My divorce decree states that I have exclusive possession of the marital residence. The deed bears my ex-husband’s name and my name as his wife. I approached my ex-husband to sell the house.
He has been absent, without knowing where he is for several decades. He had no contact with my youngest daughter after the age of two (she is now 44) and the eldest daughter since she was 12 (she is now 52).
We had been married for 11 years and had a 27 year mortgage. I remarried and we paid off the mortgage, we both supported our children and did major home repairs, as well as put my daughters through college without any student loans.
I offered the amount of money that was my ex-husband’s share of the down payment and mortgage payments. He refused and said he wanted the house sold and all proceeds going to our daughters, and he wouldn’t agree to anything else.
My ex-husband only lived in the house for the first four years. Please let me know what my options are, as I’ve heard different answers from different lawyers and I don’t want to mess up incorrect information.
Confused and desperate
It must have been an ordeal having this hanging over your head as you struggled to pay the mortgage each month. Ideally, it’s best to refinance the mortgage and title the home to one person at the time of the divorce. Otherwise, you end up with a situation like this, where one party takes financial responsibility, even though they own 50% of the house.
Steve Braccini, an attorney with the Sheppard Mullin law firm in California, says that since you’ve paid off the lion’s share of the remaining mortgage, you may have the option of filing a “silent title action,” which is generally used when there is a disagreement over ownership of a property, alleging that you are now the sole owner of the property.
“This assumes the ex-husband hasn’t contributed to the mortgage repayment in the many years since he went MIA,” he says. “Most importantly, the divorce decree may contain a provision for the division of assets and property, so it is important to first determine what the decree provides beyond the exclusive possession of property by that individual.”
Another option is to have your husband relinquish ownership of the property, i.e. sign a quitclaim deed, and place your two daughters on the title of the house instead. That way, he’ll fulfill his promise to make sure your children inherit the house, and if he dies before you do, you’ll be in a safer position.
Your children will need to be trustworthy and they will each need to sign a postnuptial agreement with their respective spouses in the event of a divorce. They benefit from “increasing the tax base”, which means that the appreciation of the house over the course of your ownership is not taxed, but there are also other tax considerations, which you can ask about. find out more here.
An alternative is for you and your ex-husband to put your house in trust for your children, so that your shares in the property avoid probate and are transferred to them upon your death. Again, this would allow your husband to fulfill his wish to leave his share of your property to your children, assuming he is honest about his intentions.
These are suggestions, not recommendations. You shouldn’t do any decision before talking to a real estate attorney about your state’s laws and analyzing your divorce decree in forensic detail. I understand that it is not always easy to live with this uncertainty, but you are right to find a way out of this dilemma now while you and your husband are still healthy.
There is a way forward. You have options.
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