Q: My mom and dad got divorced over 15 yrs ago and my dad kept the house. In my dad’s divorce papers it says that my mom gets one-third of the cash from the house if it gets sold.
My dad got remarried and then died. His new wife wants to sign the house over to a family member. Does my stepmother have to pay one-third of the house’s current value to my mother if she signs over the house to my nephew? (No money is involved in the transfer of the house)?
A: Your question is complicated due to the time involved and the actions taken 15 years ago by your mom and dad. The answer to your question is very dependent on the language used in the divorce decree and the intention of the parties.
Let’s assume the house had a value of $100,000 15 years ago and a mortgage of $80,000. If the property had been sold at that time, your mother would have received less around $3,000 from the sale after taking into considerations all of the costs of selling the home, including the real estate broker’s commission.
Did the divorce decree contemplate that she should get one-third of the proceeds from the sale or one-third of the profit from the sale? What other conditions were placed on the payment to your mom? Did the divorce decree set any time limits for the sale or limit the payment to your mom in any way? What laws of your state determine the enforceability of the divorce decree 15 years after the fact?
I would suggest that you review the divorce decree to determine what it says. If the divorce decree spells out the details you may have something to go on by following that language. But if the divorce decree does not spell out the details as to what your mom was entitled to, it may be very difficult to determine what the parties intended.
Sometimes well intentioned parties don’t spell out the details as well as they should. You may find that your mother’s situation falls into the category of not knowing what the parties intended. You may have to consult with the divorce attorney, if you can find him or her, to determine what was negotiated and what your mom should have gotten from the sale of the home.
You may also find out that your father transferred title to the home to himself and to his new wife some time ago and that the title to the home actually transferred upon his death to his new wife. If the title transferred, it’s possible that the new wife owns the home free and clear of any obligation under the divorce decree.
If you are able to ascertain the intent of your parents’ divorce decree and can come up with a solution that your mom can agree with, then your father’s new wife can comply with the terms of the divorce agreement and everybody can come out in agreement.
Seldom, however, do thing work out where everybody sees eye-to-eye on these issues. Before you start negotiating or even talking about a solution to this issue, you need to determine where everybody stands.
There are other matters that could affect each party’s right and obligations to the party and you would be wise to talk to a real estate attorney and the divorce attorney before taking a stand on the issue.