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P. Simmons
P. Simmons, Lawyer
Category: Real Estate Law
Satisfied Customers: 26525
Experience:  12+ yrs. of experience including real estate law.
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My dissolution of marriage is final, however, we did not address

Customer Question

My dissolution of marriage is final, however, we did not address property (a home that we co-own) issues in our divorce. It has now become a problem so I went back to the Family Law Courthouse and they told me that because it wasn't addressed in the dissolution of marriage, there was nothing they could do legally in regards XXXXX XXXXX property issue. Do you know where this issue should be addressed, is this in a civil court of law versus family law?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  P. Simmons replied 1 year ago.
Thanks for the chance to help. I am an attorney with over 12 years experience. Hopefully I can help you with your legal question.

This is a problem. The purpose of the final decree of divorce is to resolve all property issues.

Can you tell me why this was not addressed? Did you have a lawyer assist you? Did they know about the property?
Customer: replied 1 year ago.


I went to the Self Help Center at the courthouse, a workshop that they offered and they advised me not to include it in the dissolution if we had an agreeemnt, and that's exactly what I had with my ex-husband, an informal agreement that either he or I reside in the house, with the understanding that whoever resides in it pays the mortgage. He hasn't followed through with that and he's vacated the property and now has it listed for rent. I'm still legally bound to the property and I don't want to be held liable for anything that may go wrong with renting it out, and I'd like my name removed from that house/mortgage as well.

Expert:  P. Simmons replied 1 year ago.
Thank you

A few more questions please

1. Are you both on the title AND the loan?

2. Is there equity in the home? If not, how far underwater are you?
Customer: replied 1 year ago.


We are both on the title and loan. There is equity in the home, not much, but it's not underwater.


 

Expert:  P. Simmons replied 1 year ago.
Thank you

Just a moment, I have some thoughts and will type them up...it may take 10 mins or so...
Customer: replied 1 year ago.


Thank you very much, I'm so confused and just need some answers at this point.

Expert:  P. Simmons replied 1 year ago.
That equity gives you leverage...or at least options.

There are two way to proceed...one is more likely to succeed than the other, but will result in the forced sale of the home.

First, you can go to court and request that the court execute a partition sale. Since you own the property, and, more important, since there is some equity in the property, you can force its sale. Specifically, the court will task a real estate company to list and sell the property at market value. Any proceeds from the sale, after paying expenses, will be divided between the two of you.

This will remove the obligation (will satisfy the loan), and take away the obligation and responsibility from you

THe good news about this course of action is it is (relatively) easy

As an owner, the law gives you the right to partition (sell) the property.

You will need to pay a lawyer to prepare and present this to the court.

And there must be equity in the property...you have to make this work based on the value of the home (you can not get a short sale approved this way)

But the process is relatively straightforward, and the legal costs should not be excessive (a few thousand dollars)

Easy (again, relatively)


The other option is to go back to court and attempt to amend the decree of divorce.

This is more difficult both in legal costs (it would take more effort to convince the court to grant this request) as well as likelihood of success. They call it final decree of divorce for a reason. It is tough to get a court to reopen. It was a mistake to not list this property as part of the marital property and have the judge order how it would be divided. But you can try and have the court reopen the case...if you can show mutual mistake (that you both wanted the court to decide this but made a mistake) then it may be the court agrees and reopens. If he contests? Then you will have a tough time convincing the court to agree to this.

BotXXXXX XXXXXne: the best way to go is have a local attorney file a partition suit in county court and sell this home...if there is equity? Then you can do this.

Customer: replied 1 year ago.

I'm due to receive the actual payoff amount on the loan today, so I can then compare the payoff amount to the market value of the home. If there is equity in the home, do you foresee a problem with filing a partition suit in my county to sell the home?


 

Expert:  P. Simmons replied 1 year ago.
You have to file in the county where the home is located. That county has jurisdiction...so if you are in a different county, that is the county where jurisdiction lies.

And yes...so long as there is enough to pay closing costs (figure 6% or so to pay fees and Realtor expenses) you can use partition as a means to extinguish the loan and sell the home.

Customer: replied 1 year ago.
Thank you
Expert:  P. Simmons replied 1 year ago.
You are welcome
P. Simmons, Lawyer
Category: Real Estate Law
Satisfied Customers: 26525
Experience: 12+ yrs. of experience including real estate law.
P. Simmons and 2 other Real Estate Law Specialists are ready to help you
Customer: replied 1 year ago.

If there is no order in regards to property in our dissolution paperwork, do I have a right to enter the residence, he has vacated and the mortgage has not been paid this month.

Expert:  P. Simmons replied 1 year ago.
Of course Ma'am...it is your home! Up until it is sold, or you transfer ownership, you have every right to occupy it.

Customer: replied 1 year ago.

I don't want breaking and entering charges to be pressed against me, as he has threatened me with that. I have not been able to enter the residence since he vacated it last month. If I pay the mortgage, can I live in it?

Customer: replied 1 year ago.

The agreement between him and I was that whoever reside in it, pay the mortgage because the other person would have to pay rent to live somewhere else. And because he didn't want to leave, and I didn't want the children to go through anything more than they had already been through, I left and found a place of my own to rent. He's resided in the property since December 2011, although, he did not pay the mortgage for months, unbeknowst to me. Then he and I went through a hardship assistance program to bring the mortgage back to current so he, nor the kids would have to leave the house. Even though I haven't resided there since December 2011, do I still have the legal right to be there.


 

Expert:  P. Simmons replied 1 year ago.
yes ma'am

You have an absolute right

Your verbal agreement is not binding...the statute of frauds applies. Under the statute of frauds, all contracts involving real property must be in writing...so your oral agreement is of no impact. At all.

SO you can go back and occupy the home. No problem. At all.

His recourse will be to sue to partition the home (sell the home and split the profits)

Customer: replied 1 year ago.

Thank you very much Mr. Simmons, I really appreciate your help. You shed a lot of light in on my situation. This whole process has been very difficult at best without having an attorney to assist. I contacted the local police department in my jurisdiction as well and they told me that I can enter as well, even if I need a locksmith to get in.

Expert:  P. Simmons replied 1 year ago.
Yes ma'am

Best of luck with this fight


Please let me know if you have more questions...happy to assist if I can
Customer: replied 1 year ago.

Good morning Mr. Simmons. I hope all is well. So, I tried to go over to the house and occupy it and that did not go well. The police got involved and they told me that because I haven't been living there, that I have to go to court to file an order to occupy it or file a partition lawsuit. Is there such an order that I can file in the meantime to occupy it while I'm working on the partition piece? Also, I received a call from the respondent this morning that there is an exparte hearing at the Family Law Courthouse regarding the house. I'm just wondering how that could be if the Family Law Court wouldn't hear me when I brought the house issue to them this week. The dissolution is final and the property was never addressed, is that possible for the Family Law Court to be addressing it now after they told me they couldn't?

Expert:  P. Simmons replied 1 year ago.
Ma'am, if the property is in both of your names, and never addressed in the divorce they you are still legally the owner

The police are not required to assist you with this...so if they are telling you that you can not enter, you would need to go to court and obtain an order from the court to grant entry.

Is it possible he filed a motion with the family court? Sure...that is possible.

Regardless, it sounds like it is time to get a lawyer to represent you on this.
Customer: replied 1 year ago.

Do I go to civil court for the order to grant entry? How could he file a motion regarding the house in family law if property was never addressed in the divorce? When I filed for divorce, property was never included, he didn't respond to any of the paperwork he received, then it went into default, then the judgment for dissolution was entered. I'm confused as to how he would be able to address the house with Family Law and not civilly.

Expert:  P. Simmons replied 1 year ago.
Ma'am you need a local attorney now.

It is as I explained earlier in my answer...there are two ways to address this

1. With a partition (in civil court)

2. With a modification of the divorce decree (family court)

It sounds like he is going route #2.

You can go to civil court to request an order of entry...but frankly, if he is filing in family court, you may want to address that first, since the civil court will defer until the family court rules on this.

Customer: replied 1 year ago.
I have an exparte hearing this morning, I was told it regarding the house of course. If this property was listed as an asset or debt, and the divorce was uncontested, can the judge order in his favor of having it, even though I'm on the title and loan?
Customer: replied 1 year ago.
I meant not listed as an asset or debt
Expert:  P. Simmons replied 1 year ago.
Yes...the court has the power to order you release your interests in the title. The court has that power. So if the goal is to contest this, you may want to have a local attorney assist you with the hearing.

Customer: replied 1 year ago.
I want off the title and loan, that's been my whole issue because I don't want to be obligated to the loan, title, house, etc. I just didn't want him renting it out with my name attached to it and I don't want my credit to suffer if he decides not to pay the mortgage.
Expert:  P. Simmons replied 1 year ago.
Then when you go in front of the judge, ask the judge to order he refi the loan so you are removed from it. That is a reasonable request I would expect the court to grant

Customer: replied 1 year ago.

I sent a question this morning, just want to make sure you received it.


 


Thank You

Expert:  P. Simmons replied 1 year ago.
Sorry Ma'am...I have not...it may be because you are asking in this same thread. It would be better if you would open up a new thread on this matter to ask a new question

Customer: replied 1 year ago.

How do you start a new thread?

Expert:  P. Simmons replied 1 year ago.
Ma'am you would simply ask a new question through Just Answer.
Customer: replied 1 year ago.

I attended the exparte hearing on Friday, nothing resulted from that and the ex and I have another court date scheduled for August 5th, regarding the house of course. My ex is in no position to refinance the house. He has sent me 2 propositions since the hearing: the first one being that he would like me to do a quick claim deed, in which I immediately responded no to. The second was that he would like me to give him sole control of selling the home and that I get nothing from the sale. A little bit of background, I moved out of the marital home in December 2011, with the understanding that whoever live in it (himself), pay the mortgage. He failed to pay the mortgage for a period of 7 months in 2012 and the house went into foreclosure status. I then worked with him and went through a Hardship Assistance Program to save the home, which resulted in a silent second mortgage of $14,907. I only did this to keep the continuity for the kids. In June 2013, he vacated the property and posted it for rent. I went over to the property last week, with a locksmith, so I could occupy the property, which didn't go well. The police were called and we were both asked to leave until this is handled in court. Is it reasonable for me to ask the judge on August 5th that he order the house to be put up for sale and that the profits be split evenly between the 2 of us. I also wanted to ask the judge that a neutral party be assigned to selling the property.

Expert:  P. Simmons replied 1 year ago.
Ma'am that is reasonable...but you will want to have a local attorney do this for you. You will need to file a motion with the court to make this request...do do that you need to use a local attorney to file and present the motion

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