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Divorce ex wife awarded to live in property for five years

Discussion in 'Division of Marital Property' started by William G Scott, Apr 1, 2021.

  1. William G Scott

    William G Scott Law Topic Starter New Member

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    Jurisdiction:
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    Hello during my divorce my ex wife was awarded to live in property for five years. In that five years she has to refinance and if she can't she must sell the property. June 2023 will be the five year mark. If she doesn't refinance does that mean the property must be sold by that time or she has to list it after? If she fails to list it can I list it since I am still on the loan and deed? Or do I have to go through the lovely process of contempt of court and then get it through them in writing I can list it for sale? I wanted to double check here a local attorney said it means it has to be listed after that time and if not I have to file contempt of court. But, is that necessary if I'm still an owner of the property? I just want to be prepared as she's tried supposedly several times and can't qualify for refinance so I foresee it being sold which I'll get a little under 50% of the profit.
     
  2. zddoodah

    zddoodah Well-Known Member

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    Is your divorce decree based on a marital settlement agreement that was drafted by your attorney or your ex's attorney (or jointly by both of them)? Or was it written by the court? In other words, who is responsible for the language that appears in the decree?

    We cannot possibly interpret the language of your divorce decree that we haven't read.

    What is "it" and who are "them"?

    So...you're asking folks here (who haven't read your decree) to tell you that what this attorney (who presumably has read the decree) told you is wrong?

    Keep in mind that, since both of you are titled owners of the property, both of you will have to sign off on any sale.
     
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  3. William G Scott

    William G Scott Law Topic Starter New Member

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    I can gladly upload the decree if that's allowed I'll just blank out names and everything. I think it was written by my lawyer but not 100% sure. What I meant by them is the court. By it I meant the property/house. The local attorney I asked didn't read the initial decree just gave an answer based on what I told her was agreed to. If I am allowed I can gladly upload a copy for opinions. My main question really is I know the property has to be sold if it's not refinanced but if she doesn't list the property after the five year mark do I have the ability to list it for sale after the time allocated or do I have to go through the contempt process when my name is still on the deed and mortgage. Also, I assume it means that after that time it has to be sold not before.
     
  4. adjusterjack

    adjusterjack Super Moderator

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    Then you got a bad answer and should avoid that attorney in the future. You will also get a bad answer here unless you can upload the decree which is permitted by using the green "Upload a File" button.

    Just understand that our opinions are not legal advice, just helpful comments.
     
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  5. William G Scott

    William G Scott Law Topic Starter New Member

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    Understood totally that it isn't legal accurate but helpful advice. Just figured I'd reach out to see if anyone's been in a similar situation. Appreciate any tips. I already tried contempt once for her being late 3-4 times on the mortgage and hurting my credit but he threw it out claiming the payments were "too old" that were late but there's because of COVID and taking almost a year to get in the d##n court room lol. I know for complete legal advice I'd consult an attorney. This one was good she got me a modification and lowered my child support which double what's in this decree for a year... Just looking for helpful insights and understand this isn't a lawyers advice just normal people like myself.
     

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  6. army judge

    army judge Super Moderator

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  7. William G Scott

    William G Scott Law Topic Starter New Member

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    Gotcha so basically after the time hits the five years I can basically petition for contempt and request the partition to force it to be sold? My other question is, if I already have ownership, at the five year mark and she doesn't refinance then why can't I just list the property for sale since I still "own" the property. Why do I have to go through the court to do it and that process?
     
  8. adjusterjack

    adjusterjack Super Moderator

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    Here's the part about the dwelling:

    upload_2021-4-1_20-41-18.png

    Having been through something similar when I got divorced, here's my 2 cents worth.

    She has 5 years to the day to refinance. The paragraph is silent on who gets to do what, only that the townhouse be sold and the proceeds divided.

    You can list it but you'll need her cooperation and signature to actually sell it. If she cooperates you're fine. If she doesn't, you end up in court, but not for contempt because contempt requires proof of willful disobedience and judges often grant extensions after extensions. And you know how well contempt worked for you last time.

    You'd be better served by a partition action since all that needs is a disagreement to get the judge to order the sale. Once you actually file the partition it shouldn't be too difficult to get cooperation when it becomes clear that the property will be sold by the court, at auction to investors, for a lot less than it could be sold on the real estate market, meaning her share of the proceeds will be a lot less. But so will yours so the one who is more desperate for the money has less leverage. Unfortunately, partition is a long process but so is contempt. People don't often get sent to jail for contempt during divorces so there is often no end in sight whereas a partition action eventually leads to a sale.

    By the way, what's happening to you is very common with joint property after a divorce. It's often a given that the person awarded the property is unable to refinance on her own, especially if she has the lesser income and is the custodial parent relying on child support. It's no surprise that she can't qualify for a new mortgage.

    Answer me this: What is your goal? To get the money out of the sale or to get out from under the ownership and mortgage obligation? If both, which one is paramount to you?
     
    Last edited: Apr 2, 2021
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  9. William G Scott

    William G Scott Law Topic Starter New Member

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    So in all honesty, I will take the money if it comes to that but to be honest I want the mortgage out of my name more than anything especially after her being late 5-6+ times hurting my credit. I just got it back to where I can buy another house (close tomorrow) so I prefer it to get out of my name. The current lender said she can do an assumption and remove my name but she can't roll in closing costs so she hasn't done it. It's in her better interest to do that or refinance because she can then flip the property and make money and I get nothing. I know that she has to sign to sell it as do I. I don't foresee that being an issue but you never know. So I can list it at the five year mark without her approval? But to close of course it requires her signature. I'm hoping it doesn't come to any of this but I want to be prepared for whatever. She's definitely money hungry where as I'm not. Although she never worked and paid a dime into this property lol. I did she was a stay at home mom until about two years if that before the divorce and then became an RN. At that time prior we rented it out so she's put no money into it until awarded it during the divorce which she didn't want it initially until she realized renting would be way more per month then the payment on it.
     
  10. adjusterjack

    adjusterjack Super Moderator

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    Once you are financially safe in your new house, and you want the mortgage out of your name more than anything, why not offer to pay the closing costs so she can get the assumption and you get out from under? Clean break without waiting another two years.

    Yes. You'll need a realtor who will accept a listing contract with only one signature. You'll need your ex's cooperation to show the townhouse to prospective buyers. Remains to be seen how that plays out. You'll need her signature to accept an offer and go into escrow.
     
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  11. zddoodah

    zddoodah Well-Known Member

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    I'd rather you just quote the relevant language. Based on the part that "adjusterjack" quoted, here are my thoughts:

    She has a full five years to try and refi. Once that five year mark passes without a refi, the property must be sold.

    The quoted portion says nothing about the act of listing.

    If she hasn't refinanced after five years and then fails to cooperate with listing the property, you can seek a contempt citation.

    Since you apparently own the house jointly, neither of you will have the unilateral ability to list the property. You'll need to do that jointly. Note that I'm talking about a proper listing. No competent realtor will list it without both of you on board.
     

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