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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Family Law
Satisfied Customers: 29788
Experience:  Attorney with experience in family law.
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My divorec stipulates that I have the right to set the sale

Customer Question

My divorec stipulates that I have the right to set the sale price. It also says that either one of us can covert to. Quitclaim deed. I am concerned that my ex will then have the right to sell his half of the property to someone else who will then be able
to force me to sell at a lower price than I want to. Is that a realistic concern?
Submitted: 1 year ago.
Category: Family Law
Expert:  Lucy, Esq. replied 1 year ago.


I'm Lucy, and I'd be happy to answer your questions today.

A third party can never make you sell the property at below market price. If your ex did transfer his share to a third party, and they tried to force a sale, the judge would allow you to have the property appraised and get a realtor who could work toward getting a fair price for the property. If you're concerned because you'd only be willing to sell at above market value, that could be a problem. However, in that scenario, you could ask the judge to order the third party to sell their share to you for whatever price they're trying to sell the house for (at which point, you'd be the sole owner and could later sale at any price where you found a buyer.).

Also, most reasonable people don't want to buy a lawsuit. Most people don't want to own half a house with a stranger. So it would be unusual to find someone who was willing to take half the house and then go to court to force a sale, because that would be really time consuming and expensive for this hypothetical third party. Someone would have to be a good friend or a relative of your ex to even consider it. And if you have evidence that your ex intentionally transferred his share to a third party in order to force you to sell, you could ask a judge to undo the transfer as fraudulent and hold him in contempt of court.

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Customer: replied 1 year ago.
I beleive my ex may already have someone who want the property. This person made an offer a couple years ago that was below what other properties were selling for. And no matter what the appraisal, other properties in the area have sold for competitive prices to what I am willing to accept. the divorce stipulates that I will sell the property and that I will solely determine that sale price.... Why doesn't that prevent him from selling his share? As i have the right to determine the selling price ( why doesn't that transfer to all shares of the house?
Expert:  Lucy, Esq. replied 1 year ago.

Because you also said that either of you can convert your share via quitclaim deed. Is that not what you meant? What does the decree actually say?

Customer: replied 1 year ago.
The decree state that I have the sole right to determine price of sale. And that I am to market the propery. He has signed a handwritten agreement to pay me 6% as the commission for representing the property outside the divorce. In addition the divorce decree also says it can be converted to a quit claim deed. It would seem if he sells his shares to someone else then he violates my ability to represent the house sale and violates my ability to determine the sale price, unless he specifies this to the buyer as a condition of sale. Yes?
Expert:  Lucy, Esq. replied 1 year ago.

What do you mean "it" can be converted to a quitclaim deed? Does the decree EXPLICITLY SAY that either of you can quitclaim your share of the property TO SOMEONE ELSE? Because, honestly, that type of clause wouldn't make any sense when read with the other things you're saying. I'm not trying to be difficult, but the answer here could depend on the wording of the decree, and if you're paraphrasing, you could inadvertently be changing the legal meaning of something.

If all the decree says is that you can use a quitclaim to transfer ownership from joint tenancy to tenants in common, and that you're supposed to sell and set the price, then your fear is unfounded. Your ex would be in contempt of court for transferring his share without consulting with you first and he could be ordered to pay any money that his act caused you to lose.

Customer: replied 1 year ago.
The decree says on request the deed may be converted to a quit claim deed. This was done to permit seperate willing of the shares of the propert. My ex is demanding to do that. I insisted they take the last sentence out. They would not so I insisted the add the statement prese ing the divorce decree rights.... I am wondering why they would not take out the last sentence and what all rights mean in that instance... As well as whether he can now sell his shres and force the sale of the property thru someone else?
Expert:  Lucy, Esq. replied 1 year ago.

No, he can't do that. He can convert the nature of ownership through a quitclaim to allow wiling to someone else, but that wouldn't override the provisions that give you authority over a sale and setting the sales price.

Customer: replied 1 year ago.
Ok so. He really can't sell his shares to someone else as that would over rule the nature of the divorce decree? What other rights am I giving up then? Why did his attorney insist on the last sentence?
Expert:  Lucy, Esq. replied 1 year ago.

You're giving up the right to inherit from him. The last line means that your husband's creditors or yours could take the house to pay debts, which they ordinarily couldn't under Homestead laws. If you're planning to continue living in the house rather than selling it, that last sentence does not benefit you.

Customer: replied 1 year ago.
I am staying in the house. So what you are saying is that if he has accrued debt then his creditor could force the sale of the property?
Customer: replied 1 year ago.
Is he obligated to pay his creditor if he can or can he just let the creditor force the sale?
Expert:  Lucy, Esq. replied 1 year ago.

Yes, a creditor could force a sale if no one had homestead rights in the property. You might be able to take legal action against your ex if he allowed that to happen - but that wouldn't get your house back. A judge could hold him in contempt, but if a creditor foreclosed to pay his debts, they'd be allowed to take the house. They're not bound by the divorce decree.

I cannot think of any reason it would benefit you to agree to waive your homestead rights in the property. Honestly, if you're so worried that he's going to try to pull a fast one on you, you may want to consider whether it would benefit you to simply buy his share so you don't have to worry about him anymore.

Customer: replied 1 year ago.
The property is 1.6 mil.... A lot of my money is tied up in it. I assume I have to give up my homestead rights as part of the deed change"
Customer: replied 1 year ago.
Expert:  Lucy, Esq. replied 1 year ago.

You don't have to give up your homestead rights unless there's something in the divorce decree that says you do, or you've already signed the papers that say you're giving up homestead rights.

Customer: replied 1 year ago.
The divorce specifies : the property shall remain titled to the parties as joint tenants with rights of survivorship. The parties agree that while both are living their ownership f the property will be Me 52% my ex 48% either party may request that the property be transferred to each other as tenants in common by quitclaim deed at any time I the future and each party shall execute such a deed upon written request. ( so is or is not the quit claim deed as tenants in common giving up what rights? Besides willing the shares)
Expert:  Lucy, Esq. replied 1 year ago.

Then you have no legal obligation to give up your homestead rights.

Customer: replied 1 year ago.
Are you sure they are not automatically given up by the change to tenants in common?
Expert:  Lucy, Esq. replied 1 year ago.

Yes. Homestead rights exist whenever a person lives in a property. It doesn't matter how it's titled. Married couples sometimes get additional rights, but you still get basic homestead protection.