Under Division of Property, section 1 and 2. read:
1. The Parties own a home located at XXX, Massachusetts. The home is in the Husband's name alone. The home shall be placed on the market forthwith and any proceeds from said sale, after taxes, closing costs, brokers' fees and any other expenses associated with the sale of the property, shall be divided equally by the Parties.
A: The court has ordered the property placed on the market immediately, and the proceeds divided equally between the divorcing parties. However, the order fails to provide terms what sort of deadline for sale or price the husband must accept. Given these defects, husband could list the property for an unreasonably high price or simply reject each and every offer, and thereby never sell -- without being in contempt of the order, because the order is not clear enough to be enforced.2. The Husband shall execute a deed converying all his right title and interest in the home in a fee simple subject to all encumbrances of record which the Wife assumes and agrees to pay. The Wife further agrees to indemnify the Husband and hold him harmless from all encumbrances and further from all costs associated with ownership and use and occupancy of the home as of this date."
A: This order requires that husband convey the property, but it fails to state to whom the property is to be conveyed. It seems as though it would be the wife, but that is not what the order states. In my view, the order is entirely defective, without designation of a grantee. Assuming that the wife is the grantee, the order requires the wife to protect husband from any later liability. However, this sort of language always fails to acknowledge the fact that if there is a lender, that lender has no obligation to follow the orders. Consequently, the lender can try to recover from husband for failing to pay a mortgage, if wife does not pay. This also causes damage to husband's credit report.
My experience is that such orders almost always fail, because the party granted the home can't pay the mortgage on his/her own, and the result is that both former husband and wife are damaged -- frequently, resulting in each having to file for bankruptcy protection in order to avoid a deficiency judgment.
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