• FreeAdvice has a new Terms of Service and Privacy Policy, effective May 25, 2018.
    By continuing to use this site, you are consenting to our Terms of Service and use of cookies.

Virginia divorce property settlement from 23 yrs ago

Accident - Bankruptcy - Criminal Law / DUI - Business - Consumer - Employment - Family - Immigration - Real Estate - Tax - Traffic - Wills   Please click a topic or scroll down for more.

anna_b

Junior Member
Virginia.

1986 - My father divorced my step mother. At the time, the judge awarded her no support, but left her on the house title and continued her "rights of survivorship."

April 2009 - My father died. I am administrator of his estate.

May 2009 - His ex-wife has come forward to get her share.

I contacted an attorney who advised that under VA code section 20-111, the title was converted to tenants in common. According to the attorney, that means that she is technically entitled to 50%. However, that amount is diminished by half of the mortgage, taxes, insurance and interest not paid since they divorced. Which is a considerable sum since he had a 13% interest rate. It supposedly also includes half of the renovations & half of the agent fees to sell.

However, the attorney said that on her side, she is entitled to half of the fair rental value since 1986. He mentioned interest, and this is the part I need to verify. Is she entitled to interest over 23 years, and if so, is it compounded annually or monthly? I didn't get this part, because I would think she'd be equally responsible for the interest of mortgage, taxes and insurance which is a lot more than the fair rental value.

Can someone please confirm:

a) is she entitled to interest on fair rental value
b) if so, is it compounded annually or monthly
c) is she responsible for interest on unpaid mortgage, taxes and insurance
d) is there a standard interest rate applied in property settlement
e) is there a standard percentage increase in determining fair rental value

thanks in advance!
 


LdiJ

Senior Member
Virginia.

1986 - My father divorced my step mother. At the time, the judge awarded her no support, but left her on the house title and continued her "rights of survivorship."

April 2009 - My father died. I am administrator of his estate.

May 2009 - His ex-wife has come forward to get her share.

I contacted an attorney who advised that under VA code section 20-111, the title was converted to tenants in common. According to the attorney, that means that she is technically entitled to 50%. However, that amount is diminished by half of the mortgage, taxes, insurance and interest not paid since they divorced. Which is a considerable sum since he had a 13% interest rate. It supposedly also includes half of the renovations & half of the agent fees to sell.

However, the attorney said that on her side, she is entitled to half of the fair rental value since 1986. He mentioned interest, and this is the part I need to verify. Is she entitled to interest over 23 years, and if so, is it compounded annually or monthly? I didn't get this part, because I would think she'd be equally responsible for the interest of mortgage, taxes and insurance which is a lot more than the fair rental value.

Can someone please confirm:

a) is she entitled to interest on fair rental value
b) if so, is it compounded annually or monthly
c) is she responsible for interest on unpaid mortgage, taxes and insurance
d) is there a standard interest rate applied in property settlement
e) is there a standard percentage increase in determining fair rental value

thanks in advance!
The first part of what you posted could possibly indicate that she is entitled to full ownership of the house. You stated that the divorce decree states that she is to continue on the title with "rights of surviorship". Yes, I understand that an attorney told you that they became "tenents in common" after the divorce, but the divorce decree specifically states something different. "rights of survivorship" specially means that the joint title holder receives full ownership if the other title holder passes away.

If the attorney didn't clearly understand how the divorce decree was worded, you may not have received accurate advice.

Even if the attorney is correct, you have an additional problem. She is on the title to the house. She is at least a 1/2 owner of the house and you cannot sell it without her cooperation, unless you file a partition suit. Partition suits are very expensive, could eat up a great deal of the equity in the home, and a judge could very well award her 1/2, without taking any of your calculations into consideration...simply because she is an owner of the property.

However, if you are going to hold her responsible for 1/2 of the mortgage, property taxes, insurance etc, then she absolutely is entitled to 1/2 of fair market value rent, interest compounded monthly AND compensation for having her credit tied up for 23 years....and you may have a hard time figuring out fair market rent over the last 23 years.

Personally, if it were me, I would be weighing the cost of fighting this out with her, and the chance that she could be the full owner of the home, versus simply giving her 1/2 of the equity if she is willing to accept that.

In addition, I recommend a face to face meeting with an attorney, with a copy of the divorce decree in hand, so that the attorney can review it. Based on what you wrote, there is a very real possibility that she is entitled to full ownership of the house. So you really do need an attorney to review the actual divorce decree.
 

anna_b

Junior Member
Hi Ohiogal,

The title says they are tenants by the entirety, with the right of survivorship as at common law. I think that's what you're looking for.

LdiJ,

I have spoken with two attorneys. Both have said my sister and I were still entitled to half. The last attorney is a divorce attorney and quoted the code 20-111, stating that titles from divorces after a certain date (I don't have my notes so I'm not saying it right) were were converted to tenants in common. I'm pretty comfortable with both of them agreeing that, at best, she's entitled to half. I showed all of the documentation for divorce decree and title to both. I did meet face to face with teh first guy, but opted on a second opinion (I'm out of state) since the first guy wasn't a divorce attorney. I faxed him the documents.

I am, however worried about the second half you mentioned. I have done some preliminary figures based on half fair rental value compounded annually and monthly at 6% annual, and because my dad had such a high interest rate, it doesn't really counter balance the unpaid mortgage/insurance and taxes enough for her to make much money off of it after attorney fees, if the judge takes these things into consideration. What concerns me is if the judge decides to ignore the part where she didn't pay anything on the house and gives her 50% anyway. I'm trying to get her to settle so neither of us has to pay for a long legal battle.

Also, if she can charge monthly compounded interest, can't we charge that of her as well on unpaid mortgage? It seems a little lopsided if not.

My last question is, where can I research similar cases and the law online or elsewhere? I want to know what my chances are before I make any tough decisions. I'm just now negotiating with the ex wife.

Thanks again for your help
 

LdiJ

Senior Member
Hi Ohiogal,

The title says they are tenants by the entirety, with the right of survivorship as at common law. I think that's what you're looking for.

LdiJ,

I have spoken with two attorneys. Both have said my sister and I were still entitled to half. The last attorney is a divorce attorney and quoted the code 20-111, stating that titles from divorces after a certain date (I don't have my notes so I'm not saying it right) were were converted to tenants in common. I'm pretty comfortable with both of them agreeing that, at best, she's entitled to half. I showed all of the documentation for divorce decree and title to both. I did meet face to face with teh first guy, but opted on a second opinion (I'm out of state) since the first guy wasn't a divorce attorney. I faxed him the documents.

I am, however worried about the second half you mentioned. I have done some preliminary figures based on half fair rental value compounded annually and monthly at 6% annual, and because my dad had such a high interest rate, it doesn't really counter balance the unpaid mortgage/insurance and taxes enough for her to make much money off of it after attorney fees, if the judge takes these things into consideration. What concerns me is if the judge decides to ignore the part where she didn't pay anything on the house and gives her 50% anyway. I'm trying to get her to settle so neither of us has to pay for a long legal battle.

Also, if she can charge monthly compounded interest, can't we charge that of her as well on unpaid mortgage? It seems a little lopsided if not.

My last question is, where can I research similar cases and the law online or elsewhere? I want to know what my chances are before I make any tough decisions. I'm just now negotiating with the ex wife.

Thanks again for your help
Here is the thing. Legally, it does not matter if she paid half of the mortgage or didn't pay half of the mortgage, its at least 50% her property...period. Therefore its quite possible that you both will spend a large amount of money to hire lawyers and have a judge decide, and she will end up with 50%. The divorce stated that she retained her ownership.

That is the part that I think you are having a hard time grasping. She could move into the house tommorrow, decide not to sell at all, and live there for the rest of her life, unless you file an expensive partition suit to force the sale of the house. You don't control the house. She does. She is an owner of the property, you are an inheritor of 1/2.

For every penny she spends on an attorney, you will end up spending an equal amount.

No, you cannot charge her interest for the unpaid mortgage, because the unpaid mortgage already included interest.

You are also ignoring the fact that your father had use of the home, and she did not, and she is entitled to be compensated for the fact that her credit was tied up for 23 years. She could also argue that your father got the full benefit of deducting the interest and property taxes from his taxes, and she did not, and that should be factored in as well.

So you see, any decent attorney could bring it right back to 50%. Also, if retaining her ownership was part of the property settlement in their divorce, (would have to read the divorce paperwork to understand exactly how that fit in) that could be reason alone for the judge to simply say that she was entitled to 50%.

You will both walk away with more money if you simply don't fight her receiving 50%.
 

Ohiogal

Queen Bee
.

That is the part that I think you are having a hard time grasping. She could move into the house tommorrow, decide not to sell at all, and live there for the rest of her life, unless you file an expensive partition suit to force the sale of the house. You don't control the house. She does. She is an owner of the property, you are an inheritor of 1/2.
As an inheritor she also becomes an owner and her rights are EQUAL to the other owner's. She is NOT subservient to the other owner just because she only became an owner through inheritance.
 

LdiJ

Senior Member
As an inheritor she also becomes an owner and her rights are EQUAL to the other owner's. She is NOT subservient to the other owner just because she only became an owner through inheritance.
Once its been through probate. Her inherited ownership is not yet perfected. Its a very slight distinction, but enough of a distinction that the ex wife would be temporarily in a more controlling position.

The point that I am really trying to make is that I don't think that the OP really grasps that the ex wife actually owns the property (1/2) and what that means.

OP is viewing it as her father's house, and that the ex wife has only some "loophole" interest in it that OP is trying to whittle away.
 

Ohiogal

Queen Bee
Once its been through probate. Her inherited ownership is not yet perfected. Its a very slight distinction, but enough of a distinction that the ex wife would be temporarily in a more controlling position.

The point that I am really trying to make is that I don't think that the OP really grasps that the ex wife actually owns the property (1/2) and what that means.

OP is viewing it as her father's house, and that the ex wife has only some "loophole" interest in it that OP is trying to whittle away.
Thought it went through probate already. But yes, the ex wife has an OWNERSHIP interest which is not a loophole interest and OP cannot whittle that away for points you mentioned.
 

anna_b

Junior Member
LdiJ,

Thank you for your time. I'm a bit puzzled by your response, which appear to be a little forceful and almost as if you're taking this personally. I clearly stated that we were entitled to half. That implies that the ex wife is entitled to the other half (well, at most from what we were advised.) I looked up teh code and it clearly states that the tenancy in entirety is converted to tenancy in common after divorce.

As far as whittling away, well, that's what the attorney advised in the event that the ex wife doesn't accept an offer and files a partition suit. That's our last resort. Considering that we'll have to throw another 20,000-30,000 in to renovate and pay off the mortgage balance, I'm not willing to whittle away our half. This is why I'm asking all of these questions to know better how to proceed.

Thank you again. I guess I just need to choose an attorney at this point.
 

LdiJ

Senior Member
LdiJ,

Thank you for your time. I'm a bit puzzled by your response, which appear to be a little forceful and almost as if you're taking this personally. I clearly stated that we were entitled to half. That implies that the ex wife is entitled to the other half (well, at most from what we were advised.) I looked up teh code and it clearly states that the tenancy in entirety is converted to tenancy in common after divorce.

As far as whittling away, well, that's what the attorney advised in the event that the ex wife doesn't accept an offer and files a partition suit. That's our last resort. Considering that we'll have to throw another 20,000-30,000 in to renovate and pay off the mortgage balance, I'm not willing to whittle away our half. This is why I'm asking all of these questions to know better how to proceed.

Thank you again. I guess I just need to choose an attorney at this point.
You are misconstruing factual for forceful.

If you are truly accepting that she is entitled to half, and she agrees that she is entitled to half, then the situation is quite simple.

Sales price minus mortgage, minus cost of renovations, minus selling costs equals the portion to be split in half. It would not be cost effective to mount a suit regarding the house if you can agree that she is entitled to half.

However...if there is a chance, at all, that she would be entitled to the entire property, then you should NOT pay off the mortgage or spend money on renovations.

While I understand that you have spoken to attorneys, I am a little concerned if the wording of the divorce decree actually states that she was to have the right of survivorship. The purpose of the change in the law, was to ensure that in certain situations a divorced spouse did not end up owning the entire marital home, just because they were left on the title.

However, if a divorce decree specifically says that the spouse is to have the right of survivorship, that is a contractual agreement that should override any state law...particularly if the property settlement shows a reason for it being done that way. That is why I am hoping that the attorneys you consulted thoroughly examined the divorce decree.

Attorneys make a LOT of money off of partition suits due to the time and effort that has to be put into them. Make sure that you ask very pointed questions to ensure that the attorney tells you all of the potential risks before you rule out settling the matter with stepmom, and before you make the decision to take it to court.
 

Find the Right Lawyer for Your Legal Issue!

Fast, Free, and Confidential
data-ad-format="auto">
Top