Mr Nice Guy

[Mr Nice Guy]

Well, that's behind you. I would offer to take the home off her hands if she signs a quit claim and a stipulation for the court to show the change. If she balks, you may have to agree to give her 1/2 of the current equity (after subtracting putative selling costs), if any. If she refuses that, then you'll probably have to go to court to ask the judge to order it. However, you are legally obligated to ensure that the mortgage is paid in the meantime (although you could probably sue her to recover the money if you don't end up keeping the house).

So IF she agrees to sign a quit claim deed do I have to go back to court or can I just present it to my bank and do the refinance getting her off the mortgage and deed?

Suing her for any money paid will get me nowhere she has no income. You can't get something someone doesn't have.

 

[mistoffolees]

So IF she agrees to sign a quit claim deed do I have to go back to court or can I just present it to my bank and do the refinance getting her off the mortgage and deed?

I would go back to court. If you don't, she can come after you for contempt later. A written authorization from her would help, but it would not absolutely guarantee that you'd be protected.

It isn't a big deal. If she agrees, draft a stipulation that tells the court that you've both agreed to change the property division and what the new terms are. Submit it as a stipulation. It shouldn't be very expensive.

Suing her for any money paid will get me nowhere she has no income. You can't get something someone doesn't have.

True, but just because she doesn't have money now doesn't mean she never will.

 

[Mr Nice Guy]

Thank You for all the advice, if anyone else would like to add to the advice already listed I am still open for all the help I can get in this matter.

 

[Mr Nice Guy]

Sorry to keep posting but I keep coming up with ideas, don't know if they would work legally so have to keep asking.

What if the ex signs and notarizes that she will allow me to live in the house until we can get this worked out, would that be legal for me to then move in the house and make the mortgage payments? I am at my wits end on this, I do not have the money to fight this out with a lawyer and neither does she. I do not have the money to pay my rent and the mortgage but don't want the mortgage to go unpaid either. HELP

 

[mistoffolees]

Sorry to keep posting but I keep coming up with ideas, don't know if they would work legally so have to keep asking.

What if the ex signs and notarizes that she will allow me to live in the house until we can get this worked out, would that be legal for me to then move in the house and make the mortgage payments? I am at my wits end on this, I do not have the money to fight this out with a lawyer and neither does she. I do not have the money to pay my rent and the mortgage but don't want the mortgage to go unpaid either. HELP

Yes, if you have a signed agreement from your ex to live in the house until it works out, you'd be reasonably safe. It wouldn't be perfect, but the risk would be reasonably low.

 

[LdiJ]

Yes, if you have a signed agreement from your ex to live in the house until it works out, you'd be reasonably safe. It wouldn't be perfect, but the risk would be reasonably low.

Misto, I disagree. He would become her tenant at that point, (paying the mortgage as rent) therefore he would be totally safe. I also disagree that he needs to go to court on the house if she agrees to turn it over to him. She would be essentially selling him the house through the process of the quit claim and the re-fi. He cannot be held in contempt for her voluntarily selling him the house. There would be a regular "closing".

I am also not at all sure that he is firmly in contempt on the issue of the quit claim. It could be argued, the way that the order is worded, that the quit claim and re-fi were to happen simultaneously. He can state, without lying, that he had every intention of signing the quit claim simultaneous with her refinance. A judge may not consider that to be a willful violation of the court order.

 

[mistoffolees]

Misto, I disagree. He would become her tenant at that point, (paying the mortgage as rent) therefore he would be totally safe. I also disagree that he needs to go to court on the house if she agrees to turn it over to him. She would be essentially selling him the house through the process of the quit claim and the re-fi. He cannot be held in contempt for her voluntarily selling him the house. There would be a regular "closing".

That's certainly a possibility. If he wants to go that route, I would suggest that he actually make it into a sale where he is buying the house from her (even for $1.00).

I am also not at all sure that he is firmly in contempt on the issue of the quit claim. It could be argued, the way that the order is worded, that the quit claim and re-fi were to happen simultaneously. He can state, without lying, that he had every intention of signing the quit claim simultaneous with her refinance. A judge may not consider that to be a willful violation of the court order.

I really wish I had your magical ability to know what a court order says without ever seeing it.

We don't know that the order says that they are to happen simultaneously. OP said that the order simply said the the was to sign a quit claim and ex was to refinance. It is his BANK and financial advisors who are telling him to do it at the same time as refinancing. That is good advice, but that doesn't mean that he couldn't technically be held in contempt.

 

[Mr Nice Guy]

This exactly word for word (with names x'd out) Per the divorce decree. there is no legal description but just the address,

"The husband shall sign all forms or deeds necessary to take his name off the property. The wife shall refinance the home at once."

in another place in the decree it states,

"IT IS ORDERED AND DECREED that the wife, xxxx, shall pay, as a part of the division of the estate of the parties, and shall indemnify and hold the husband and his property harmless from any failure to so discharge, these items: W-1. The balance due, including principal, interest, tax, and insurance escrow, on the promissory note executed by xxxxx and xxxx, in the original principal sum payable to xxxx(bank where mortgage is owed) and secured by deed of trust on the real property awarded in this decree to the wife, which is recorded in the Deed of Trust Records of xxxxx county, Texas"


I also sent the ex, her attorney a letter stating that I would be more than happy to sign the deed over to the ex at the closing when she got financing.

right now I am just concerned with the house being vacant and no payments being made on it.

 

[mistoffolees]

This exactly word for word (with names x'd out) Per the divorce decree. there is no legal description but just the address,

"The husband shall sign all forms or deeds necessary to take his name off the property. The wife shall refinance the home at once."

in another place in the decree it states,

"IT IS ORDERED AND DECREED that the wife, xxxx, shall pay, as a part of the division of the estate of the parties, and shall indemnify and hold the husband and his property harmless from any failure to so discharge, these items: W-1. The balance due, including principal, interest, tax, and insurance escrow, on the promissory note executed by xxxxx and xxxx, in the original principal sum payable to xxxx(bank where mortgage is owed) and secured by deed of trust on the real property awarded in this decree to the wife, which is recorded in the Deed of Trust Records of xxxxx county, Texas"


I also sent the ex, her attorney a letter stating that I would be more than happy to sign the deed over to the ex at the closing when she got financing.

right now I am just concerned with the house being vacant and no payments being made on it.

If I were you, I'd also send them an offer to buy the house for $1 along with release of any claims they have against the house to save them from having to deal with foreclosure and contempt.

 

[Mr Nice Guy]

This is the definition of "at once" I found in the dictionary— at once
1
: at the same time : simultaneously
2
: immediately
3
: 2both <at once funny and sad>

...so my understanding is I can't do my part until she does her part, because she has not done her part which is immediately, which makes me say I have to endure the 3 definition funny for her sad for me!

 

[Mr Nice Guy]

If I end up having to get an attorney does it have to be one in the county the divorce was in? All of the lawyers in this town are great friends with each other. The one I went to last week said he and my ex's attorney age real good friends, which sounds like that would be a conflict of interest to me. Just wondering.

 

[mistoffolees]

This is the definition of "at once" I found in the dictionary— at once
1
: at the same time : simultaneously
2
: immediately
3
: 2both <at once funny and sad>

...so my understanding is I can't do my part until she does her part, because she has not done her part which is immediately, which makes me say I have to endure the 3 definition funny for her sad for me!

No. You're reading things that aren't there. Here's the wording you gave:

"The husband shall sign all forms or deeds necessary to take his name off the property. The wife shall refinance the home at once."

That says that you are expected to sign the forms. No timeline is given, so the court would interpret that as 'within a reasonable time'. Wife is ordered to do her part immediately.

The answer doesn't change no matter how much you try to spin this. Please re-read the earlier posts. You are both doing things that could possibly get a contempt charge. Wife is off the hook if she tried because the court can't hold her in contempt if she made an effort. You, OTOH, could have signed the paperwork - even though your attorney suggested otherwise. If anything, you are more likely to be in contempt than her, although I don't think it's likely.

Go back and read the advice you've been give. I don't feel like re-typing it.

 

[Mr Nice Guy]

I have read and reread the previous post numerous times, I did NOT have an attorney, she did! The ex has done nothing to try and get refinancing, she has NO income then or now.

I am trying to figure out what my legal recourse would be without filing contempt on her because I am full aware that I was ordered to sign the deed to her...but I am no fool...I sign without her getting financing, I am stuck with the mortgage when she defaults while the house sits empty and falls apart because no one is taking care of it.

I appreciate your comments, but I keep getting conflicting comments and I want to do the right/legal thing here without having to get an attorney that I can't afford if I pay the mortgage and rent and all the bills on both places.

 

[mistoffolees]

I have read and reread the previous post numerous times, I did NOT have an attorney, she did! The ex has done nothing to try and get refinancing, she has NO income then or now.

I am trying to figure out what my legal recourse would be without filing contempt on her because I am full aware that I was ordered to sign the deed to her...but I am no fool...I sign without her getting financing, I am stuck with the mortgage when she defaults while the house sits empty and falls apart because no one is taking care of it.

I appreciate your comments, but I keep getting conflicting comments and I want to do the right/legal thing here without having to get an attorney that I can't afford if I pay the mortgage and rent and all the bills on both places.

You've gotten a practical recommendation. Talk with her to see if you can take the house off her hands since she can't afford it. Work out a deal. Everyone will be happy.

 

[LdiJ]

That's certainly a possibility. If he wants to go that route, I would suggest that he actually make it into a sale where he is buying the house from her (even for $1.00).



I really wish I had your magical ability to know what a court order says without ever seeing it.

We don't know that the order says that they are to happen simultaneously. OP said that the order simply said the the was to sign a quit claim and ex was to refinance. It is his BANK and financial advisors who are telling him to do it at the same time as refinancing. That is good advice, but that doesn't mean that he couldn't technically be held in contempt.

He stated that she was to refi immediately and he was to give her the quit claim immediately. Therefore it could be "argued" that they were to happen simultaneously. I am not saying that the order specifically says that, I am saying that it could be interpreted/argued that way that therefore I think there is some doubt that a judge would consider that "willful" contempt. Particularly since he will be able to honestly state that he would have cheerfully signed the quit claim deed at the closing table of her refinance.

And, no, she wouldn't be selling him the house for a dollar. Since she was awarded the house in the divorce she would be selling him the house for the balance of the mortgage due, plus even perhaps some equity if any equity exists. These things go through a normal closing just like any other sale. There is nothing informal about it.

If she won't agree then he needs to take it to court, but if she does, its no different than any other voluntary sale of property and doesn't require any court involvement.

The most important thing however is that he cannot just move into the house, and take over the mortgage, without eventually having a closing happen or court intervention happen. Otherwise, he simply becomes her long term tenant and she continues to own the home via the divorce decree. He could end up paying it off in whatever amount of years remains on the mortgage, with her continuing to own it via the divorce decree. That of course would NOT be in his best interest, other than protecting his credit.