Brandon M. : Hello there.
Brandon M. : Hello, thank you for your question.
Brandon M. : You said that your ex husband was suppose to move out but never did. Have you all been living in the home since the divorce?
Brandon M. : You said that the house is in your name alone. Just so I understand the situation, is there a mortgage on the home? If so, who's name is XXXXX XXXXX mortgage?
Customer: mine only. But purchased during the marriage and it was both our monies.
Brandon M. : You also said that he won't agree to sell either. Normally, if a home's title is in your name and if the mortgage is in your name, no one else's permission is needed to sell a home. Is there any reason particular to your circumstance why you believe that your ex-husband's consent to sell the home might be necessary for you to effectuate a sale?
Customer: That was my question to you. Despite the fact that its in my name alone the home is ours collectively, does that not matter ?
Customer: basically is there anything he can do to stop the sale of the home?
Brandon M. : Normally, it would not matter at all. But where actual ownership is different than title, my primary interest would be in the language of the divorce decree. You said that you are suppose to live in the home until your youngest turns 18 years of age, and then the home is to sell. I presume that this was pursuant to the decree (please let me know if that is an incorrect assumption). Does the decree specify that your ex-husband needs to give his permission for the home to sell? Does it specifically place any other restrictions on the sale?
Brandon M. : It wouldn't be uncommon, for example, if a decree stated that the house was to be sold, but that both parties would have to agree to the sale price.
Customer: no it says just what I told you I live there with the children until the youngest turns 18 and then we sell. All of this came to pass because I assume he thought if he ignored the divorce all together it couldn't go thru without. His acknowledgment. So he never responded never contested and my lawyer was able to proceed
Brandon M. : Interesting. Well, there are basically two parts to your question. The first is whether an ex-wife can sell the home titled in her name alone over the objection of her ex-husband who shares equity in the home. The second is what options are available to remove the ex-husband from that home against his will....
Brandon M. : Or, alternatively, compelling the ex-husband to voluntarily remove himself from the home...
Customer: preferablyYes compelling him to move would be wonderful
Brandon M. : I should start by saying that because the nuances of every situation are different, this information should not be construed as complete or advice without consulting in person with counsel. That said, the answer to the first question is ordinarily "yes". When a person holds title to real property, they can generally use and dispose of the property to the extent of the title. In other words, if title is in your name, you can ordinarily do whatever you want with it. I say "ordinarily" because there are always exceptions to the general rule. For example, if a court order places limitations on sale of the title, the court-imposed limitations would prevail. Or if the owner has a separate contract with someone else that in some way encumbers the sale, the contract could limit the sale. But where the court orders a marital home to be sold at a certain time (e.g. a child reaching the age of majority), one spouse's equity in the home will not give that party any right to inhibit the sale. Hypothetically, they could sue for any losses that they incurred as a result of a below-market sale price, but they would need a new court order to stop the sale itself.
Customer: okay. So if I understand correctly could I be causing a problem if I'm looking to sell now because my youngest is not 18 yet. He's only 14.
Brandon M. : To answer the second question, when a person occupies a residence, they either have a right to be there or they don't. If they don't have a right to occupy the residence and if they have stated their intent to continue occupying the residence, you can negotiate with that person to leave voluntarily. You can offer them money to move out, for example. However, from a legal perspective, the only question for the law is whether it needs to flex its muscle to remove the person. If someone living in a residence wants to do so against the right to do so, the courts can't make them want to leave, but it can make them leave. This is accomplished through the formal eviction process. This process is available irrespective of whether the residence is to be placed up for sale.
Brandon M. : If the court orders a home to be sold when the couple's youngest child reaches age 18, that is both a right and a restriction.
Customer: So at this point I would have to evict him through the courts.
Brandon M. : It occurred to me that your child may not be 18 yet, but I am glad that you clarified that point.
Brandon M. : Eviction is the sole legal remedy available to compel someone to leave a residence that they are occupying unlawfully. Yes.
Customer: We are still sharing the expense. Can I still file to evict him?
Brandon M. : It sometimes makes sense to bribe the person to leave. The cost of paying someone to leave can be less expensive and faster than an eviction, and it tends to cause fewer hard feelings. But once a person moves out of a residence, whether it is by eviction or willingly, any subsequent re-entry would be treated as a trespass, and law enforcement could arrest the perpetrator without going through an eviction again.
Brandon M. : Do you have any sort of lease agreement with him?
Brandon M. : Where there is no lease agreement, an occupant's sharing of expenses will not be a defense against eviction.
Brandon M. : Has all of this made sense?
Customer: thank you. I will make an attempt at evicting but curious as to why you say it's expensive?
Brandon M. : The filing and court costs are reasonable, but a lot of people find it necessary to hire counsel, and attorney fees make it very expensive very quickly. It's a lot like preparing your own income tax return: some people will always need help, some people can handle any situation on their own, but most people fall somewhere in the middle--they can stumble through it on their own as long as it isn't an overly complex situation.
Customer: Okay thank you.
Brandon M. : You're welcome, and it was my pleasure. Have all of your questions been answered to your full satisfaction? If you would like clarification on anything, please let me know. Thanks.
Customer: Thank you, XXXXX XXXXX very helpful. I'm good.
Brandon M. : Terrific. I wish you the best. Good night.
Customer: Thank you