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Arizona Divorce / Home Issue

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MercuryChrome

Junior Member
Hi there,

My wife and I divorced in 2005 (all of this in ARIZONA). As per "Default Divorce Decree" my wife was awarded a home that was under my name and under a loan also under my name. The decree called for her to refinance or sell before certain date and she did not. She was however responsible to make the payments.

I never signed the divorce decree (hence the default decree from court) and I never "quit claimed" the house to her since I was waiting for assurance that she would put the house under her name (which never came) As time went by, she was making payments on the house but as the economy turned sour she stopped making payments altogether. I stepped in because the house and loan were under my name and the bank was chasing me.

After the situation turned sour for me as well, I decided to contact lawyers to help me out with this issue. They quickly found out that she had signed a "disclaimer deed" (which I was not aware of since she was in real estate and she worked the loan...little did I know, and hey, she was my wife...) Anyway, lawyers told me she had no real option as:

1) Default Divorce Decree is rendered invalid as the disclaimer deed was not mentioned and I was not in agreement (nor was the bank)
2) I did not quit claimed the house over ot her
3) Title and Loan are still under my name

Now she is claiming that the house is still "hers" and that if not she will take me to court for the money she paid. She is also using that divorce decree as a sword everytime she talks to somebody regarding the house although the title is not in her name, nor the loan, and there is a disclaimer deed.

- Does she have a case for anything (money she paid, divorce decree, title, etc.)?
- She threatening to go to the house tenants. How can I prevent her from harassing the tenants?
- Can I do anything to render the decree invalid? Is there a document I can get from court?

Thanks...
 


mistoffolees

Senior Member
Hi there,

My wife and I divorced in 2005 (all of this in ARIZONA). As per "Default Divorce Decree" my wife was awarded a home that was under my name and under a loan also under my name. The decree called for her to refinance or sell before certain date and she did not. She was however responsible to make the payments.

I never signed the divorce decree (hence the default decree from court) and I never "quit claimed" the house to her since I was waiting for assurance that she would put the house under her name (which never came) As time went by, she was making payments on the house but as the economy turned sour she stopped making payments altogether. I stepped in because the house and loan were under my name and the bank was chasing me.

After the situation turned sour for me as well, I decided to contact lawyers to help me out with this issue. They quickly found out that she had signed a "disclaimer deed" (which I was not aware of since she was in real estate and she worked the loan...little did I know, and hey, she was my wife...) Anyway, lawyers told me she had no real option as:

1) Default Divorce Decree is rendered invalid as the disclaimer deed was not mentioned and I was not in agreement (nor was the bank)
2) I did not quit claimed the house over ot her
3) Title and Loan are still under my name

Now she is claiming that the house is still "hers" and that if not she will take me to court for the money she paid. She is also using that divorce decree as a sword everytime she talks to somebody regarding the house although the title is not in her name, nor the loan, and there is a disclaimer deed.

- Does she have a case for anything (money she paid, divorce decree, title, etc.)?
- She threatening to go to the house tenants. How can I prevent her from harassing the tenants?
- Can I do anything to render the decree invalid? Is there a document I can get from court?

Thanks...
Let me make sure I have this straight. The court ordered that she would have possession of the house, yet you've rented it to tenants?

If that's correct, you could be in a lot of trouble. Sure, she didn't make the payments, but that doesn't allow you to ignore the court's order.

When she didn't make payments, you had the right to go to court and have her held in contempt. That's ALL you had the right to do. You could not take the house back, rent it, and so on.

The fact that she broke the agreement doesn't give you the right to. And the fact that you didn't sign the decree is irrelevant. If the judge signed the decree and filed it, it's final.

You're going to need to go back to your attorney. To answer your specific questions:

1. You are in contempt of court - for taking the house away from her and renting it. She can collect damages for that (you can counter that she owes you even more money, but you may have to file a separate case).
2. Since the house should be hers, per the divorce decree, the tenants shouldn't be there in the first place. She MAY be able to have them evicted since they don't have a legal lease.
3. I doubt if you can have the decree rendered invalid because she didn't make the house payments. You may be able to go back to court to ask for a modification. Specifically, it would be reasonable for you to ask for the house to be sold and for her to reimburse you for your expenses (less what you've collected in rent). If you ask for the court to award you the house, you're going to need to reimburse her for the equity.
 

LdiJ

Senior Member
Hi there,

My wife and I divorced in 2005 (all of this in ARIZONA). As per "Default Divorce Decree" my wife was awarded a home that was under my name and under a loan also under my name. The decree called for her to refinance or sell before certain date and she did not. She was however responsible to make the payments.

I never signed the divorce decree (hence the default decree from court) and I never "quit claimed" the house to her since I was waiting for assurance that she would put the house under her name (which never came) As time went by, she was making payments on the house but as the economy turned sour she stopped making payments altogether. I stepped in because the house and loan were under my name and the bank was chasing me.

After the situation turned sour for me as well, I decided to contact lawyers to help me out with this issue. They quickly found out that she had signed a "disclaimer deed" (which I was not aware of since she was in real estate and she worked the loan...little did I know, and hey, she was my wife...) Anyway, lawyers told me she had no real option as:

1) Default Divorce Decree is rendered invalid as the disclaimer deed was not mentioned and I was not in agreement (nor was the bank)
2) I did not quit claimed the house over ot her
3) Title and Loan are still under my name


Now she is claiming that the house is still "hers" and that if not she will take me to court for the money she paid. She is also using that divorce decree as a sword everytime she talks to somebody regarding the house although the title is not in her name, nor the loan, and there is a disclaimer deed.

- Does she have a case for anything (money she paid, divorce decree, title, etc.)?
- She threatening to go to the house tenants. How can I prevent her from harassing the tenants?
- Can I do anything to render the decree invalid? Is there a document I can get from court?

Thanks...
Were those family law attorneys? Did you fully disclose the terms of the divorce?

I agree with Misto. The divorce decree made the house her property. Its irrelevant that she signed a disclaimer deed and that you did not sign a quit claim deed. It is also irrelevant that the loan is still in your name and that the title has not been transferred.

You have illegally taken possession of the house and have illegally rented it out.

There were legal actions that you could have taken to rectify the situation, but instead of taking those legal options you acted unilaterally.

You need a consult with a family law attorney ASAP.
 

MercuryChrome

Junior Member
What Lawyers said...

Thanks for your responses, here is what the lawyers said:

"after checking the records... we confirmed that the subject property was deed solely to you, that it remains in you sole name as your sole and separate property and that WIFE had dule executed a Disclaimer Deed in your favor to the subject property.... since your marriage was terminated pursuant to a Default Decree of Dissolution of Marriage (versus a Consent Decree or Post-trial Decree of Dissolution) the court never had jurisdiction to enter any unilateral orders regarding your sole and separate property and, therefore, the provision requiring to quitclaim HOUSE is void and unenforceable.... In view of the foregoing, you have the right to refinance the home or sell it as you may determine, without the need for authorization from the court"

I did not take posession on the house until after this response from the lawyers. We covered all the options, including taking her back to court (which is what I wanted) but this is what they recommended.

All I wanted to do is to avoid having a foreclosure on my credit and my ex dissapeared for 7 months only to resurface now...

Please help. Does she have a case?
 

LdiJ

Senior Member
Thanks for your responses, here is what the lawyers said:

"after checking the records... we confirmed that the subject property was deed solely to you, that it remains in you sole name as your sole and separate property and that WIFE had dule executed a Disclaimer Deed in your favor to the subject property.... since your marriage was terminated pursuant to a Default Decree of Dissolution of Marriage (versus a Consent Decree or Post-trial Decree of Dissolution) the court never had jurisdiction to enter any unilateral orders regarding your sole and separate property and, therefore, the provision requiring to quitclaim HOUSE is void and unenforceable.... In view of the foregoing, you have the right to refinance the home or sell it as you may determine, without the need for authorization from the court"

I did not take posession on the house until after this response from the lawyers. We covered all the options, including taking her back to court (which is what I wanted) but this is what they recommended.

All I wanted to do is to avoid having a foreclosure on my credit and my ex dissapeared for 7 months only to resurface now...

Please help. Does she have a case?
I certainly think that she does. The time to have made the argument that the attorneys are talking about was before the judge made the order, or shortly after the judge made the order, as an appeal.
 

mistoffolees

Senior Member
Thanks for your responses, here is what the lawyers said:

"after checking the records... we confirmed that the subject property was deed solely to you, that it remains in you sole name as your sole and separate property and that WIFE had dule executed a Disclaimer Deed in your favor to the subject property.... since your marriage was terminated pursuant to a Default Decree of Dissolution of Marriage (versus a Consent Decree or Post-trial Decree of Dissolution) the court never had jurisdiction to enter any unilateral orders regarding your sole and separate property and, therefore, the provision requiring to quitclaim HOUSE is void and unenforceable.... In view of the foregoing, you have the right to refinance the home or sell it as you may determine, without the need for authorization from the court"

I did not take posession on the house until after this response from the lawyers. We covered all the options, including taking her back to court (which is what I wanted) but this is what they recommended.

All I wanted to do is to avoid having a foreclosure on my credit and my ex dissapeared for 7 months only to resurface now...

Please help. Does she have a case?
Let's make a deal. You and your attorneys get the story straight and then come back and ask for advice.

First you claimed the decree gave her the house, now you're claiming YOU got it.

Figure out what the facts are and then start over.
 

LdiJ

Senior Member
Let's make a deal. You and your attorneys get the story straight and then come back and ask for advice.

First you claimed the decree gave her the house, now you're claiming YOU got it.

Figure out what the facts are and then start over.
Actually he isn't....these are the facts that he is claiming...that apparently some attorneys stated:

When he purchased the house, she signed a disclaimer deed (which is automatically necessary if a married person buys a house without their spouse on the deed or mortgage)

The house has not been transferred into her name yet because it has not been refinanced and he has not signed a quit claim deed. (and he is in contempt for that, although I agree that it was wise not to sign it until he was off the mortgage)

That because the divorce was a default decree, rather than an agreement that the judge did not have jurisdiction to award her the house, making the award void and unenforceable. I also disagree with this because it was a voluntary default on his part, which is a presumed agreement on his part. Otherwise he should have responded to the divorce, or filed to set aside the default judgement and then appealed if the judge denied that.

So, he isn't changing his story, he is explaining why he thought that what he did was legit.

I still don't agree..but it will be up to a judge to decide. He may end up with possession of the house, but I can almost guarantee that he is going to owe her the equity.
 

mistoffolees

Senior Member
So, he isn't changing his story, he is explaining why he thought that what he did was legit.
His first post:
"my wife was awarded a home that was under my name and under a loan also under my name. The decree called for her to refinance or sell before certain date and she did not. "

Most recent post:
"we confirmed that the subject property was deed solely to you, that it remains in you sole name as your sole and separate property and that WIFE had dule executed a Disclaimer Deed in your favor to the subject property"

Sure seems like a change in his story to me.
 

LdiJ

Senior Member
His first post:
"my wife was awarded a home that was under my name and under a loan also under my name. The decree called for her to refinance or sell before certain date and she did not. "

Most recent post:
"we confirmed that the subject property was deed solely to you, that it remains in you sole name as your sole and separate property and that WIFE had dule executed a Disclaimer Deed in your favor to the subject property"

Sure seems like a change in his story to me.
Nah...its a real estate attorney who researched the deed and the original purchase...and rendered an opinion based on that. Of course the deed shows as his sole and separate property because he never signed a quit claim deed and because she never refinanced.
 

MercuryChrome

Junior Member
Decree Text

LdiJ got it right.

Lawyers are a family law practice in Arizona. They had decree as well. Here what the divorce decre reads on the house in question...

"Property to wife. The following community property and debts shall be given to Wife as her sole and separate propery and her sole and separate debt:

d. Real property.

RESIDENCE ONE located at X. This will occur when the following conditions have been met: Both this residence, as well as RESIDENCE TWO, which will become the sole property of the Respondend/Husband, will be refinanced by the parties and the equity from both homes will be split evenly, 50/50. This will ocurr for both residences on or before May, 2007. At that time the parties will Quit Claim each residence to the other (Residence Two to Husband and Residence One to wife). Both parties must agree and abide by making all payments for the homes, any vehicles owed on and any owed debt on time and in full so as to avoid any problems or added costs with the planned refinancing of the home. THIS NEXT PART WAS STRIKETHROUGHED, DO NOT KNOW BY WHO. If either party refuses to refinance by May 2007 or do not keep current on any of the aforementioned payments that will be deemed a violation of this Decree and comtempt charges can be brought against the offending party."

And here is what happened:

- RESIDENCE TWO was sold by me and equity was split evenly before May 2007.

- RESIDENCE ONE She refused to refinance 100% of the loan or sell this house. Hence it was not Quit Claimed by me, perhaps the only thing that is keeping me from owning the bank $200,000 of thin air. She never made full payments and never lived in the house as it was rented. House was then 10 days away from foreclosing on my credit (they reported ME to credit Bureau so from 800 I am now at 650). Moreover, there was a lease returned vehicle she kept and never paid lease return dues (they reported ME to credit bureau as well). I was sued by HOA on late payments. I had to pay for all damages done to house by a stream of renters, etc.... And she refused to sell or refinance. This is where I stepped in and hired lawyers. Currently, house has negative equity as its value is now under purchase loan amount, I have paid all mortgage lat fees and negotiated with HOAs. I offered her $10,000 to go away when house is under for more than $25,000 and she asked for $25,000. If I short sale my credit is screwed.

- TO ALL OF THIS the lawyers did research with decree in hand and said what I mentioned on my other post...

I think these are all the facts. Your input is appreciated. Cheers
 
Last edited:

mistoffolees

Senior Member
Sorry, but I think you could be in a world of trouble.

You have a decree which states that she gets the house if she meets certain conditions. It further states that if she doesn't meet the conditions, she can be held in contempt.

She did not meet the conditions.

Instead of filing for contempt, which you had the right to do, you stepped in and took possession of the house and rented it out.

While she is clearly in contempt, I don't see anything in your court order which permits the type of self-remedy you've attempted.

You really need to see a divorce attorney - NOT a real estate attorney.
 

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