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  1. #1
    Join Date
    Apr 2012
    Posts
    4

    Default Sale of Marital Home

    My question involves a marriage in the state of: MA

    My friends have been married 25 yrs., co-own their home (both are on title and mortgage, which is half paid) but are going to call it quits. He doesn’t want to remain living in their home, is ok with her continuing to live there if perhaps he can keep his financial interest in the house until such time as she’s ready to sell and downsize/move elsewhere. Their one child is 24 yrs. old and graduated/moved out a long time ago. At issue is her ability to afford to live there – she’s always had low income (income split through much of the marriage was 20/80 at best). It’s doubtful she’ll afford to continue living there given the monthly mortgage, high prop tax, sewer/gas, utilities, etc. She’s adamant on staying however.

    Questions: Given her limited means, does a judge have a right to “investigate” the finances of each party to make sure they can continue to live in the house and make all needed payments, so as to avoid potential foreclosure ? My understanding is that in order for her to remain in the house and her ex-hubs to not be responsible for payments, she’d re-finance the mortgage in her name only, something I’m almost certain she would not qualify for without her husband’s income. What would happen if she applied for a re-finance and was declined? Is the court then required to force a sale, or is the ex-husband required to make payments even if he no longer lives there or wants to live there?

    If she were to successfully re-finance, what happens to his financial stake in the home – would she simply “buy him out” and pay him his share of the home at the going market rate/value? Is this market rate/value determined by the re-fi or some other process?

    Generally speaking, how much interest in the home might he be awarded - is it usually 50/50 or does a judge vary this split based on the incomes and assets of both marital parties?

    If the home can’t be sold after sitting on market (they live in an area where sales have been way down, homes are listed for years) who is responsible for upkeep, making continued payments, etc.? Would a divorce order stipulate who’s responsible for what in this situation?

    If she were to successfully re-finance and remain, would he be required to sign an immediate quit-claim deed to remove him from the title as well (after being paid his financial share) or is it acceptable that he continue to remain “silent co-owner” and continue to accrue gain in house as prices (hopefully) continue to go up in coming years, until she wants to downsize/sell? Not sure what is typical in these instances.

  2. #2
    Join Date
    Sep 2011
    Location
    OH10
    Posts
    17,019

    Default Re: Sale of Marital Home

    He does not get to walk away free and clear, leaving her responsible for paying all the bills and expect her to cover his butt. If he leaves her there, it does not matter what the court orders. If she defaults on a joint mortgage, he will also be responsible. If she cannot get a mortgage in her name only, that still remains his problem.

  3. #3
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Sale of Marital Home

    If the parties settle their case, odds are the court will go along with the settlement. If they do not, the court won't have to "investigate" anything - the matter will go to trial and the parties will present their evidence.

    If she wants to see if she can refinance, she should go to a bank and see if she qualifies.

    It is quite possible that the parties will not be able to work out a way for her to keep the house.

    If the parties are trying to sell the house and cannot, they can either agree on how bills will be divided or have the court decide that issue after a hearing or trial on the issue.

    Why in the would would he think he would have any right to stay on the title, or that his spouse would be interested in having him on the title, if she had to refinance to buy the house from him? If he wants to maintain part-ownership, he should expect to stay on the mortage and to pay an appropriate share of the mortgage payments.

    The marital estate is normally divided equally between the parties. The rest depends on the facts.

  4. #4
    Join Date
    Apr 2012
    Posts
    4

    Default Re: Sale of Marital Home

    Thanks for responding, Mr. K.

    Quote Quoting Mr. Knowitall
    View Post
    Why in the would would he think he would have any right to stay on the title, or that his spouse would be interested in having him on the title, if she had to refinance to buy the house from him? If he wants to maintain part-ownership, he should expect to stay on the mortage and to pay an appropriate share of the mortgage payments.
    I think his thinking was influenced by friends of theirs (also in the state of MA) who divorced, the wife was given right to stay in the home until their youngest child reached 18 (or graduated college), then they would sell. In the meantime, the wife paid the full monthly mortgage and all attendant bills, while he remained on the title/mortgage (as backup?)....she was in effect, "renting" the home from both of them while they both remained co-owners until sale down the road when they would split profits 50/50 (she was the higher earner during the marriage so maybe this influenced). I think the husband in this instance thought a similar deal could be worked out, even though there are no minor children that might require this kind of arrangement.

    The marital estate is normally divided equally between the parties. The rest depends on the facts.
    Gotcha. But if the wife is able to re-fi and buy out her hubs 50%, who/what determines the market value of the home? - the assessed value, a value based on local real estate comps - ? how is this normally determined.

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