Served Motion to Sell Home - Help with next steps

[helpfordad]

Without rambling too much, I am looking for advice for my Dad Re: Matrimonial Home.

My parents separated in 2001 (married approx. 26 years), agreed to a separation agreement in 2002/2003 (he can't remember & cant' find agreement) . Where my Dad was given interm possession of the house (which was appraised & valued then) custody of my youngest brother (15 at the time) and order to pay SS of 1200/month. Nothing else has been done. She was court ordered to stay away from the house at one time due to abuse towards my Dad.

On Friday, my Mom served Dad with a Form 14 to have the house assessed & sold. She wants her 1/2 of the house.
We (myself, hubby, two kids) live in the house with my Dad & have since 2003 (moved back home & what was to be temporary has turned into us all living together.)
I won't go into all the random stuff she put in her affidavit, most of it untrue, though I see from reading on here that is not uncommon. (unless info is needed)....

Basically my question is what happens now? He has to reply to the Form 14? Court date is the 19th...what happens at that?

It's been so many years...he's almost paid off the house now (only a year left to renew mortgage...which he's done since she's left)

We are going (today) to see if Dad can get a new lawyer as his lawyer long left our town. He wants to keep the house, he's not necessarily against buying her out...but also just wants the divorse finalized....Do we just deal with the house? Does he offer a Offer to Settle and offer to buy her out & deal with the divorce separate? I would assume from reading that it would be the value of home at separation minus what was owing?? Would that still hold true after all these years? Is there a limit in time? Can she force the sale?

Dad has offered to sell us the house (on many occasions that is one of many reasons why we are still here - ) though we are not wanting to deal with my mother (she had offered to sell it to us at one point, then she had another manic episode & is no longer speaking to me) We have told him to get divorce finalized & buy her out of house so we would only be dealing with him.

Thanks for any advice

[HammerDad]

If the house was valued at the date of separation, he should make her an offer to buy her out at 1/2 of the equity as of that date, so the 2001 or whatever date.

Unless she continued to contribute to the mortgage and maintenance, she shouldn't be entitled to make any claim to an increase in value/equity from the date she stopped paying for the house.

[helpfordad]

Thank you for the reply...that is what he has decided to do.
In one of the points of her affidivate, she mentioned that she wanted 1/2 value or house sold......so we came to that realization that to agree to offer to buy her out, would be the best course of action. The divorse itself can be dealt with then later (SS will be a challenge for sure)

We are on our way back to court house soon with his response to her affidaviat. Does him responding to agree to give her 1/2 of equity of that date just go on response or do we have to file a counter motion etc...I will ask that at court house, but thought I would ask here first.

Obtaining a lawyer today did not happen as we had hoped. Most wanted 3000-4500 retainer (now)....which he doesn't have....so we are unsure if the court date will come and he will not have council.

Though I guess if she accepts, court may be avoided???

[HammerDad]

Before filing in court, I would forward her and her lawyer offers to settle at 1/2 of the equity as at the valuation/separation date. And know that equity means value of the house minus existing mortgage, and possibly, minus costs associated for realtor fees).

So if the house was valued at $280k in 2001, and the remaining mortgage was $100k, she would be entitled to $90k (and possibly less if one figures in her 1/2 of the realtor fees associated with any sale).

If she refuses your offers, then you file your reply in court to pay the exact same amount as your offer, which is reasonable.

[helpfordad]

She doesn't have a lawyer. My mom is bipolar, though she'd deny she is, it is one of the reasons this has gone on so long.

We should have waited for your response. My Dad filed the response (as she is the one who filed the Motion) with the answer to her point about wanting her money, that he was willing to pay 1/2 value at separation. Court date is the 19th, so not sure he would have been able to wait to offer her anything & then file response in time. Also not sure if she would have been willing to listen to anything as she has periodically over the years wanted him to sell the house & give her 1/2 what she thinks it is worth now. (based on houses in the area)

We did get to see the file they had there at the court house. It was pretty thick...The financial statement was there though & the house was valued at 75,000 (separation date was March 2002) ...the next number that I noticed was the Net Family Value was 44,000 ... so does that number mean that she is entitled to 22,000??
The house is not worth much more than that now, as Dad has kept it up ok & we've done some stuff, but nothing too big, as it was always in the air what was happening with it.

Minus realtor fees? To buy her out would the house still need to be listed? Or just the Realtor fees to have the title transfered?
Court date will be interesting for sure....hard to say what she'll do.
Thanks again for the advise

[Teenwolf]

Originally Posted by helpfordad

Minus realtor fees? To buy her out would the house still need to be listed? Or just the Realtor fees to have the title transfered?

The house doesn't need to be listed. The courts will hypothetically consider the buy out amount as if the house were sold. If it were sold, the net equity would be determined by substracting the mortgage balance and the cost of selling the house. They will do the same to calculate the buy out amount. For the hypothetical sale, I believe courts typically use a 5% real estate fee.

Real estate agents don't deal with title transfer; a lawyer would have to do that. I'm not sure if the court will factor in legal fees, but I would ask for it. Seems fair to me.

[helpfordad]

Thank you...I meant Real Estate Lawyer when I put agent.
I will let my Dad know to maybe factor in 1/2 the cost of that, to come off what he would pay her.
He will hopefully have the retainer for lawyer & see her the day before he goes to court to hear motion. I assume he does not necessarily need a lawyer to hear this motion since he is agreeing to pay her what she was owed.
Lady at the court house was confused that a motion was brought forth on such an "old" case....it was a bit weird to see them confused.

[HammerDad]

Just because they are in court doesn't mean he can't make reasonable offers to settle with her. In reality, if he makes reasonable offers to settle (effectively 1/2 the equity at the time of separation minus her half of realtor fees), it looks better on him and may be a factor in determining whether or not he (or she if he doesn't make an offer) are awarded costs (meaning out of pocket expenses for the action).

[Teenwolf]

Agree with HammerDad. Get your father to figure out the net equity by subtracting the mortgage balance, real estate cost and property lawyer fees (all based on figures from the date of separation) and offer her half. It's fair and it doesn't have to be done in court. She may argue that she shouldn't have to absorb any of the real estate or lawyer fees, but that's the reality of liquidating a house. In my opinion, if she wants to liquidate her 50% share, then she needs to absorb 50% of the costs associated with liquidating it.

[Rioe]

Originally Posted by helpfordad

Lady at the court house was confused that a motion was brought forth on such an "old" case....it was a bit weird to see them confused.

I seem to recall seeing something that said there was a limit of 6 years for property settlement or something like that? Or the property was considered abandoned? Wish I could remember more details, but something like that may be why the court clerks don't see this come up and aren't sure what to do.