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socrateaser
socrateaser, Lawyer
Category: Family Law
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Please can you explain the rights of the parties in the following

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Please can you explain the rights of the parties in the following court approved Divorce Agreement. Please also note, the mortgage lein on this property is in the Husband's name alone.

Under Division of Proprty, section 1 and 2. read:
"1. The Parties own a home located at XXX, Massachusetts. The home is in the Husband's name alone. The home shall be placed on the market forthwith and any proceeds from said sale, after taxes, closing costs, brokers' fees and any other expenses associated with the sale of the property, shall be divided equally by the Parties."

"2. The Husband shall execute a deed converying all his right title and interest in the home in a fee simple subject to all encumbrances of record which the Wife assumes and agrees to pay. The Wife further agrees to indemnify the Husband and hold him harmless from all encumberances and further from all costs associated with ownership and use and occupancy of the home as of this date."
Under Division of Property, section 1 and 2. read:

1. The Parties own a home located at XXX, Massachusetts. The home is in the Husband's name alone. The home shall be placed on the market forthwith and any proceeds from said sale, after taxes, closing costs, brokers' fees and any other expenses associated with the sale of the property, shall be divided equally by the Parties.

A: The court has ordered the property placed on the market immediately, and the proceeds divided equally between the divorcing parties. However, the order fails to provide terms what sort of deadline for sale or price the husband must accept. Given these defects, husband could list the property for an unreasonably high price or simply reject each and every offer, and thereby never sell -- without being in contempt of the order, because the order is not clear enough to be enforced.

2. The Husband shall execute a deed converying all his right title and interest in the home in a fee simple subject to all encumbrances of record which the Wife assumes and agrees to pay. The Wife further agrees to indemnify the Husband and hold him harmless from all encumbrances and further from all costs associated with ownership and use and occupancy of the home as of this date."

A: This order requires that husband convey the property, but it fails to state to whom the property is to be conveyed. It seems as though it would be the wife, but that is not what the order states. In my view, the order is entirely defective, without designation of a grantee. Assuming that the wife is the grantee, the order requires the wife to protect husband from any later liability. However, this sort of language always fails to acknowledge the fact that if there is a lender, that lender has no obligation to follow the orders. Consequently, the lender can try to recover from husband for failing to pay a mortgage, if wife does not pay. This also causes damage to husband's credit report.

My experience is that such orders almost always fail, because the party granted the home can't pay the mortgage on his/her own, and the result is that both former husband and wife are damaged -- frequently, resulting in each having to file for bankruptcy protection in order to avoid a deficiency judgment.

Please let me know if my answer is helpful to you. The website has been experiencing system failures lately -- consequently many customers are not receiving my answers.

Thanks again.


Customer: replied 4 years ago.

Thank you for your response, for your observations and insights. While I am not a legal professional, but have worked closely with several in the past, you have quickly and conscicely highlighted and confirmed the major concerns I had with this agseement.


 


Would you have any recommendations for the Husband in this case, since it is in his interest I am inquiring?


 


I appreciate your outstanding overview, and this will clear many questions.


 


Kind Regards,


Kathie


 

Without knowing the parties' financial circumstances, it's difficult to provide a competent answer.

I would try to write a settlement agreement whereby the property must be sold in no more than 90 days, to the highest qualified buyer -- even if it means lowering the price substantially to effect the sale. A divorce where property is not distributed quickly and all debts disposed of, leaves the parties in a state of uncertainty -- and that's not really a divorce, because they remain connected by the unresolved issues.

Hope this helps.
Customer: replied 4 years ago.

Thank you for this response and suggestions. I completely agree that the current Divorce Agreeement is insubstantial in completing the divorce transaction with any finality. I do believe it was a step towards a complete separation in a situation where one party was completely unreasonable, and continued to stall important decisions. Again I agree the language I see here does not appear to directly defined by any logical parameters, dates, etc, and thus may be very difficult to enforce. Of note, is that bankruptcy has been considered as a means of executing the closure of the mattter of real estate, considering the credit of the Husband has been adversly affected by the non-payment and slow payment of the Wife.


 


One last questions, if I may. The title to the real estate, was transferred from the Husband to the Wife. What rights and liabilities does this transfer grant the current title holder, and what exposure does the former title holder have? I suspect, you may have covered/alluded to this in the following response you provided above. If I understand this statement correctly, would you consider self imposed bankruptcy to be a resolution for the closure on this transaction for the Husband? Your assumptions about the Wife's ability to pay the mortgage are indeed correct.


 


" However, this sort of language always fails to acknowledge the fact that if there is a lender, that lender has no obligation to follow the orders. Consequently, the lender can try to recover from husband for failing to pay a mortgage, if wife does not pay. This also causes damage to husband's credit report. "


Many thanks, KC

Husband cannot obtain contempt order against wife, because inability to pay/comply with the court orders is an affirmative defense to the contempt action.

The old saying, "You can't get blood from a stone," applies. Husband could offer to purchase the property back from wife, if doing so would permit him to make payments and either rent, sell or refinance the property. This would require wife's cooperation, which is typically nowhere to be found (if the parties could cooperate, they wouldn't be divorced).

Assuming that nothing like the above can be accomplished, then bankruptcy is probably the only way out.

Hope this helps.
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