How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Samuel II Your Own Question
Samuel II
Samuel II, Attorney at Law
Category: Family Law
Satisfied Customers: 27009
Experience:  General practice of law with emphasis in family law.
10707909
Type Your Family Law Question Here...
Samuel II is online now
A new question is answered every 9 seconds

10 years ago we (divorced couple) refinanced our marital

Customer Question

10 years ago we (divorced couple) refinanced our marital home so I could purchase another home. she got money and I got money but not equal, I got more. when the market crashed I lost my new home to foreclosure and have been renting ever since. She who occupies the marital home did not pay the mortgage or maintain the home for 5 years. when I found out about the house in foreclosure I hired an attorney and applied for a loan modification to save the house. the mortgage after the modification is higher due to the arrearages added to the new mortgage. she did not maintain the house for over 10 years and is in need of total rehab. the house has approx. $75,000 negative equity and needs about $50,000 of rehab work for a total of $125,000 negative equity. I have been paying the modified loan for over a year now.... she subsequently doesn't want to pay for the house in negative equity and moved out. what are my rights to the house and she does not want to sign a quitclaim on it.
Submitted: 10 months ago.
Category: Family Law
Expert:  Samuel II replied 10 months ago.

Hello

This is Samuel and I will discuss this and provide you information in this regard.

Please clarify for me - at the time of the divorce and she was awarded the marital home was there a deed granting her sole title? In other words, did you sign off and is the home now in her name only?

Expert:  Samuel II replied 10 months ago.

Or does it still remain in both names?

Customer: replied 10 months ago.
in the divorce it only stated that she would occupy the home and pay the mortgage. at the time there were 3 children under the age of 18. now all the children have been emancipated for years.
Expert:  Samuel II replied 10 months ago.

Thank you. So your name is ***** ***** the Deed? And it is no longer in foreclosure? Is that correct? You brought the loan up to date?

Customer: replied 10 months ago.
no longer in foreclosure... my name is ***** ***** one on the mortgage and the mortgage is up to date with no deficiencies for over a year and a half.
Expert:  Samuel II replied 10 months ago.

I suggest you will want to consider filing a Motion to ReOpen the Divorce Judgment as it pertains to the marital home. You need to have the court order her to sign the quit claim deed. It appears you have the evidence that you have saved the home and have taken the responsibility of the same. And you should not be penalized at the time of sale of the home.

The other option is to reopen and have the court order a Partition for Sale and then you get all that you have put into the home if there is enough equity and the sale price allows for you to recoup your investment.

I suggest that you might want to consult with a local family law attorney who specializes in real estate marital property claims.

Expert:  Samuel II replied 10 months ago.

The court will need to order her to sign it over to you. And to do that you need to reopen the judgment of the divorce.

Customer: replied 10 months ago.
do I have a right at the present time to occupy the residence since she moved out? can I legally change the locks since she abandoned the home?
Customer: replied 10 months ago.
The other option is to reopen and have the court order a Partition for Sale and then you get all that you have put into the home if there is enough equity and the sale price allows for you to recoup your investment. did you read my 1st statement that the home is in negative equity of $75,000 and needing $50k in rehab work?I suggest that you might want to consult with a local family law attorney who specializes in real estate marital property claims I could of thought of this on my own.... I was looking for real advice on how to handle her and the home without getting back into expensive court proceedings....
Expert:  Samuel II replied 10 months ago.

Thank you

I suggest you can live there if you are still on the Deed. Changing the locks is not recommended. Because she is also on the Deed and was award the home in the divorce.

Yes, I read that. I just wanted to cover all options should there come a point when the equity is there. I always provide as many avenues as possible.

Expert:  Samuel II replied 10 months ago.

Some avenues may work and others may not. But I provide as many as possible.

Back to changing the locks, I cannot tell you you can because she is on the Deed and was awarded the property. I suggest however, if she has left the home for a year or more, then you can change those locks.

Customer: replied 10 months ago.
if she abandoned the house I don't have the right to change the locks and protect my investment? just because she was awarded the home does she have the right to abandon and any damages or so come to my expense? the homeowners insurance also doesn't cover for non-occupied homes?
Expert:  Samuel II replied 10 months ago.

If she has written you that she is leaving never to return or if she has left for at least a year, you can change the locks.

She was awarded the property and you got something in exchange. The property is hers, she can do what she wants with it. But because you have rescued it from the foreclosure, you should be able to reopen the judgment and have the court order her to sign it over to you.

Expert:  Samuel II replied 10 months ago.

I suggest you can occupy the home. But changing the locks is something else. If you want to change them go ahead. The worst that can happen is she breaks in and has new locks put on.

Customer: replied 10 months ago.
what do I do about the paying the mortgage? if she does not occupy the home and I rescued it from foreclosure she still has the right to own it and not pay for it?
in the early stages of the divorce she was awarded the family car.. an new crown Victoria and she was to pay for the car. she did not pay for the car, let it get repossessed and after the 10 day waiting period on which to rectify and get the car back she filed a court proceeding to have me supply her with a car. that was denied.... this is like the same thing all over again but now she has damaged my credit incredibly.
Customer: replied 10 months ago.
she can break into the house? I can't occupy the house with my wife and 2 daughters and she has the right to break in?
Expert:  Samuel II replied 10 months ago.

She owns the home. Yes.

Expert:  Samuel II replied 10 months ago.

The only way you can live there without interference is if you get the court to order her to sign the Deed over to you.

Expert:  Samuel II replied 10 months ago.

I understand your situation and it is a situation that can be handled with filing the Motion to Reopen and have the court order her out and sign the deed.

Expert:  Samuel II replied 10 months ago.

As to her damaging your credit, I am sorry to hear she was so irresponsible. But it does give you more credence for the court to rule in your favor.

Customer: replied 10 months ago.
can this be done through mediation? can any of this backfire on me? I don't want to get into lengthy court battles and attorneys fees, can't afford it.
what scenarios can I offer her, saving her money, to sign without going to court?
Customer: replied 10 months ago.
what I don't want to get into is a situation that the court rules to fix up the property and then sell it. I have paid over $25k in fees and mortgage since the modification and then have to sink $50k to sell it? I would never see a nickel back and would be stuck with the excess.
Customer: replied 10 months ago.
not to mention she saved $50 to $60k in not paying the mortgage for 5 years and now that is added to it in the modification which I have to pay.
Expert:  Samuel II replied 10 months ago.

You can try mediation. But I suggest it could backfire. You can offer her anything that you feel would be an enticement. I was going to suggest you offer her some money for her signature, but you have invested so much and she has taken advantage and been so irresponsible that I did not feel you would want to "buy" her signature. Yes, you certainly make her an offer for her signature and discuss with her what she would agree to.

And yes, as I said the court could order the partition of sale. If you have a certain amount in mind that she might be amenable to and you want to make her that offer, I suggest you consider doing it via a mediator. The mediator cannot make any orders and so if the mediation does not work out, then you can go to court.

I fully understand your situation and why you are so sore and frustrated.

Expert:  Samuel II replied 10 months ago.

At this juncture, because she is still on the Deed, she can petition the court to order a sale, if she wanted to.

Customer: replied 10 months ago.
but has the court ever ordered a sale with negative equity? I couldn't even qualify for a short sale as I have been current for so long.... if the court orders a sale do I get stuck with the balance of the mortgage and she gets off free and clear? if the court orders a sale do I let it go to foreclosure as the comps will never work and no one will over pay that much?
Expert:  Samuel II replied 10 months ago.

I suggest the court would be more inclined to rule in your favor to force her to sign the Deed to you.

Customer: replied 10 months ago.
if I did offer to pay for her signature.... what would be a fair offer?
Expert:  Samuel II replied 10 months ago.

Good Lord. I have no idea. She has behaved so poorly and I never like to reward poor behavior. That is something you need to decide and this could be where a mediator might be helpful. So you can go to a mediator with an offer in mind - leave some wiggle room - for instance if your top offer is $5,000 - then offer $2000 and let the negotiations begin.

Expert:  Samuel II replied 10 months ago.

You have already given so much. I suggest she deserves nothing. But you need to get her to sign the Deed to you.

Customer: replied 10 months ago.
ok, I am going to let some of this sink in and I will get back to you....
Expert:  Samuel II replied 10 months ago.

What you are seeking in your Motion to Reopen is Ancillary Relief. The matter is too old to bring a contempt.

Thank you for the opportunity to assist. You can provide a positive rating and still come back to this question at any time. Your positive rating is how I get credit for my time and information provided.

Customer: replied 10 months ago.
Ancillary Relief? what is that? what is too old to bring a contempt?
Expert:  Samuel II replied 10 months ago.

Ancillary Relief is the reason for the reopening of the judgment. You need the court to intervene because she did not do what was ordered originally and you need to court to change the judgment in your favor. The judgment is too old to bring a contempt. You said it was 10 years ago. And in a contempt the court is not going to make a new decision. You need to have the matter reopened if you cannot get her to an agreement.