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socrateaser, Lawyer
Category: Real Estate Law
Satisfied Customers: 38898
Experience:  Attorney and Real Estate broker -- Retired (mostly)
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My ex-husband and I are divorced and the MSA was finalized

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My ex-husband and I are divorced and the MSA was finalized in 2010. The family house was underwater during the housing bubble/financial crises. There was NO equity in the house, so this was not listed in the MSA. We have mutually agreed that I can have the family house. I have been living in the house and making the mortgage payments out of my sole and separate bank account. He moved out and did not make any payments. My ex-husband executed a quit claim deed. I’m the only person on the title/deed. However, his name is XXXXX XXXXX the mortgage note. Now, there is some equity in the house, can my ex-husband claim ownership interest on the property even though he signed a quit claim deed? If he owes money to his friends and creditors, can they claim my property? Where does California real estate law stand on this issue?

Under California family law, any community property not divided during the dissolution is considered "omitted property." Either spouse can return to court at any time for a supplemental order from the court finally dividing the property.

Ordinarily, spouses have a fiduciary duty to each other and neither can gain an unfair advantage over the other prior to the final judgment of dissolution -- or the court will rescind any transaction where an unfair advantage was obtained.

After dissolution, however, the fiduciary duty is terminated with the judgment of dissolution. So, if the quitclaim was signed after the dissolution, the court would almost certainly enforce it against your ex-spouse, and he would be unable to claim any value from the property.

That said, there is no case law or statute which absolutely disposes of this particular question. It's actually quite a novel question of family law. I'm pretty certain that my answer is correct, but I cannot say it for an absolute certainty, because no appellate court has ruled on a similar set of facts (to my knowledge).

The presumption, at this point, however, is that your title is valid, and your ex would have to overcome that presumption by clear and convincing (overwhelming) evidence that he was deceived into transferring title to you. Evidence Code 662.

Hope this helps.
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Customer: replied 4 years ago.

What about my ex-husband's creditors, can they claim my property?

The lender can reach the property, because it has a deed of trust. Other creditors cannot, unless they can prove that your husband transferred the property to you for less than reasonably equivalent value at the date of transfer. This is called a fraudulent transfer, under California law.

However, if the property was worth zero over loan value on the date of transfer, and you paid nothing for it, then it would be impossible to prove that it was transferred for less than reasonably equivalent value -- which means there was no fraud.

Based upon your described facts, your husband's creditors cannot reach this property.

Hope this helps.

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