Divorce Settlement Should Resolve Property Dispute
Added March 13, 2009 by Ilyce R. GlinkSummary: When you get divorced your divorce settlement should outline who gets what property and how it's divided up. Property issues that can be resolved in a divorce settlement can include rental property or primary residence issues. If you and your ex-spouse own rental property together and one of you wants to sell, you must both agree or one of you must take on responsibility for the property on your own. If the divorce settlement didn't clearly decide who owns the rental property and an exit-plan for it, you may need to involve lawyers.
Q: I own a condominium. The property is worth anywhere from $110,000 to $119,000, but I owe $125,000 on it.
I'm the only person on the loan but the property is deeded to my ex-wife and me as joint tenants with rights of survivorship. I want to take possession of the property solely so that I can sell it and clear it off my credit history. It is dragging down my credit report because it is a burden to my debt-to-income ratio.
Unfortunately, I am unable to move ahead with this plan because my ex-wife is attached to the property emotionally and will not agree to let me sell it. I will gladly give her sole possession of the property if she wants to refinance it into her name but she refuses. She wants to have her cake and eat it too.
She doesn't reside in the property. It is being rented to a friend of hers below market value. Is it possible to get a court order to have her refinance the condo into her name only? And if she is unable to refinance the property for any reason within a certain amount of time, does she sacrifice her right to the deed?
A: Please talk to your divorce attorney. The issue of this property should have been settled in your divorce agreement. If your ex-wife was given half of the property as part of the settlement, then you will have to buy her out or risk letting the property fall into foreclosure, hurting your credit score and hers.
If the tenant is paying a below market rent for the property, you might insist that your ex-wife make up the difference or rent the property out to a tenant that will pay market rent. If your tenant doesn’t pay enough to cover the costs of the property, is your ex-wife chipping in to pay the difference? If she isn’t and won’t cooperate, your only option may be to get the lawyers involved again.
However, you might want to persuade your ex-wife that paying the lawyers money that could otherwise go to paying for the expenses of the home would not be the best course of action. It’s in both of your interests to settle this amicably. Litigation should be your last resort.
Hopefully, your ex-wife will agree to a meeting with you or your attorney to discuss the facts and your proposal for dealing with this property. It's past time for you and her to move on.
March 13, 2009
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(View All Topics)assets credit divorce lawyer marriage mortgage mortgage loan personal finance advice quit claim deed real estate real estate advice real estate law refinance mortgage selling title
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Comments
Tracy says
in my divorce decree, my ex-husband was to have his attorney prepare document for me to sign over the house. he never did and my name remaind on mortgage and deed, now he is deceased and his sister is excutive of the estate. is the home still leagly mine?
lisa says
I have a house my father purchased for us with the verbal knwledge we would pay him( the titel is in our name) back that has not happend can in a divorce can my husband claim anything? We are in OH.
Ilyce says
Tracy: You need to speak with a real estate attorney or an estate attorney ASAP. Since your husband never prepared documents to have you sign over the property, and your name was on the mortgage, you may indeed own the house, although your former sister-in-law may fight you on this. You need legal help to determine if you're entitled to the entire house, a piece of it, or none of it. It's possible that your ex-husband really wanted you to have the property, since he never executed the proper paperwork. Thanks for your comment. Ilyce Glink
Ilyce says
@Lisa Your father clearly made a mistake by not executing a written contract that specified the terms of the deal. It should have said how much money was being lent, at what rate of interest, and when the funds were due to be repaid. He could have, and probably should have, recorded the mortgage against the property. Too late for that now. You're getting divorced and I'm sure your soon-to-be-ex-spouse is thinking that this cash should be treated as a gift, to which he was entitled to half. Unless your father has some sort of written record (letter, email, etc.) that describes the deal, you may be out of luck. Since you're getting divorced, you'll need a good divorce attorney. This would be a question to ask him or her and should be a deal point in your ongoing negotiations. BTW: I have written an ebook that might help you: <b>"Divorce and Your Finances"</b>. You can buy it in the ThinkGlink.com store (www.thinkglinkstore.com or click on the STORE link at the top navigation bar. I hope this helps. Thanks for your comment.