Garymustang1977 Posted July 24, 2012 Posted July 24, 2012 Hello once again, I've never been divorced and am a bit ignorant about whether a judge will order the division of property as a matter of law, or if both my wife and I agree that we only want a divorce, but want to continue to jointly own the home that this is okay? I only ask because if we are forced to sell the home we'd both be in a financial hardship position and with other heavy debts to consider. My reasoning is that we could still pay for our home, but live as a divorced couple under the same roof until we're better off financially. It's cheaper to live together like roommates than in separate places at this point in our lives. Is this possible? That is to jointly own a home as a divorced couple? Will we need to change anything with the mortgage company contract such as our marital status? Thanks very much for any advice, Gary
carhill Posted July 24, 2012 Posted July 24, 2012 If the voluntary direct or mediated settlement passes the equity test at prove-up, it's entirely possible for such a judgment to be entered. Also, it's possible, dependent upon jurisdiction, to get a judgment entered with bifurcation of financial issues, allowing the specifics of the issues to be settled at a future point. Any competent attorney will/can cover such general issues during their interview for retainer. Happy 28,000
Author Garymustang1977 Posted July 24, 2012 Author Posted July 24, 2012 Thanks, Carhill! You've replied to a post of mine before and it was good advice. The house is our big sticking point in our divorce agreement. Her fear is that a judge would "force" us to sell, but I had doubts if that was a law or what. She works six months out of the year and the remaining months she lives on unemployment (she's a government employee). No way could she afford the house. She's comfortable in this 1,800 sq. ft. home and doesn't want to move to an apartment. I've told her that maybe it's possible we could be divorced, but remain joint owners of the home. You may have answered that question. Also, do you have any opinions about whether it's possible to sell a portion of a mortgage to an investor? In other words, could I sell my portion of our home to someone else? They could live in the home and benefit with the future increase in value of the home should the time come to sell, but get in at a cheaper price. Does that make sense? It'd be like putting their name on the mortgage along with my wife's but taking my name off. Don't know if my wife would need to re-qualify or what, however. Thanks once again, Gary
carhill Posted July 24, 2012 Posted July 24, 2012 What you really need is a professional financial adviser who is competent in the laws of your state wrt real estate. Here's some general ideas: 1. Create a land trust and convey proportionate shares to the parties. After, you and wife don't own the property any more, rather the trust does. This can be structured to avoid due on sale clauses, if extent. 2. Transmute ownership to a tenancy of the commons from joint tenancy with right of survivorship. 3. Regarding assignment of debt, it's possible to create a debt servicing entity, transfer equitable interest and contract with the buyer of said interest to service the debt through that entity. That's one of many possibilities. I would suggest that you contact an investment professional and/or peruse the internet in the real estate forums for strategies regarding creative financing. How much are you willing to spend to preserve your equity position and credit rating, yet still accomplish your goals of divorce? Good question to ask, along with how cooperative will your spouse be in achieving these financial goals.
Forever Learning Posted July 24, 2012 Posted July 24, 2012 (edited) What you really need is a professional financial adviser who is competent in the laws of your state wrt real estate. How much are you willing to spend to preserve your equity position and credit rating, yet still accomplish your goals of divorce? Good question to ask, along with how cooperative will your spouse be in achieving these financial goals. Great advice and things to consider. Yes, Carhill is astute! What would we do around here without him? I hate to think about it!! OP, I got divorced here in Texas last year. I consulted with four (4) different attorneys, and got a variety of advice from each! As I recall, 2 consults were free (30 minutes each), 1 consult was $50, and one consult was $150, and that amount, if I used that attorney, would be applied towards his total fee. He is the attorney I ended up going with, coincedently. His overall fee was lower than the others, and he patiently suffered through alot of questions from me, so I chose him. He was a grump though, the others were pleasant. But they cost alot more. So I went with the grumpy guy, he was very knowledgable, but just a curmudgeon. Polar opposite of me! But my divorce was pretty simple. Best bet, go get a variety of opinions. It takes time. Be patient, take someone with you so you can both take notes when the attorney is speaking. They will look at you funny (the attorney) and try to talk you out of your house plan, saying its not cost effective. They might be right, or not, I have no idea. But get a variety of legal input. They you will feel more assured of what 'goes' out there with house ownership plans during divorce, and what doesn't fly and the judge will give thumbs down on. Judges are weird, sometimes they give a thumbs down on things that seem convoluted. They like things to be completely resolved and clear cut, is my experience. Sometimes, though, they don't have a choice, and must honor the law regarding what you can do with your house. I feel your pain, you need legal and real estate professional advice. It may seem overwhelming, because your idea is off the beaten path and a bit complicated. Get the legal advice first, via free consults. Good luck to you. Edited July 24, 2012 by Forever Learning
carhill Posted July 24, 2012 Posted July 24, 2012 OP, another thought... With 40K out and 110K in, private money might work here. Do a five year balloon, clear the title, re-write the deed of trust with your wife as trustor, create a land trust, decide who owns what shares, execute and agree that each spouse will retain their shares of the trust in the divorce. Since your wife is on the hook for the note, her share would be in proportion to that obligation. Private money does creative deals more often than hard money lenders so such gyrations are not scary to them. I know a number of friends who would throw 40K at such a deal without blinking, especially in today's low-interest, tax unfriendly environment. It's just good business, especially at your LTV. I'd estimate, if doable, this could be done for under 2500.00, not counting any lender-related fees. I've had some experience with it, and trusts in general. I will say, the less time your lawyer spends in front of a judge, the better. Legal costs spike with each court appearance. Know that for fact. Paid it. If you two are amicable, there's a lot you can do yourselves and merely package it with a bow the court likes, even if you don't actually do it. I would only recommend that strategy if you're willing to shoulder the risks. Your legal/financial adviser can apprise you of them, as well as the benefits.
Star Gazer Posted July 24, 2012 Posted July 24, 2012 Umm, you need to seek the advice of an attorney licensed to practice in Texas, not lay opinion from Californians on the internet.
carhill Posted July 24, 2012 Posted July 24, 2012 Thanks for *your* opinion, callifornia legal person. It's a discussion forum and we'll do as we please.
g450 Posted July 25, 2012 Posted July 25, 2012 (edited) Umm, you need to seek the advice of an attorney licensed to practice in Texas, not lay opinion from Californians on the internet. ^^^^^^^ This! My divorce was in TX but when it comes to legal advice you really dont want to armchair lawyers helping you with that. Seek a lawyer. If the divorce is amicable like mine was you will most likely spend less than $1k on your lawyer. In my case it was easy because our home was paid off. It was basically I get the house or I burn it to the ground. She didnt fight me on that. Your desire to divorce each other but still live in the same home puzzles me. If it would be such a hardship why dont you either... A)Stay married until you are better off with your debt? What's the big rush to get divorced if you are OK with living together? Are you doing this to apply for food stamps or something? Simply stay married and you can save the money you would have spent on a lawyer. B)Sell the house and split the money to pay some of your other debts off. That's the whole reason people do this in the first place. I dont see how continuing to live there will benefit you financially when you can simply sell it and move in with relatives or get yourself an effiency appartment. I just dont understand your train of thought. Why on earth would you want to live with your ex like roomates. Is it just me or is there something else going on here? Edited July 25, 2012 by g450
carhill Posted July 25, 2012 Posted July 25, 2012 With all due respect, in business I discuss potential *ideas* with other businesspeople before paying 350/per for specific legal advice. It's smart business, gathering *ideas*. What I don't like is being called names for offering ideas, even with multiple disclaimers to seek out legal counsel in one's own state. I'll leave it to moderation to deal with that part. OP, do you want any further *ideas*?
g450 Posted July 27, 2012 Posted July 27, 2012 Carhill, just for the record I agree with you. Advise is worth what you pay for it but there is nothing wrong with getting a concensus. I will say this though. I have seen lots of people here go the cheap do it yourself divorce thing so I warn people not to do this. As my lawyer said, once you do that there is nothing he can do to fix the mistakes. Not saying OP is doing that but the thought of somebody being sued for half their retirement after already being divorced for 20 years makes my skin crawl. Nothing wrong with getting general info her but always ALWAYS seek professional help in a divorce. Hope you dont think my last posting was aimed at you. You tend to me one of the more knowledgable and level headed posters here and I respect you.
Ami1uwant Posted July 28, 2012 Posted July 28, 2012 Hello once again, I've never been divorced and am a bit ignorant about whether a judge will order the division of property as a matter of law, or if both my wife and I agree that we only want a divorce, but want to continue to jointly own the home that this is okay? I only ask because if we are forced to sell the home we'd both be in a financial hardship position and with other heavy debts to consider. My reasoning is that we could still pay for our home, but live as a divorced couple under the same roof until we're better off financially. It's cheaper to live together like roommates than in separate places at this point in our lives. Is this possible? That is to jointly own a home as a divorced couple? Will we need to change anything with the mortgage company contract such as our marital status? Thanks very much for any advice, Gary Under this current climate judges will be fine with a divide of ownership of the home instead of it seeling. You will need to define and establish how much will get paid by each of you and what percent ownership is whose. You have to ask yourself...at what point will this house be sold? This is an asset of your so you need to know when you can get that asset back. As for living in the same house while divorced will cause problems long term. how will you have new relationships? hwne they find out about this arrangement they will likely run from you. I also understand you wanting to keep this if you have kids and you are in a good school district. If your two are childless then there is no long term reason to hold onto the house other than waiting for the market to turn araound...so you dont lose money.
thatone Posted July 28, 2012 Posted July 28, 2012 why don't you rent the house? you'd both make a little profit from it and be able to go get new places separate from each other. 1
g450 Posted July 29, 2012 Posted July 29, 2012 why don't you rent the house? you'd both make a little profit from it and be able to go get new places separate from each other. Good idea. OP is making this harder than it needs to be IMO. Again, why not just sell the house and move in with relatives or get an efficiency appartment? Living together after divorce? He must be a glutten for punishment. I once had a date with a woman and she told me she was stuck in a lease on a home with her ex boyfriend and that I could pick her up from their home but I could not go in out of respect for him. Needless to say I pretty much lost interest in her very quickly. I wasnt born yesterday and I didnt want to live in somebody elses real life TV sitcom.
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