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property division in divorce

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bestoneyet

Junior Member
What is the name of your state (only U.S. law)? IL.
Major problem. He holds the sole mortgage, he signed the quit claim over to me. He isn't paying the mortgage, will it come back to bite me if it gets forclosed on? and since he holds a 401K with more than enough money to pay the back mortgage and the rest of this years mortgage, can he be made to use that to pay until the house is sold? And if not can I force him to cash it in, he is over 55, and take my half and not be penalized, I am not 55 yet?
 


Zigner

Senior Member, Non-Attorney
What does your divorce decree say?
Why would HE pay the mortgage if YOU own the property?
 

nextwife

Senior Member
And was the entire 401K MARITAL, or was some PREMARITAL? Neither of you has any rights to the other's PREMARITAL 401k funds. And neither of you has rights to any assets of the other's that was not awarded in the divorce.

And I too, am perplexed. Your home? Why don't YOU pay the mortgage?
 

LdiJ

Senior Member
What is the name of your state (only U.S. law)? IL.
Major problem. He holds the sole mortgage, he signed the quit claim over to me. He isn't paying the mortgage, will it come back to bite me if it gets forclosed on? and since he holds a 401K with more than enough money to pay the back mortgage and the rest of this years mortgage, can he be made to use that to pay until the house is sold? And if not can I force him to cash it in, he is over 55, and take my half and not be penalized, I am not 55 yet?
If he is the only person on the mortgage it won't come back on you, credit wise, but you may both unnecessarily lose equity.

You really should be consulting an attorney.
 

bestoneyet

Junior Member
We are still working out the divorce. My lawyer is sitting back and not getting much done for my side. The 401K was started before we married but there was very minimum money in it. If it was not for me getting in touch with the group that administered it and changing where the money went there still would not be any money in the account. The house was bought for me 11 years ago before we were married. When we were living together he bought the house as the sole mortgage holder, (I was still married to my ex who had trashed my credit). When he decided that he wanted this divorce in Dec. he ran to the courthouse and took his name of the deed and left mine on it. That is where the complication comes in, he holds the mortgage and I have the quit claim to the house. Because of what he did, did he really gift me the house? or just screw us up so badly that no lawyer wants to deal with it and just wants to sell it out from under me? Any help on this would be greatly appreciated. thanks.
 
We are still working out the divorce. My lawyer is sitting back and not getting much done for my side. The 401K was started before we married but there was very minimum money in it. If it was not for me getting in touch with the group that administered it and changing where the money went there still would not be any money in the account. The house was bought for me 11 years ago before we were married. When we were living together he bought the house as the sole mortgage holder, (I was still married to my ex who had trashed my credit). When he decided that he wanted this divorce in Dec. he ran to the courthouse and took his name of the deed and left mine on it. That is where the complication comes in, he holds the mortgage and I have the quit claim to the house. Because of what he did, did he really gift me the house? or just screw us up so badly that no lawyer wants to deal with it and just wants to sell it out from under me? Any help on this would be greatly appreciated. thanks.
Cutoff date in Illinois for marital property is date of divorce..so you'll be entitled to an equitable portion of the contributions to his retirement account and appreciation of those contributions from when you got married until it is valued at settlement. Your portion can be rolled over into a retirement account in your name without any taxes...or you can cash your portion out without any penalties pursuant to a divorce...but you still have to pay ordinary taxes. It doesn't make any difference how your marital assets are titled for division however. If he bought the house with his own separate funds before you got married... even if he quitclaimed it to you while you were married he could still be entitled to a reimbursement for those funds (without interest of course)! and the balance of the equity would still be considered marital and subject to equitable division. That of course is assuming that he used marital income to pay for the house after you got married. I'm not sure I understand that comment about him buying the house "for you" with him as sole mortgage holder before you married him and while you were still married to someone else? He put you on the title while you were married to someone else? That sounds very odd....and very dangerous.
 
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LdiJ

Senior Member
We are still working out the divorce. My lawyer is sitting back and not getting much done for my side. The 401K was started before we married but there was very minimum money in it. If it was not for me getting in touch with the group that administered it and changing where the money went there still would not be any money in the account. The house was bought for me 11 years ago before we were married. When we were living together he bought the house as the sole mortgage holder, (I was still married to my ex who had trashed my credit). When he decided that he wanted this divorce in Dec. he ran to the courthouse and took his name of the deed and left mine on it. That is where the complication comes in, he holds the mortgage and I have the quit claim to the house. Because of what he did, did he really gift me the house? or just screw us up so badly that no lawyer wants to deal with it and just wants to sell it out from under me? Any help on this would be greatly appreciated. thanks.
Can you make the mortgage payments? Can you qualify for enough of a mortgage to refinance and take him off the mortgage? If not, then the attorneys are correct, the house needs to be sold.
 

bestoneyet

Junior Member
He bought the house for me because he said he loved me and he wanted somewhere for us to live together, with my daughter who was still in school at the time. I was still married and he knew that but he also knew that there was no way I was going to go back to my husband. The marriage was over and I was just waiting it out to file, you know the wait two years and file and have no response from him because he was also in a new relationship. I finally filed and got it all taken care of and we continued living together with me putting my money in his checking account to pay the expenses. We married and then he had a heart attach and retired from work and I continued working and putting the money into the joint account and paying the bills. He decided he wanted the divorce and then did the most stupid thing he could have and that was to call 911 on himself. After he left that day wtih the police watching him, he never came back and never make contact with me until about a month or so later. He still has not gotten all his stuff out of the house and now He wants the house sold out from under me. I don't think that I could afford the mortgage because of how much he owes in bad payments. I could never catch it up. I have not talked with a mortgage company yet to see if I would qualify for one. If I can qualify can I force him to buy out my half and pay me so I can keep the house?? I just want to stay in the house with the dog and cats and be happy again. Is that too much to ask?
 

LdiJ

Senior Member
He bought the house for me because he said he loved me and he wanted somewhere for us to live together, with my daughter who was still in school at the time. I was still married and he knew that but he also knew that there was no way I was going to go back to my husband. The marriage was over and I was just waiting it out to file, you know the wait two years and file and have no response from him because he was also in a new relationship. I finally filed and got it all taken care of and we continued living together with me putting my money in his checking account to pay the expenses. We married and then he had a heart attach and retired from work and I continued working and putting the money into the joint account and paying the bills. He decided he wanted the divorce and then did the most stupid thing he could have and that was to call 911 on himself. After he left that day wtih the police watching him, he never came back and never make contact with me until about a month or so later. He still has not gotten all his stuff out of the house and now He wants the house sold out from under me. I don't think that I could afford the mortgage because of how much he owes in bad payments. I could never catch it up. I have not talked with a mortgage company yet to see if I would qualify for one. If I can qualify can I force him to buy out my half and pay me so I can keep the house?? I just want to stay in the house with the dog and cats and be happy again. Is that too much to ask?
Yes, its very possible that its too much to ask.

If you keep the house, he isn't going to have to buy you out, you are going to have to buy HIM out. You are going to have to refinance the home for enough to both cover the existing mortgage, AND to buy out his share of the equity.

If you can't do that, then the house has to be sold. That is simply reality, and reality that you are going to have to accept.

Edit to add:

Think about another alternative. Its a buyer's market these days and there are very good deals to be had. See if you can qualify for ANY mortgage, and then go out shopping for a house that you can legitimately afford. Someplace all of your own with no ties to the past. Move in there with your dogs and cats, and be happy.
 
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mistoffolees

Senior Member
He wants the house sold out from under me. I don't think that I could afford the mortgage because of how much he owes in bad payments. I could never catch it up.
You've already got your answer for most of this. The emotional issues are irrelevant (we'd all love a free house where we can stay with our dogs and cats and be happy again, but the court is not interested in that - only the legal side).

However, I wanted to address the above statement. Most likely, any debt existing at the time of the divorce is marital debt. So you are both responsible for bringing the mortgage to current status at the time of the divorce filing. Essentially, he's going to owe half of the back payments and you will owe half.

I don't know if that's enough to make a difference, but it might. If not, sell the house and move on with your life.
 

bestoneyet

Junior Member
The house is not in good condition, it needs work, something that he never wanted to do. I don't think that there is any equity to be had. My dad has great credit. He may be able to get the loan for me and allow me to make the payments. I don't see that I am responsible for the mortgage at all if it is solely in his name and not mine. Marital or not my name is no where on the file for the mortgage, except that my parents gave us $3,000. to back up the loan when we first got the mortgage. He doesn't deserve any money from the sale of the home as he never did anything to fix it up or keep it repaired. I'm the one who paints and fixes and gets stuff taken care of. If the house sold for less than is owed who is responsible for the debt?
 

HomeGuru

Senior Member
The house is not in good condition, it needs work, something that he never wanted to do. I don't think that there is any equity to be had. My dad has great credit. He may be able to get the loan for me and allow me to make the payments. I don't see that I am responsible for the mortgage at all if it is solely in his name and not mine. Marital or not my name is no where on the file for the mortgage, except that my parents gave us $3,000. to back up the loan when we first got the mortgage. He doesn't deserve any money from the sale of the home as he never did anything to fix it up or keep it repaired. I'm the one who paints and fixes and gets stuff taken care of. If the house sold for less than is owed who is responsible for the debt?
**A: the people on the mortgage.
 

nextwife

Senior Member
The house is not in good condition, it needs work, something that he never wanted to do. I don't think that there is any equity to be had. My dad has great credit. He may be able to get the loan for me and allow me to make the payments. I don't see that I am responsible for the mortgage at all if it is solely in his name and not mine. Marital or not my name is no where on the file for the mortgage, except that my parents gave us $3,000. to back up the loan when we first got the mortgage. He doesn't deserve any money from the sale of the home as he never did anything to fix it up or keep it repaired. I'm the one who paints and fixes and gets stuff taken care of. If the house sold for less than is owed who is responsible for the debt?
Irrelevent. When the house is sold, for example, the title company does not care who did what work , who paid what part of the mortgage. All parties VESTED IN TITLE GET THEIR proportional SHARE OF PROCEEDS BASED UPON their interest in ownership.

You keep stating different info about who is on what.
 

bestoneyet

Junior Member
he is solely on the mortgage but I was there helping him get it. IF not for my parents giving me the money he wouldn't have been able to get the mortgage. I AM on the quit claim deed at the courthouse.
 

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