you pay a mortgage, one spouse can be kicked out of the property and still be required to pay for the mortgage. The court could assign the asset to the wife, or husband. In other circumstances, the court can order the property sold and the proceeds used to pay off the loan with any excess being split between the husband/wife.
WHEN IT COMES TO RENTING---SHORT OF A RESTRAINING ORDER FOR CAUSE, THERE IS LEGALLY NOTHING YOU CAN DO TO GET SOMEONE KICKED OUT OF AN APARTMENT WHEN THEIR NAME IS ON THE LEASE IF THEY WANT TO STAY. It is much easier to kick someone out of a house with a mortgage than it is an apartment or other rental property.
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You question requires alot more information to make a good answer, however taken on its face value. Are you both on the lease or is just hubby on the lease? If you are both on the lease then are you both contributing 50-50 to the expenses of the apartment. Leases, unlike ownership of houses are more difficult in divorce cases to settle because the parties, namely you and your husband enter into an agreement with a third party to pay them for the use of real property. SO from a legal standpoint, he is in a real problem area because if you throw him out, he is still responsible for the payment of the lease, yet he would not be entitled to using what he paid for. Why? Because in almost all 50 states and DC, PR and other territories, the law recognizes that people renting property are doing so only temporary. It is alot easier to get someone removed from your house than from an apartment.
How much time is left on your lease? It may be possible for you to move out early and get a new place, or have the lease changed to only your name. The key point here is that when trying to claim for expenses, you would not be permitted to claim housing expenses for the time period during which hubby would have been living with you.
If his name is on the lease, then the question asked has to be: does the lease predate your marriage. If it does, then there is virtually little you can do to kick him out, unless he has done something to cause an order of restraint against him. Additionally, you also run the risk of the landlord not wanting to extend the lease to you--especially if you are an at-will resident.
without any more information, the short answer is no, and also, in 28 states, your phrasing of the question above would reflect bad on you if you were to go into court. The best way to win at divorce, if you have to fight is to remain cool and play the law correctly--not from an emotional standpoint. I wouldn't classify your question as gold-diggerish, but I would question the integrity of your position solely onthe wording of your question above, without any more information. You may be justified in asking it, but this type of question, without further information is not necessarially one that can be easily answered and perhaps AB might want to reconsider these types in the future....
There is asignificant difference between a lease and a mortgage. A lease is a long term debt instrument that is used to finance the purchase of real property. A lease, typically is short term in its duration and does not confer permanent ownership of real property. As such, the property can revert back to the landlord at any time. To put it another way, each time you pay a mortgage, you build equity in a property--at some point in the future your equity will be 100% and you will have title to the property. Since you have some ownership in a property financed by a mortgage, the property can be assigned--meaning, either the parties on the mortgage, or say, the courts can make a determination over who will control the property. That's how one spouse or another could wind up with the property in a divorce. Once the assignment has been made, as a matter of law, the parties not assigned are relived of their responsibilities by the court, unless otherwise directed.
Example #1: Spouse A/B go through a divorce. They pay mortgage on a house in which they jointly are listed as co-payers and they have 20% equity on the property. The court orders a divorce for both parties and in awarding joint property, spouse B is awarded and assigned the property according to the court order. Under the court order, spouse B has been assigned the property and is now 100% responsible for all bills. Spouse A has been relieved of the burden of ownership. They do not have to pay any monies to cover the mortgage by virtue of the court's decree.
Example: Same as above. This time instead of one single order, the court makes two orders: Order #1: Assignment Award: Property is awarded and rights are assigned to Spouse B. Order #2: Spouse A is ordered to pay a portion of the mortgage until such time as either : (1) the court decrees, during periodic reviews of the situation (2) Children reach the age of majority, (3) Indefinitely, (4) Until Spouse B remarries or enters into a union with another individual in which reasonable sharing of expenses would be expected.
In other words, the court has to make 2 decisions---its so common to make the decisions in one directive that people forget that the issue is actually two separate issues---ownership is the first issue and support is the second issue.
Comments
fairly accurate
by chicago1975 on March 8th, 2006
There is little difference between a lease and a mortgage - both need to be paid by one or both parties.
by RedJohn on March 9th, 2006
good examples
by Answers101 on March 27th, 2006
RJTRIES - has made the point quite clearly!!
by COACHJAMES on October 22nd, 2009
I live in CT with my husband and 2 children, we are renting but only MY name is on the lease (Fiscally responsible), we are not getting along and the extreme stress has caused me to have multiple panic attacks (which I never had before), one of which sent me to the hospital. He does not hit me, but is emotionally and verbally abusive. I have tried and tried, but for the sake of my health, I want to at least have a seperation, which he will not agree to. Can I kick him out of the house, even though he has established residency? Help! Thank you
by momma77 on February 16th, 2011