I paid the mortgage and child support while my ex-husband was MIA for decades. He will only sell his share of our house to our daughters. What can I do?


Dear Quentin,

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

Dear 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.

Yoyou can email The Moneyist for any financial and ethical questions related to the coronavirus at [email protected], and follow Quentin Fottrell on Twitter.

Discover Moneyist’s private Facebook group, where we seek answers to life’s trickiest money problems. Readers write to me with all sorts of dilemmas. Ask your questions, tell me what you want to know more or weigh in on the latest Moneyist columns.

The Moneyist regrets not being able to answer the questions individually.

More Quentin Fottrell:

• “Our friends have always longed for a relationship like ours”: My husband of 16 years left me for another man. I don’t want them living on our properties. What can I do?
• “She trusts me completely”: my sister offered to pay my credit card bill. I will pay it back over the next 4 years. Am I taking advantage of our relationship?
• “He’s the least computer illiterate person I know”: I was my husband’s research analyst, nurse’s aide, cook and housekeeper. Now he wants a divorce after 38 years.


Comments are closed.