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legalgems
legalgems, Lawyer
Category: Legal
Satisfied Customers: 10484
Experience:  Just Answer consultant at Self employed
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My husband and 1st wife bought house in 2006. Sep/Divorced

Customer Question

HI My husband and 1st wife bought house in 2006. Sep/Divorced in 2008 and in decree it says when home is sold she gets 25% of net proceeds. I have lived in home with my husband since 2011. We are selling it. We have invested thousands of dollars of "our" money to get it ready for sale. 1st question: Can we deduct the improvements we made from "net proceeds" before giving her the 25%? if not 2nd question: Can we get decree modified to adjust her percentage based on what was owed on the home at the time of the divorce so she got 25% of the difference between sale price and how much was owed on the home in 2008 vs how much is left on the loan today?
JA: Because real estate law varies from place to place, can you tell me what state this is in?
Customer: New York
JA: Has anything been filed or reported?
Customer: no
JA: Anything else you want the lawyer to know before I connect you?
Customer: no
Submitted: 3 months ago.
Category: Legal
Expert:  legalgems replied 3 months ago.

Hello! I will be reviewing your question and posting a response momentarily; if you have any follow up questions please respond here. Thanks!

Expert:  legalgems replied 3 months ago.

I am sorry to hear there is this confusion;

can you tell me if the decree stated a valuation date for the home-or was it a generic date of sale?

Customer: replied 3 months ago.
it says "if the home is sold before the daugher's 18th birthday, then she gets 25% of net proceeds." The daughter is 14.
Customer: replied 3 months ago.
Here is the paragraph from the decree about this issue.
Expert:  legalgems replied 3 months ago.

That is highly unusual.

Normally the court only has authority to divide marital property; and marital property is contributions made during marriage (ie home purchases and mortgage payments, plus appreciation due to that). So that seems to be a round a bout way of assigning post marital appreciation (on even the separate property contributions) to the previous marriage.

The decree would be enforced as written, unless there is an amendment; one would need to petition the court for clarification, or to amend the decree based on the inequitable result of the prior spouse receiving post marital property.
This is highly unusual language so it would be best to hire an attorney to prepare the request so they can prepare a legal brief in support of the position because normally a decree needs to be challenged within 6-12 months of entry; so the time issue may be a concern unless the attorney can convince the judge that a reasonable person would not have been aware of the issue.

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