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I have a question about division of marital property, can you

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I have a question about division of marital property, can you help?_
Submitted: 7 years ago.Category: Family Law
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10/1/2010
Family Lawyer: ScottyMacEsq, Lawyer replied 7 years ago
ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Family Law
Satisfied Customers: 17,515
Experience: Licensed Texas General Practice Attorney
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ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

What is your question?

Customer :

I am engaged and my fiance is recently divorced (March 2010). She owns a house with her ex-husband and they have been trying to selll it with no luck. She has been paying roughly 40% of the mortgage, based on an agreed-upon formula stated in the divorce.

Customer :

She would like to have her ex-husband buy her out of the house so that she can move forward and not be responsible for paying part of that mortgage anymore.

Customer :

There has to be a process or provisions for doing this, right?

Customer :

she cant be held responsible for paying part of that house forever until it someday sells, right? The ex-husband still lives in the house full time, and she has been living with me for the last year

Customer :

He is making no effort to try to sell the house and is expecting her to still come over and clean up after him whenever there is a potential showing. He has also been rejecting requests for potential buyers to come look at the house until she comes over to clean it.

ScottyMacEsq :

If this is not addressed in the divorce decree, then it is up to them to come to an arrangement as to this matter. But in order for her to have no responsibility, the bank is going to have to agree to release her from the obligation. A court can't affect the underlying obligation between her and the bank.

ScottyMacEsq :

Now does she actually own part of the house still? What does the divorce decree actually say in regards XXXXX XXXXX division of the property?

Customer :

What can she do? We just want to move on and start our own life together and not have a large portion of her income going to a house that she doesnt live in

Customer :

I believe that the divorce states that she is still aprt owner, yes

Customer :

In the decree it states that if the house had not sold by June 30, 2010 they would revisit the agreement and discuss a possible buyout, but that date passed and no revisit occured

Customer :

If the house doesnt ever sell, and they are diovorced the whole time and he is still living there full time can she honestly be expected to keep paying 40% of HIS mortgage forever?

ScottyMacEsq :

Again, the problem is that the divorce decree didn't say anything about who would take ownership, and therefore they still own the house as co-tenants. What that means is that they have a undivided 1/2 interest each in the property. The best that she can do is either have him buy her out or she buy him out. But even in that situation, until the bank either lets the person off the note, or the mortgage is refinanced.

Customer :

He will not agree to buy her out. He doesnt want to. He wants her to keep paying to make her suffer, he has said so. He CAN afford to buy her out but she cant make him. She also does not just want to give up her portion of the house without ANY compensation...we dont know what to do, is law protecting this man who is being unfair?

ScottyMacEsq :

No. But the problem is that at this point, the court has made a final divorce decree, and is not going to address the property issue. That's going to have to be between the parties. Now she can file a motion to enforce, if he is not willing to come to the table about a possible buy-out situation.

ScottyMacEsq :

She can do what's known as a "partition" action, where she can ask the court to sell the property.

Customer :

What would that do?

ScottyMacEsq :

In that, two parties that are co-tenants go to court, and the court orders the sale of the property. This happens at auction.

ScottyMacEsq :

Now the problem with this is it's like a foreclosure, in that it happens at public auction.

ScottyMacEsq :

But it does not have the negative credit impacts.

Customer :

At this point we are willing to do whatever it takes so that she doesnt have to keep paying on it.

ScottyMacEsq :

BUT the problem is that the underlying debt is still going to be there. What is not covered by the proceeds of the sale have to be covered out of pocket.

ScottyMacEsq :

That being said, you need to contact an attorney in your area that deals with real estate (particularly partition) cases. Go to www.lawyers.com or www.legalmatch.com to find an attorney in your area. You should be able to find one that will give you a free initial consultation and better advise you of your rights, any problems with your case, likelihood of success, how courts are treating cases such as yours in your area, and what you should do next.

Customer :

Well, she could at least use that as a bargaining point to convince him to buy her out, right?

ScottyMacEsq :

Exactly. A partition action is going to require a sale, meaning that he's going to be kicked out of the house if he doesn't comply.

Customer :

How does she initiate the partition action if he is unwilling to talk about a buyout?

ScottyMacEsq :

It's a specific lawsuit that is filed with the court where the property is located. It's asking the court to order the sale of the property, which it will do and then distribute the proceeds accordingly.

Customer :

My concern is that they are responsible for whatever they still owe after the house sells at auction. They currently owe $285,000, how low would the court sell the house for at auction?

Customer :

Could they sell it for $10000 and leave them responsible to pay $275000 out of pocket? that is a worse situation!

ScottyMacEsq :

Generally speaking in a situation like this, there is a trustee that is appointed to handle the sale. The court should direct the trustee to not accept less than a certain price. The court can also give the parties an opportunity to buy the other party out, but if this does not happen, it can order the sale.

Customer :

So, would it be resonable to say that her best course of action today would be this: 1) talk to him and come to an agreement for him to buy her out for a fair price. 2) If he refuses, then file a motion to enforce the partition action and force a sale at public auction...

ScottyMacEsq :

Yes, that would be reasonable. Again, the partition action could be used as leverage to get him to agree to buy her out.

Customer :

That is good to know, and kind of what I was hoping to hear. The partition action would force him to vacate the property too, right?

ScottyMacEsq :

Yes, it would, because it would be sold at auction, and the buyer can get him to move out.

Customer :

One last point, just to be clear...there is no way to "force" him to buy her out though, right? Not legally? I just dont want her to have to keep paying for that house anymore. He has lived there alone for a year while she still pays 40% of the mortgage, just doesnt seem fair. I dont want her to give up any potential money either by just having her name removed from the deed and walking away, she shouldnt have to do that just because he wants to make her suffer

ScottyMacEsq :

That's correct... there is no way to force him to buy her out, especially if this is all the divorce decree actually said. If it didn't say that, she could get reimbursed for what she paid into the mortgage, but in this instance, with a court order saying otherwise, she couldn't.

Customer :

I think that is all the questions I have then...sounds like she doesnt have many options, sadly... just wish her ex-husband wasnt such a douchebag.... Thanks for your help. Anything else you can think of for me?

ScottyMacEsq :

Not at this point. The key is to let him know that you're willing to take this to a partition action, and that his interest could be seriously compromised if you do. Other than that, I wish you both good luck!

ScottyMacEsq :

If you have any other questions, please let me know. If not, and you have not yet, please select the "accept" button. Thank you, XXXXX XXXXX good luck to you!

Customer :

Thank YOU!

ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Family Law
Satisfied Customers: 17,515
Experience: Licensed Texas General Practice Attorney
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