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 Ely Your Own Question
Ely
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 101933
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
7286322
Type Your Family Law Question Here...
Ely is online now
A new question is answered every 9 seconds

Family Law - Agreed Decree of Divorce - Homested to Husband

Customer Question

Family Law - Agreed Decree of Divorce - Homested to Husband - Texas
1. What wording should I use in final decree to avoid adverse credit reporting to my credit should my husband not make the mortgage payments (he wants to keep house). 2. Refinance will remove my name, are there other ways to accomplish this in Texas.
3. If he agrees to refinance what timeframe should I give him for refinance?
4. If he cannot qualify, can this also be addressed with a clause that should he not qualify the house must be sold?
5. What documents/forms do I "wife" need to execute releasing any and all claims that I might have against the real property.
This is what I have in my final decree draft.
"husband" agrees to refinance or execute appropriate modifications to the mortgage to remove "wife' from the mortgage and title of the marital real property (described above) relieving "wife" from exposure of adverse credit reporting should "husband" default on such mortgage terms. Such modification or refinance shall be completed within 90 days of execution by the Judge of this Agreed Decree of Divorce.
Submitted: 10 months ago.
Category: Family Law
Expert:  Ely replied 10 months ago.

Hello and welcome to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

When someone receives the home in a divorce, the court cannot 'void' a contract between the divorcees and a third party (the lender). Also, a mortgage situation can have a party in two positions:

1) As a deed-holder (one who holds the interest); and
2) As a mortgagee (one who pays for the mortgage).

Often, the party holds both positions, but, this is not true 100% of the time. For example, a rich uncle wants to spoil his niece and purchases her a home, but, he keeps himself as a the mortgagee but she receives the deed.

Ergo, there are generally two things done in the divorce decree:

1) You would quitclaim the home to him. This essentially gives your interest to him, and;
2) The decree orders him to REFINANCE within a certain amount of time with the lender, to take your name off the mortgage contract.

If B does not refinance in time either due to sloth or inability, then the Court will either (1) give the property to A, (2) sell the home and split the proceeds, or (3) do whatever else the Court feels is equitable (fair). What happens is written into the decree (either by the parties in agreement, or by a Judge at that time or later in an enforcement motion).

So keeping all that in mind:

1. What wording should I use in final decree to avoid adverse credit reporting to my credit should my husband not make the mortgage payments (he wants to keep house).

You cannot do that. The third party can and will report on your credit. The good news is that at least one or two of the three of the credit bureaus (I forget which) will take it off if you dispute it and show a decree that he was supposed to cover it.

2. Refinance will remove my name, are there other ways to accomplish this in Texas.

No.

3. If he agrees to refinance what timeframe should I give him for refinance?

It is up to you, but 6 months is considered the "norm." Sometimes 8 months or a year is given.

4. If he cannot qualify, can this also be addressed with a clause that should he not qualify the house must be sold?

Absolutely. Or, the home can even go back to you.

5. What documents/forms do I "wife" need to execute releasing any and all claims that I might have against the real property.

A general warranty deed. See HERE. NOTE that often a quit claim deed is used, but this is not favored by title insurance companies and a general warranty deed is recommended, instead.

I hope this helps and clarifies. Please use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how experts get credit for our time. Rating my answer the bottom two faces/stars (or failing to submit the rating) does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith with a positive rating.