Can ex-wife access my house since we are both on the title still?

[KCGregg]

State of KS - My ex and I divorced last October and she moved to Denver. That is now her legal residence. She and I are both on the title of the house yet our decree clearly states I am responsible for everything relating to the house (mortgage, HOA dues, insurance, repairs, etc.) During a heated conversation a few nights ago she made some reference to her being able to "access" the house anytime she wants since she is on the title? I am not entirely sure that is true since she is not a legal resident. I mean, my father owns rental homes and he is on the title but that does mean he can just walk right in whenever he wants, right?

 

[mistoffolees]

State of KS - My ex and I divorced last October and she moved to Denver. That is now her legal residence. She and I are both on the title of the house yet our decree clearly states I am responsible for everything relating to the house (mortgage, HOA dues, insurance, repairs, etc.) During a heated conversation a few nights ago she made some reference to her being able to "access" the house anytime she wants since she is on the title? I am not entirely sure that is true since she is not a legal resident. I mean, my father owns rental homes and he is on the title but that does mean he can just walk right in whenever he wants, right?

Unless there is a order giving you exclusive use of the marital home or transferring ownership to you, then she has the right to access it at any time. It's not YOUR (singular) home, it's YOUR (plural) home.

Your father can't simply walk into rental homes any time he wants because he presumably gave that right up when he signed a lease with the tenants. Did your ex sign away that right?

So tell us exactly what the court order says about the home- word for word, not your interpretation (leave out the names).

 

[KCGregg]

Added info

The wording in the decree itself says:

"The house or land is assigned to HUSBAND [me] who shall be responsible for the payment of the mortgage loan and shall hold the other harmless on that debt."

Now, we attached, and had recorded a "Letter of Agreement & Understanding" which included the following:

1) On or about September 18, 2010, which is the date JANE intends to move to Denver, Gregg and his two minor children will continue to reside in the residence.
2) Beginning with the October, 2010 mortgage payment, Gregg will be responsible for all future mortgage payments, HOA dues, maintenance of the property and any household related expenses.
3) From the date of the final dissolution of marriage between Gregg and JANE (expected to be in December 2010), Gregg has five years to attempt to refinance the residence out from JANE’s name and into his own so he will eventually become the sole owner of the property.
4) Gregg can, if necessary, rent out any portion of the house to a person of good character without JANES’s permission as long as Gregg physically resides in the residence.
5) Gregg is free to make any cosmetic or structural upgrades or changes to the residence without JANES’s permission as long as these changes improve and/or increase the value of the property.
6) Gregg is responsible for any repairs needed to the residence regardless of the cause.
7) JANE will continue to claim all of the mortgage interest, as reported by Bank of America, on all future income tax returns until Gregg is able to refinance the mortgage under his own name or until the residence is sold to another party.

 

[LdiJ]

The wording in the decree itself says:

"The house or land is assigned to HUSBAND [me] who shall be responsible for the payment of the mortgage loan and shall hold the other harmless on that debt."

Now, we attached, and had recorded a "Letter of Agreement & Understanding" which included the following:

1) On or about September 18, 2010, which is the date JANE intends to move to Denver, Gregg and his two minor children will continue to reside in the residence.
2) Beginning with the October, 2010 mortgage payment, Gregg will be responsible for all future mortgage payments, HOA dues, maintenance of the property and any household related expenses.
3) From the date of the final dissolution of marriage between Gregg and JANE (expected to be in December 2010), Gregg has five years to attempt to refinance the residence out from JANE’s name and into his own so he will eventually become the sole owner of the property.
4) Gregg can, if necessary, rent out any portion of the house to a person of good character without JANES’s permission as long as Gregg physically resides in the residence.
5) Gregg is free to make any cosmetic or structural upgrades or changes to the residence without JANES’s permission as long as these changes improve and/or increase the value of the property.
6) Gregg is responsible for any repairs needed to the residence regardless of the cause.
7) JANE will continue to claim all of the mortgage interest, as reported by Bank of America, on all future income tax returns until Gregg is able to refinance the mortgage under his own name or until the residence is sold to another party.

Interesting.

The first bolded portion indicates basically that you have exclusive use of the home, therefore no, she cannot access it any time that she likes. You can change the locks if necessary to keep her from doing so.

The second bolded portion is completely illegal. Tax law prohibits someone from claiming mortgage interest on a tax return unless they are 1) legally obligated to make the payment and 2) ACTUALLY make the payment.

She is legally obligated under the mortgage to make the payment, but she is not actually making the payment. Therefore, under the tax code she CANNOT claim the mortgage interest. Interestingly enough you cannot claim the mortgage interest because you signed a legal agreement that she can claim it, therefore neither of you can legally claim the mortgage interest at this point.

 

[KCGregg]

I am fine with her claiming the mortgage interest. She lived in the house 4 years before I moved in with my kids and she feels "entitled" to something in return. Her contention was also that it is her name on the mortgage so the 1098 mortgage statement has her name on it. However, I was also told that I can claim the mortgage interest even if I am not receiving a 1098 if in fact the mortgage is being paid by me. I believe the IRS has a form where mortgage interest can be claimed if a 1098 was not provided but that is a whole different topic entirely.

 

[LdiJ]

I am fine with her claiming the mortgage interest. She lived in the house 4 years before I moved in with my kids and she feels "entitled" to something in return. Her contention was also that it is her name on the mortgage so the 1098 mortgage statement has her name on it. However, I was also told that I can claim the mortgage interest even if I am not receiving a 1098 if in fact the mortgage is being paid by me. I believe the IRS has a form where mortgage interest can be claimed if a 1098 was not provided but that is a whole different topic entirely.

It doesn't work the way that you are thinking but I am not going to hijack your thread with a long discussion on taxes.

So you were awarded a house that she owned PRIOR to your marriage? That is odd and usual in the extreme.

 

[Just Blue]

It doesn't work the way that you are thinking but I am not going to hijack your thread with a long discussion on taxes.

So you were awarded a house that she owned PRIOR to your marriage? That is odd and usual in the extreme.

Agreed......

 

[KCGregg]

I'll take any advice I can get so feel free to "hijack" away

It worked like this. When I moved into her house with my 2 kids (her suggestion) the mortgage and title was under her name. When never got around to adding me to it until divorce time came around. Once we let our insurance agent know we were divorcing, he said it would change the homeowner's insurance into renter's insurance since my ex was the only one of the title. He suggested she quit claim and add me to the title so she could move and the insurance would remain the same. There was also the concern that Bank of America would now view the house as a rental property since I was not on the title and there was the possibility they could call the note do. So, since she wanted me to live here with the kids we added my name to the title. The mortgage is under her name; the title is under both of our names. The insurance was to have been under both of our names but they failed to add me and when I went to have myself added by providing the quit claim they did only for her to turn around and have me removed. This was due to her being the primary insured. Funny...the decree says I am responsible for all house related expenses, such as the insurance, which is paid from my mortgage payment yet she apparently has total control over it.

 

[LdiJ]

I'll take any advice I can get so feel free to "hijack" away

It worked like this. When I moved into her house with my 2 kids (her suggestion) the mortgage and title was under her name. When never got around to adding me to it until divorce time came around. Once we let our insurance agent know we were divorcing, he said it would change the homeowner's insurance into renter's insurance since my ex was the only one of the title. He suggested she quit claim and add me to the title so she could move and the insurance would remain the same. There was also the concern that Bank of America would now view the house as a rental property since I was not on the title and there was the possibility they could call the note do. So, since she wanted me to live here with the kids we added my name to the title. The mortgage is under her name; the title is under both of our names. The insurance was to have been under both of our names but they failed to add me and when I went to have myself added by providing the quit claim they did only for her to turn around and have me removed. This was due to her being the primary insured. Funny...the decree says I am responsible for all house related expenses, such as the insurance, which is paid from my mortgage payment yet she apparently has total control over it.

Your wife gifted you 50% ownership of a home that was totally her property over insurance?

I am sitting here shaking my head. Unless the home had no equity to speak of your wife got seriously conned. I can understand her at least wanting to get the deduction for the mortgage interest and property taxes, but again, that agreement means nothing because she cannot legally claim them...nor can you.

 

[mistoffolees]

[/B]

Interesting.

The first bolded portion indicates basically that you have exclusive use of the home, therefore no, she cannot access it any time that she likes. You can change the locks if necessary to keep her from doing so.

The second bolded portion is completely illegal. Tax law prohibits someone from claiming mortgage interest on a tax return unless they are 1) legally obligated to make the payment and 2) ACTUALLY make the payment.

She is legally obligated under the mortgage to make the payment, but she is not actually making the payment. Therefore, under the tax code she CANNOT claim the mortgage interest. Interestingly enough you cannot claim the mortgage interest because you signed a legal agreement that she can claim it, therefore neither of you can legally claim the mortgage interest at this point.

That is absolutely 100% correct.

The attorney (or judge) who dreamed this up should be publicly ridiculed and flogged.

 

[KCGregg]

Unless the home had no equity to speak of your wife got seriously conned. I can understand her at least wanting to get the deduction for the mortgage interest and property taxes, but again, that agreement means nothing because she cannot legally claim them...nor can you.

I am sorry but I do take some offense to this remark but I also understand it is hard to know everything through a thread. The decision to "gift" the house to me was her own. More than once I suggested me and my kids move out and she sells the house but she didn't want to uproot everyone. Second, the mortgage was upside down, with her owing 30k more than the value. Third, she receives positive credit bureau reporting from me making timely mortgage payments.

Let me be clear. I am not trying to claim the mortgage interest. I just didn't know she couldn't do it either. I will certainly call the IRS on this one tomorrow.

 

[Ohiogal]

I am sorry but I do take some offense to this remark but I also understand it is hard to know everything through a thread. The decision to "gift" the house to me was her own. More than once I suggested me and my kids move out and she sells the house but she didn't want to uproot everyone. Second, the mortgage was upside down, with her owing 30k more than the value. Third, she receives positive credit bureau reporting from me making timely mortgage payments.

Let me be clear. I am not trying to claim the mortgage interest. I just didn't know she couldn't do it either. I will certainly call the IRS on this one tomorrow.

If the bank finds out about the deed change, watch them call the mortage due in full IMMEDIATELY since this could be considered a transfer which is not allowed under the terms of the mortgage. Hope you have the ability to get that because if the bank finds out they WILL call the mortgage due in full.

 

[LdiJ]

I am sorry but I do take some offense to this remark but I also understand it is hard to know everything through a thread. The decision to "gift" the house to me was her own. More than once I suggested me and my kids move out and she sells the house but she didn't want to uproot everyone. Second, the mortgage was upside down, with her owing 30k more than the value. Third, she receives positive credit bureau reporting from me making timely mortgage payments.

Let me be clear. I am not trying to claim the mortgage interest. I just didn't know she couldn't do it either. I will certainly call the IRS on this one tomorrow.

I did say "unless the home had no equity to speak of" and since the mortgage is upside down, there is clearly no equity.

You can call the IRS if you like, but the answer remains the same. In order to be able to claim mortgage interest you must be both legally obligated for the loan AND must actually make the payments.

Your ex is legally obligated to make the payments, but is not actually making them.

You are not legally obligated (except via the divorce decree) to make the payments, but are making them. On top of that the divorce decree states that you will not claim the mortgage interest.

That means that neither one of you are eligible to claim the interest.

 

[KCGregg]

I wanted to let those of you who responded to this post information I received from calling the IRS. They had me go through a means test to see if my wife is allowed to claim the mortgage interest. She cannot claim this as her main house since she does not live in it; she cannot claim it as a 2nd house since she does not live in it, pay the mortgage or rents it out. Therefore it is listed as "other house" and since she does not pay the mortgage, rents it out or lives in it she cannot claim the mortgage interest regardless of what the divorce decree says. Federal law supersedes a divorce decree. Furthermore, they had me go through the means test and I do qualify for the mortgage interest deduction. This was verified during a consultation with an attorney yesterday.

 

[Ohiogal]

I wanted to let those of you who responded to this post information I received from calling the IRS. They had me go through a means test to see if my wife is allowed to claim the mortgage interest. She cannot claim this as her main house since she does not live in it; she cannot claim it as a 2nd house since she does not live in it, pay the mortgage or rents it out. Therefore it is listed as "other house" and since she does not pay the mortgage, rents it out or lives in it she cannot claim the mortgage interest regardless of what the divorce decree says. Federal law supersedes a divorce decree. Furthermore, they had me go through the means test and I do qualify for the mortgage interest deduction. This was verified during a consultation with an attorney yesterday.

Except for the fact that YOU CLAIMING the mortgage interest deduction will put you in CONTEMPT of the COURT ORDER. And yes, you could be found in contempt. Her claiming it could cause her to be found in violation of federal law. But neither of you can actually claim it due to both the law and court order.