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Divorce was filed and the husband and wife decide to transfer

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property from one spouse to...
Divorce was filed and the husband and wife decide to transfer property from one spouse to both spouses for purpose of selling. A warranty deed was used to transfer land and house from one spouse to both spouses. Can this deed be challenged later?
Submitted: 9 years ago.Category: Family Law
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11/2/2008
Family Lawyer: Ellen, Lawyer replied 9 years ago
Ellen
Ellen, Lawyer
Category: Family Law
Satisfied Customers: 36,714
Experience: 25 years of experience helping people like you.
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Hello,

Thank you for your question.

Please tell me:
1. Are the spouses seeking a NM divorce?
2. Does the deed state that the property is separate property?
3. Were the spouses legally separated?
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Customer reply replied 9 years ago

Divorce was filed in New Mexico but no further action was taken beyond the initial filing. Divorce was filed on July 3, 2008 and no further action was requested by either spouse since.

 

 

The new warranty deed states joint tenancy with survivorship from wife transfered to wife and husband. The deed was signed on Oct 25th and recorded with the county clerks office.

 

 

The spouses had not filed for separation but were living in separate residences. Wife moved out of marital residence on July 2, 2008 and moved in with another man. She resided with this man until approx Oct 10th when he was arrested for domestic violence against her. She has since been living in Las Cruces with friends. Husband has been living on the property that was transfered in the deed. Husband and wife lived on the property in question for over 10 years as husband and wife.

 

Husband and wife decided to sell all real property as part of the divorce.( Decided between spouses verbally) Property was transfered so it could be listed under both spouses names and proceeds to be divided equally. Wife is now refusing to list property. Can she now say the deed is not valid? ie " I transfered the property because I thought we were gonna work things out, but now that things are'nt going to work out I want the property back".

 

Note: The deed was prepared at wifes request. Signed, notorized, and registered with the county clerk.

Family Lawyer: Ellen, Lawyer replied 9 years ago

Hello,


Thank you for your question. I am happy to assist you.


The property would be considered community property. It was community property before it was transferred to joint names and remains community property after being transferred to both names.

All property acquired during marriage and before legal separation, other than by gift or inheritance is presumptively community property.

Property acquired during marriage by gift or inheritance is the acquiring spouse's separate property.

The goal of the court is to confirm separate property to the owner of that property and to evenly divide community property.

 


I hope that I have fully answered your question and the answer was helpful to you.


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Customer reply replied 9 years ago

The property in question was an inheritance in 1991 to the wife from her father. The property was titled to the wife since 1998 and both the husband and wife lived on the property since 1998.

 

The property was then transfered from the wife to the wife and husband on Oct 25 2008 for the purpose of selling and dividing the proceeds. Can the wife have the deed reversed and if so on what grounds?

 

The wife had a lawyer prepare the Warranty Deed and had possession on the deed for approx 1 week prior to signing. The husband was not present during any communications between the lawyer and wife.

Does the deed give the husband an unfair advantage over the wife since it divides the property equally? If undue influence is claimed by the wife is it valid ?

Family Lawyer: Ellen, Lawyer replied 9 years ago

The property was then transfered from the wife to the wife and husband on Oct 25 2008 for the purpose of selling and dividing the proceeds. Can the wife have the deed reversed and if so on what grounds?

I do not see legal grounds to void the deed.

The wife had a lawyer prepare the Warranty Deed and had possession on the deed for approx 1 week prior to signing. The husband was not present during any communications between the lawyer and wife.

Does the deed give the husband an unfair advantage over the wife since it divides the property equally? If undue influence is claimed by the wife is it valid
Since the wife was represented by a lawyer, typically a claim of unfair advantage/undue influence would not be sucessful.

Thank you,
FLAandNYLAWYER


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Ellen
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