Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.
“My exhusband and I own a house together. I recently found out that the rent he is receiving covers the mortgage and he makes about 600 extra. Do I have the right to 300 of this? In our divorce decree it only states he is responsible for the mortgage and upkeeping of the property not about extra money that is made. The house was to be sold 90 days after the divorce in 2006, but that never happened. He decided to rent it to cover the mortgage, but now he is making money with it. I am 50% part owner. Do I have the right to the extra money?”
This question is hard to answer without knowing more of the specifics of your property settlement. It doesn’t sound like you and your ex-husband set forth any clear terms as to sale of the home, i.e., what would happen in the event the home was not sold – would your ex-husband have been responsible for the mortgage payments indefinitely? As I understand your situation from the limited facts you’ve provided, you are technically still co-owners of the house (tenants in common) and each of you are entitled to your half of the rental income and mortgage payments associated with the home. Thus, you should be able to collect your share of the net rental income.
One way to make up for this difference would be at the eventual sale of the home. If and when you do sell the home, you can account for the rental income and possibly deduct that from your ex-husband’s equity in the house. For example, if the net proceeds from the sale amounted to $100,000 and your husband collected $7,200 in rental income, you would be able to recover your half of the rental income ($3,600) from his share of the equity. Following this example, the proceeds would be paid out $53,600 to you and $46,700 to him. However, without knowing which state you live in or the specifics of your property settlement, it’s impossible to give a firm answer either way. Often these issues are overlooked in the divorce decree, which creates problems later on. That said, if you believe you’re entitled to the rental income you should meet with your divorce attorney or find a new one to discuss your rights in the home (ownership and rental income).
