Beware agreements to sell property at a future date!

When you get divorced, there is often a home or other property that needs to be sold. While in the midst of a divorce, you may think that you can sell the property quickly, but when the time comes to actually sell, your ex might not agree, something breaks and needs to be fixed, or the market has changed (never forget the crash of 2008). An issue often arises about who gets credit for mortgage payments while the property is for sale. It would seem that the person who put the money out of pocket should get that recouped, but that isn’t the law in NJ, and many unwary people find that out the hard way. So you have to lay out how to treat the post divorce, pre sale, mortgage payment in your MSA.

Amir v. Amir 2009 WL 2513815 (unreported)

“There is no provision in the agreement, or in either of the pendente lite orders, providing a credit to plaintiff for post-judgment monies paid by him against the mortgages until the properties sold. Contrary to plaintiff’s assertion, the agreement was not silent as to the post-judgment mortgage pay downs. In fact, the agreement addresses both the party who was to pay the mortgages during the period in question, and the distribution of the sale proceeds for each home. If plaintiff had wanted to recoup the post-judgment mortgage payments, he could have provided as much …[in the agreement], or he could have inserted a date on which…home was not sold, the parties would then contribute equally to the mortgages or that he would recoup all of the payments after that date. Instead, after significant negotiations, the parties agreed that only plaintiff would pay the mortgages for an undetermined length of time, and that each party would receive ‘50% of the proceeds;’ that agreement is what the court enforced.”

see also Tinfow v. Tinfow, New Jersey App. Div. (2009)