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LawTalk, Attorney and Counselor at Law
Category: Family Law
Satisfied Customers: 35306
Experience:  30 years legal experience. I remain current in Family Law through regular continuing education.
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Following our separation I am now living in my home country.

Resolved Question:

Following our separation in the USA I am now living in my home country. My estranged husband and I had agreed we would retain our USA house, maintain mortgage payments and rent it out to cover costs and sell when the market improves. Following rehab for his alcoholism he now wants to sell the property which, in theory I'm not against but, I'm not being consulted on any decisions. He has appointed a realtor and following his undisclosed conversations with her he is now using funds loaned to him by his family to make good some of the repairs which according to the realtor need to be done. So far he has spent close to $10,000 saying, via email, we can "sort the details out later". I have asked for a statement of how much money we owe on the mortgage - he has previously been fiscally irresponsible by "forgetting" to make mortgage payments which have taken us perilously close to foreclosure on two occasions which had to be sorted out via a lawyer which I paid for I need to know if these missed payments to our lender (I had paid my husband but he neglected to pay the lender) have been incorporated into the capital as a starting point. Then, what legal 'force' can I use to get prevent him from just spending and spending without consulting with me because, for sure, he'll want me to pay half! I am also concerned that he'll take any proceeds from the sale and just refuse to pay me anything from those proceeds - we each put in an equal amount for our deposit. I have asked for receipts from this work being done and to see competitive quotes but none are forthcoming. The realtor has sent me a 21 page document to sign appointing her but I'm resisting signing this until I can force my husband to become financially transparent and allow me to become involved in the decision-making process. I am concerned about implications for me if I don't sign though. Is it easier to go straight to a divorce lawyer and if I do so, will they be able to assist with putting on the spending brakes and ensuring I am correctly compensated after a sale or, is there something like a power of attorney who can act on my behalf?
Submitted: 5 years ago.
Category: Family Law
Expert:  LawTalk replied 5 years ago.
Good afternoon,

I'm sorry to hear of your dilemma.

You are right to be concerned. I presume that you are on the title to the property just as is your husband. Your written permission is needed to even list the property for sale with a Realtor, and without your signature, he can not sell the property.

As you are no longer in the country and cannot oversee the work being done, I would strongly suggest that you consider something a bit different, and that is for you to hire your own Realtor to specifically look after your best interests, separate and apart from your husband's Realtor. It would likely increase the Realtor fees, but you would be assured that you are not being taken advantage of, and could save you many thousands of dollars in the meantime. Additionally, as the cost of a Realtor is taken out of the sale before the distribution to the sellers at escrow, your husband would in effect be paying half of your Realtor's fees anyway.

As it stands now, you can not prevent him from spending money to repair the property. However, he does not have the ability to encumber the property with the loans he is getting, and you have no personal liability for the debts he is incurring.

It would be a good idea for your attorney to put him on notice that every penny will have to be accounted for if he intends to claim some sort of offset from the distribution of the sale proceeds to reimburse repair expenses.

The money that you gave him to pay the mortgage, but which he spent on other things will be rather problematic, because you are still married and technically, even though you are out of the country, the marital income will generally not be subject to recoupment in a divorce---or in this matter on the sale of the property. However, it is something that you may get some leverage out of when it comes time to divvy up the proceeds of sale.

I wish you the best in 2011.

Because I help people here, like you, for a living---this is not a hobby for me, and I sincerely XXXXX XXXXX abiding by the honor system as regards XXXXX XXXXX I wish you and your family the best in your respective futures.

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Customer: replied 5 years ago.
Oh this is fantastic to have such clarity. One point though - if I appoint my own realtor couldn't my husband, at "divvying up" time simply refuse to pay half on the basis that he hasn't agreed to such a path to take? I'm sure he'll simply say that if I appoint a realtor separately from his own that it would be at my own cost
Expert:  LawTalk replied 5 years ago.
Good afternoon,

Well, you will want to make certain that your Realtor is instructed that the escrow office is to make final payment by one check in both of your names, to be held by your Realtor until such time as an agreement regarding the distribution of the proceeds can be agreed upon. If necessary you can apply to the court seeking declaratory relief and allow the court to divvy it up.

You just tell him up front that based on his screw ups in the past that each of you will have your own Realtor, and that their fees will come out of the sale of the property since he can't seem to get his act together.

If you take charge---and tell him that you will not allow the sale unless he agrees---he really won't have much to say if he wants to sell.

I wish you success.

Thank you for your
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