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Northern Phoenix · #1 04-02-2014, 12:06 PM

20 months into separation, 4 court appearances and still no separation agreement. Divorce motion was severed and awaiting Judges signature which should be any day! STBX has not paid on mortgage for almost a year and when he quit paying the mortgage it was still more than the two estimated valuations done on the property at his request.
Our court case has now been dismissed from superior court due to inactivity as He fired his lawyer after accumulation $50,000.00 in fees that achieved absolutely NOTHING. I was always self represented ( and successful at winning all my motions and costs awarded to me as a self represented litigant).
So here is the question: Do I refile a court case and file motion to remove him from title of home(is that the only way to get him off title?) or can I prepare (through real estate lawyer) documents to serve him with to get him to sign off title by transfer without court? Do I need a separation agreement or can I just do the transfer of title? Once he stops paying on the mortgage doesn't that mean he no longer has claim to any equity in home from that date forward?
I think he will transfer title voluntarily as he knows he has no financial claim to property as there is zero equity in the home especially since the home inspection valuations showed a lower value than the mortgage.
When you buy a home you don't need any other documents so I am thinking that I can serve him the transfer documents with the hopes he signs the home over to me. I have the kids and the mortgage payments are in good standing. He hasn't paid a dime in the last year....and when he did pay he only paid mortgage until house assessment came in under the value of the mortgage.

FB_ · #2 04-02-2014, 12:10 PM

I don't believe you can get an order to remove a name from a house.

You have to do one of two things.

1. Buy her out of the house through a real estate lawyer, thus purchasing her 50% at whatever number you can agree on therefore owning 100% of the house and therefore get her name removed.

2. Get a court order to have the house sold so you can get your equity out.

There are two scenarios about the mortgage

She either pays the mortgage and you pay her occupational rent.
Or she pays nothing and you continue to live there.

She could potentially claim occupational rent at any time. You would then have to ask for her half of all mortgage, insurance, and property taxes since she moved out.

In some cases these numbers balance, in others they don't.

Northern Phoenix · #3 04-02-2014, 12:30 PM

I live the house and am the "she".
The house was appraised twice and has been valued under the current balance of the mortgage by $5K. I am willing to absorb the loss and take over the mortgage.
Basically just transferring joint ownership to sole owner ship.
I can not afford to buy elsewhere. I have two kids and they need the emotional stability of this home.
He tried the occupational rent thing but since he has not paid spousal or child support EVER that is a wash.
I am willing to give up child spousal, pension....I just want the house for my kids and I . I put the down payment on it when we purchased it. That was a mistake . I should have gotten a prenup. Lesson learned there for sure.
Anyway. I am hoping that since he knows he has no claim to equity since he no longer pays on mortgage he will sign off.

DowntroddenDad · #4 04-02-2014, 01:24 PM

Quote:

Originally Posted by Northern Phoenix

I live the house and am the "she".
The house was appraised twice and has been valued under the current balance of the mortgage by $5K. I am willing to absorb the loss and take over the mortgage.
Basically just transferring joint ownership to sole owner ship.
I can not afford to buy elsewhere. I have two kids and they need the emotional stability of this home.
He tried the occupational rent thing but since he has not paid spousal or child support EVER that is a wash.
I am willing to give up child spousal, pension....I just want the house for my kids and I . I put the down payment on it when we purchased it. That was a mistake . I should have gotten a prenup. Lesson learned there for sure.
Anyway. I am hoping that since he knows he has no claim to equity since he no longer pays on mortgage he will sign off.

The emotional stability of the house. I don't think that would fly in court, many separating families move. Many families move for many reasons. I know it is your emotional reasoning and almost certainly your preference and the children's preference to stay, but in the end, the court won't go that way.

But I also wouldn't suggest for a moment that you give up on CS. That should be there for the children, no matter what. For example what if you have a financial setback and can no longer afford to keep the house? The children still deserve support.

I don't know if you have a valid claim for spousal support. If you do (did you sacrifice your career to support his, did you stay home to raise the kids?), then you should propose that you waive SS in return for the house. It would be hard for him to turn that one down - he would exchange a debt of 50% of 5K for getting out of potential payments of hundreds a month.

I don't know your pension situation.

Can you afford the mortgage on just your income alone?

Rioe · #5 04-02-2014, 01:49 PM

If there is zero value to the asset and your ex is willing to get his name off the title, you need to find out if you can qualify for the mortgage on your own. Go to the bank or your mortgage lender, and find out if your income is sufficient to assume the mortgage fully on your own.

If yes, just get a real estate lawyer to do the title transfer, then take that to the bank and get your ex's name off the mortgage.

If no, then you're out of luck, and you're going to have to keep the situation you have now going as long as you and your ex are willing, if keeping the children in the existing home is a priority for both of you. Otherwise, start hunting for a home you can afford on your own and sell this one.

Northern Phoenix · #6 04-02-2014, 02:12 PM

I have already won on motion in court with regards to keeping the house. My STBX tried to force the sale of the home by bring a motion to proceed with the sale prior to trial. He lost that motion. BIG TIME. It was prejudical since it was very very premature. My STBX brought this motion prior to any offer to settle as a strategic move to bully me into taking any offer. Long story short. The Superior Court Judge was not amused. He ruled in my favour with my arguement being #1 the best interests of the kids and the judge agreed. The judge also agreed this tactic was very prejudical and the case law I quoted was spot on and was the case law he quoted in his decision.

Northern Phoenix · #7 04-02-2014, 02:16 PM

Quote:

Originally Posted by Rioe

If there is zero value to the asset and your ex is willing to get his name off the title, you need to find out if you can qualify for the mortgage on your own. Go to the bank or your mortgage lender, and find out if your income is sufficient to assume the mortgage fully on your own.

If yes, just get a real estate lawyer to do the title transfer, then take that to the bank and get your ex's name off the mortgage.

If no, then you're out of luck, and you're going to have to keep the situation you have now going as long as you and your ex are willing, if keeping the children in the existing home is a priority for both of you. Otherwise, start hunting for a home you can afford on your own and sell this one.

I have already qualified to take over the mortgage and I can afford it. I just was confused on whether or not there had to be a signed settlement agreement. We have agreed on very few things. Divorce being severed was pretty much the only thing. But I want to present him with the transfer of title in hopes that he signs it. In one of the many offers he did say he would transfer title to me so I would like to do that at my cost. I want to get on with my life ...he seems to want to continue the battle and I am not sure why.
Anyway. I have provided him with Bank approval of mortgage...etc.

DowntroddenDad · #8 04-02-2014, 02:40 PM

Quote:

Originally Posted by Northern Phoenix

I have already qualified to take over the mortgage and I can afford it. I just was confused on whether or not there had to be a signed settlement agreement. We have agreed on very few things. Divorce being severed was pretty much the only thing. But I want to present him with the transfer of title in hopes that he signs it. In one of the many offers he did say he would transfer title to me so I would like to do that at my cost. I want to get on with my life ...he seems to want to continue the battle and I am not sure why.
Anyway. I have provided him with Bank approval of mortgage...etc.

You do not have to have a signed agreement to sell the house, if the two people selling agree, and I may assume that it would be the same for a transfer from one to the other.

My ex and I agreed to sell before we had finished with the agreement. We had agreed to split the proceeds 50/50. But just before closing the real estate lawyer informed me that the proceeds would be going into a trust instead. My ex then proceeded to blackmail me into signing an agreement that wasn't in my favour before she would release the funds. I needed those funds to pay creditors, the shared debts were all in my name.

In the end, I had to decide whether it was worth it to fight over about $5-7K when it would cost me that much just to retain a lawyer, and time played out on her side. I bit the bullet and absorbed the loss.

In your case it should be easier as there are no proceeds.

Northern Phoenix · #9 04-02-2014, 02:57 PM

DownTroddenDad,
Okay so what you say makes sense. If you can sell prior to settling I guess you transfer too.
There is no way I would fight over $5K either. The problem for me now is that my STBX is about 50K in debt with lawyer fees and wants blood from a stone. He makes double what I make and is an alcoholic in a co dependant relationship. So there is very little common sense being applied here. I figure if we break things up in small bits we can move forward in baby steps. The house has zero equity. That is a no brainer. Hopefully that will get resolved. I will call a real estate lawyer to get this done. Have you ever heard of a quit claim deed?
I was thinking of doing that?

DowntroddenDad · #10 04-02-2014, 03:38 PM

Quote:

Originally Posted by Northern Phoenix

DownTroddenDad,
Okay so what you say makes sense. If you can sell prior to settling I guess you transfer too.
There is no way I would fight over $5K either. The problem for me now is that my STBX is about 50K in debt with lawyer fees and wants blood from a stone. He makes double what I make and is an alcoholic in a co dependant relationship. So there is very little common sense being applied here. I figure if we break things up in small bits we can move forward in baby steps. The house has zero equity. That is a no brainer. Hopefully that will get resolved. I will call a real estate lawyer to get this done. Have you ever heard of a quit claim deed?
I was thinking of doing that?

Have heard of it, but did a quick Google and found this:
Ontario Canada Homes & Real Estate - Changing Mortgage Programs For Divorce Situations - DWHowardRealty.com

Which basically says it won't take his name off the mortgage. A novation, which the lender writes, can.

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