Settling Condo Finances After Divorce

Added July 25, 2007 by Ilyce R. Glink and Samuel J. Tamkin

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Summary: A woman is divorced from her husband, who lives the the condo they purchased together. She has a deed of trust and a lien on the condo, but the husband refinanced under his name. If there is a lien on the property, the husband should not have been able to refinance, so the lien may not be effective.

Q: My divorce was final a couple of months ago. My ex-husband kept our condo and I moved out.

I have a deed of trust and a lien on the condo. My ex-husband refinanced the property under his name and I recorded the note against the title.

What should I do to get money from him before he sells or refinances the property again?

A: If you had a lien on the condominium, your ex-husband should not be able to refinance the property unless you get paid off.

A deed of trust, which is another name for a mortgage, is a legal document that is recorded against the title to a specific property. That document creates a lien on the property. But the document must be properly prepared, signed and recorded to be effective.

If the documentation was not properly prepared or recorded, the lien isn't effective. If the divorce decree specifies that you are to get a certain amount of money from the condo and it specifies when you are to get the money, you may have to file additional court documentation and force your ex-husband to pay you what you are owed.

You'll need to talk to your divorce attorney and see what your options are under the divorce decree or with a real estate attorney to determine whether the documentation that you claim to have recorded against the home was done properly.

If the documentation recorded against the home was recorded properly, you may have additional options under the deed of trust. If your ex-husband "refinanced" and he did so contrary to the terms of the deed of trust, you may be able to call the loan due or foreclose on the property to force your ex-husband to pay you.

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