Divorce and Prenuptial Agreement

[Daniel Lee Eschbach]

My question involves a marriage in the state of: California

Hi,
This question is for a friend. She is going through a divorce. She has a prenuptial with husband. It states THEY are to split the expenses of home 50/50. Since marriage started "HE" has paid nothing to help her with her expenses. Husband forged her signature on loan documents to buy an "AS-IS" house. Now, House is 80k underwater. He was kicked out and a restraining order is in place.

She is a nurse and a bad mark on her credit or a poor credit rating will prevent her from acquiring a job. A couple of months ago the first judge ruled the house to be sold STANDARD SALE, as both are capable of covering the deficit. 2 years into divorce and Husband has 3rd attorney. Last week a new judge said she doesn't know that it would be fair and basically invalidated the 1st judges order/ruling.

Now she [my friend] is looking at possibly losing the house and having to cover the 80k deficit all by herself. How can THAT be fair? Does the 2nd judge have the authority to invalidate the 1st judges order. Doesn't that have to go up to an appellate court to have the first judges order overturned?

Does anyone know of similar court cases. Is there case law similar to this that can be referred to as precedence?

The house was bought with a HIS VA loan guarantee. She has made all the payments (mortgage, upkeep) so the mortgage is current and does not qualify for a short sale. If the payments were to go into default, he'd lose his VA loan guarantee and could possibly sue HER because of it, yet he will not sign over the house and wants to do a short sale. This will damage their credit rating, but he does not care.

She would like to stay in the house as the expense of moving is extreme.

The point that I keep looking at is that HE has not PAID ANYTHING to help her.

Prenuptial says no support payments in the event of divorce, but they are not divorced YET, and he signed her name to the loan documents, and the prenuptial states they are to pay 50/50 on everything.

He is trying to run out the clock, take status and then declare bankruptcy.

Any help with this would be appreciated.

[jk]

doesn't she have an attorney?


as to the "forged" documents;

of course she reported it to the police as soon as it was discovered, right? She has contacted the lender and informed them her signature was forged, right?

[Daniel Lee Eschbach]

She has contacted the lender, yes, but I do not know the details. She does have an attorney also. your post did not answer any question and you seem confrontational. The points you highlight do not seem to matter to anyone else in the case. This has been going on for two years, and dozens of briefs have been written explaining the situation. Your points have been SPELLED OUT multiple times and have fallen on deaf ears. I am trying to help her. I once again ask my question. Do you, or anyone else know of similar cases that could be used as precedence. I am just trying to help.

[jk]

I asked about the forged signature because you seem to be making a big issue about it. Now you turn around and say it isn't an issue and has already been addressed.


I guess since nobody else sees it as a problem, I am wondering why you felt the need to even mention it.



yes, a new judge on the same case can change a ruling. Once the issue is complete, if there is still an argument by a party believing to be aggrieved and the courts failed to address the issue as the law requires and there wasn't some reconciliation between the parties, then the aggrieved party appeals the decision. Until that time, nothing is set in stone. Maybe he will change his mind. Maybe there will be another judge that changes it again.

and given this has already taken 2 years, there is quite likely a lot of other action that could have made the change quite appropriate.



something else you state makes no sense.

A couple of months ago the first judge ruled the house to be sold STANDARD SALE, as both are capable of covering the deficit.

She would like to stay in the house as the expense of moving is extreme.

she was happy with the sale the first judge ordered but now a judge has changed that to...

they have to sell the house


and now she has a problem with it. What am I missing?


your "facts" are confusing. In one sentence you say she was fine with a sale and now you say she doesn't want to sell. In one sentence you state he forged her signature and in the next, you say everybody knows but doesn't care which makes no sense. Then you state the property is not eligible for a short sale but he wants to attempt a short sale. Since she has been making payments and is concerned about her credit, she simply continues to make the payments until a court orders otherwise.


There is no clarity in your statements. You want case law for what I have no idea. You look for case law for specific applications of the law. You have not actually stated anything you are specifically concerned with and no true facts to begin to compare your situation with some prior case.

[Mr. Knowitall]

If the house is ordered sold, it would normally be because the two parties either can't agree on a valuation or that neither wants the home. If the problem is the former, the spouse that wants the house should be able to buy it - and would presumably want to be identified in any real estate contract as a buyer whose purchase would not trigger a commission.

[Daniel Lee Eschbach]

Mr JK,

I am laying out what I know of the case. I have tried not to get so involved as to have it become part of my life as well. I do not believe I am making a big issue out of the forged signatures. I only brought it up as another instance of what this %^$&##@ has done to my friend. The house was to be sold as a standard sale. This has been going on for six months, not the two I stated in error. She does not want to have to move, but is ready to move IF her "husband" does not sign over the house to her. It would benefit him in that IF she lets the house be sold SHORT SALE, it will damage his credit as well and from what I know about the military/VA, it will prevent him from ever using the VA Loan Guarantee again, UNTIL he pays off the deficit owed on this house... YOU think it's confusing ??? You are NOT the only one. There are banks involved for the loan, The VA is also involved, and after months of negotiating something FAIR, and I do see it as fair that each pay half the deficit on the loan (as there is no equity and the house is under value now), HE does not think HE should have to pay anything. The house is not eligible for shortsale because the payments have been kept current and the Bank nor VA will allow a short sale because of this. If she quits paying the mortgage, HE can sue her because HE will lose the VA Loan Guarantee forever. It will also damage HER credit. This guy has my friend in between the proverbial "rock and a hard place". This house is $80,000.00+ underwater. He owes her half of this amount just in mortgage payments and upkeep for the last two years. IF hE signs it over to her, she will assume his VA LOAN GUARANTEE and KEEP IT CURRENT... IF ... he signs the house over to her. IF not the prenup will be enforced and he will have to pay her half of all the expenses PLUS half the deficit. So I do not know why he would not go for that, other than just being an &^%$ and thinking he can get out of it by filing bankruptcy after the divorce. Did I clarify or cloud it up more for you ?

[jk]

this is simply to complex to address on a forum. There is information that you do not know that can play strongly in the situation. Heck, the forgery alone should be a big issue but for some reason, it isn't. Actions like that can play havoc on things like a pre-nup.

On top of that, the house is only one part of the entire situation. Granted the marriage isn't a long marriage but there could be, and likely is, other debts and assets to consider.

If she quits paying the mortgage, HE can sue her because HE will lose the VA Loan Guarantee forever.

No, not really for a couple reasons:

1. it is his loan. At best she is a joint debtor. That does not make her liable to him. He can get out his wallet and pay. If he doesn't, the damages are his own doing.

2, this is where the forgery issue comes in. If true, he would simply be exposing his crime

[Daniel Lee Eschbach]

Mr JK,

Yeah it is complex. That's why I was trying to help her. I appreciate your sincerity here. Your highlight here is another problem. My friend found out [after the fact] that this guy has done this before.. to his first wife. scamming for money. To date he has never paid for ANYTHING. Ive told her to just walk away from the house, but she is afraid of possibly being sued and even if she did win, she is still looking at an extreme financial burden. AND that is probably what he hopes to accomplish. Make it so expensive that she will just drop it, to just cut her losses up to this point. I did not think it was going to help posting this predicament on a board, but I thought I'd give it a try. If she cannot resolve this in the next few days, she is probably looking at a TRIAL which she states could cost another 10k on top of the legal expense already.