Separation Agreement

[RedEagle12]

What is the name of your state (only U.S. law)? COLORADO

I was divorced August 2011. In the divorce decree/separation agreement my
X took ownership/responsibility of the house (property and loan)? I have signed a quit claim deed. As of today, I tried speaking with my X about refinancing the home loan, as to release my name. Obviously my X became upset, and refuses to do so, ever ... Is this situation a contempt of court (according to our separation agreement)? and/or can the court mandate refinancing or place the house on the market?

Much Thanks,

RE

To add, the separation agreement regarding the property states as such:

It is important to remember that it is the responsibility of the party who is awarded the asset to prepare the necessary documents to change the title of the property with the county and to notify any financial institutions, insurance companies, etc. of any changes.

Party who will take ownership and title: THE X
Party who will assume all obligations (Mortgage, Taxes, Insurance): THE X

The parties agree to the following terms relating to all debt and the party responsible for the debt will
indemnify and hold the other party harmless.

Important Information - Please Read
 Change of title does not end the obligation you may have to notify the financial institution. Court approval of any provision to remove either party from a loan does not require the lender to actually release the party from the commitment.

 It is the responsibility of the party who is awarded the asset to prepare the necessary documents to change the title of the property with the county and to notify any financial institution, insurance companies, etc. of any changes.

 Joint debt of any kind, for example mortgage, cars, credit cards, remain joint until paid in full or refinanced. Joint credit cards should be destroyed and individual credit cards issued to each spouse to avoid future liability.

The Parties understand that if either of them refuses to execute any documents under this agreement, C.R.C.P. 70 allows the Clerk of the Court to do so. A party may also ask the Court for sanctions for the other party’s refusal to follow this Order.

 

[mistoffolees]

What is the name of your state (only U.S. law)? COLORADO

I was divorced August 2011. In the divorce decree/separation agreement my
X took ownership/responsibility of the house (property and loan)? I have signed a quit claim deed. As of today, I tried speaking with my X about refinancing the home loan, as to release my name. Obviously my X became upset, and refuses to do so, ever ... Is this situation a contempt of court (according to our separation agreement)? and/or can the court mandate refinancing or place the house on the market?

Much Thanks,

RE

To add, the separation agreement regarding the property states as such:

It is important to remember that it is the responsibility of the party who is awarded the asset to prepare the necessary documents to change the title of the property with the county and to notify any financial institutions, insurance companies, etc. of any changes.

Party who will take ownership and title: THE X
Party who will assume all obligations (Mortgage, Taxes, Insurance): THE X

The parties agree to the following terms relating to all debt and the party responsible for the debt will
indemnify and hold the other party harmless.

Important Information - Please Read
 Change of title does not end the obligation you may have to notify the financial institution. Court approval of any provision to remove either party from a loan does not require the lender to actually release the party from the commitment.

 It is the responsibility of the party who is awarded the asset to prepare the necessary documents to change the title of the property with the county and to notify any financial institution, insurance companies, etc. of any changes.

 Joint debt of any kind, for example mortgage, cars, credit cards, remain joint until paid in full or refinanced. Joint credit cards should be destroyed and individual credit cards issued to each spouse to avoid future liability.

The Parties understand that if either of them refuses to execute any documents under this agreement, C.R.C.P. 70 allows the Clerk of the Court to do so. A party may also ask the Court for sanctions for the other party’s refusal to follow this Order.

See the bolded portion. The decree explicitly states that the mortgage is to remain joint until refinanced - and there are no orders for it to be refinanced at any given time.

It does say that if you are harmed by the arrangement, you will be made whole by ex. If, for example, your credit rating were destroyed, ex would have to make you whole - although it would be almost impossible to figure out how to do that and it would be almost impossible to enforce.

What is the reason for the issue now? What has changed in 6 months?

You should never have agreed to that terminology. There are very few cases where it makes sense to sign a quit claim deed and remain on the mortgage. You MIGHT be able to get a court to agree to a modification, but probably not this soon and not without good reason.

Your best chance would be if ex is not paying the mortgage. In that case, you could file for contempt and ask for an order for the home to be sold. Beyond that, you have an uphill battle, especially this soon after the order was issued.

 

[RedEagle12]

What is the reason for the issue now? What has changed in 6 months?

I cannot qualify for a home loan due to already having one in my name, though I know it may seem like 'only' 6 months, I would like a home of my own.

I realize the terminology was inconceivably asinine for me to agree to, and I should have not done the quit claim deed. That is the past, sometimes people make mistakes, I cannot fret on the past.

I thank you very much for your time and response, though I do have one last question.

Would or could I still file contempt of court paper work to see if a judge would consider this feasible? Or is there some sort of small claims procedure I could attempt?

 

[mistoffolees]

What is the reason for the issue now? What has changed in 6 months?

I cannot qualify for a home loan due to already having one in my name, though I know it may seem like 'only' 6 months, I would like a home of my own.

I realize the terminology was inconceivably asinine for me to agree to, and I should have not done the quit claim deed. That is the past, sometimes people make mistakes, I cannot fret on the past.

I thank you very much for your time and response, though I do have one last question.

Would or could I still file contempt of court paper work to see if a judge would consider this feasible? Or is there some sort of small claims procedure I could attempt?

You can not file for contempt of court because ex is following the court order, so there is no contempt.

You can request a modification. The rules vary from state to state and from judge to judge. In some states, it requires that you show a change of circumstances which will be hard after 6 months (and "I want to buy a house" probably won't cut it). But some judges are more flexible than others on what constitutes a change.

The bigger question is whether your ex could refinance even if s/he wanted to. Is there enough equity in the home to refinance? Does ex have the income and credit rating to do so? If so, you might get further with a polite conversation. After all, interest rates are incredibly low so ex would probably save money by refinancing, anyway. If ex can not afford to refinance, then the court can't force him to.

 

[nextwife]

This is a typical example of situations in which the attorneys drafting the agreements failed to fully explain to their clients the impications of allowing the mortgage to remain open after a quit claim.

IMHO: too many family law attorneys are underinformed about mortgages, finance, and especially about how open mortgages, even if current and in good standing, impact a borrowers credit score and ability to later finance their own home. I've seen ridiculous order after ridiculous order, which totally ignored good fiscal practice. And then I'm stuck being the one explaining why we still DO hold them responsible for their mortgage, the mortage we granted them based upon BOTH parties agreeing to make their incomes available toward the payments.

 

[mistoffolees]

This is a typical example of situations in which the attorneys drafting the agreements failed to fully explain to their clients the impications of allowing the mortgage to remain open after a quit claim.

IMHO: too many family law attorneys are underinformed about mortgages, finance, and especially about how open mortgages, even if current and in good standing, impact a borrowers credit score and ability to later finance their own home. I've seen ridiculous order after ridiculous order, which totally ignored good fiscal practice. And then I'm stuck being the one explaining why we still DO hold them responsible for their mortgage, the mortage we granted them based upon BOTH parties agreeing to make their incomes available toward the payments.

In this case, even if OP had not signed a quit claim, s/he would have the same problem. Since OP hasn't mentioned it, I assume that the mortgage is being paid, but the problem is that OP's credit is tied up. Even without signing a quit claim, that would be true.

I strongly advise people to NEVER settle for terms in a divorce where the person who leaves the home remains on the mortgage. If the person keeping the home can't refinance, then the house should be sold right away.

There are exceptions, but they are very rare.

 

[nextwife]

In this case, even if OP had not signed a quit claim, s/he would have the same problem. Since OP hasn't mentioned it, I assume that the mortgage is being paid, but the problem is that OP's credit is tied up. Even without signing a quit claim, that would be true.

I strongly advise people to NEVER settle for terms in a divorce where the person who leaves the home remains on the mortgage. If the person keeping the home can't refinance, then the house should be sold right away.

There are exceptions, but they are very rare.

Signing the quit claim left him no leverage to force a refi or a sale. I agree that nobody should ever deed off their interest while a mortgage for which they are a borrower remains open.

 

[mistoffolees]

Signing the quit claim left him no leverage to force a refi or a sale. I agree that nobody should ever deed off their interest while an open mortgage for which they are a borrower remains open.

Even without signing a quit claim, s/he had no leverage to force a refi or sale. The court order specifically says that both people are to remain on the mortgage.

 

[nextwife]

Even without signing a quit claim, s/he had no leverage to force a refi or sale. The court order specifically says that both people are to remain on the mortgage.

Betcha nobody explained that this meant that for the remaining term on the loan he may be unable to himself get a mortgage. Perhaps he would not have agreed if he'd been told the truth about how this works? And no court order should deny someone the right to themselves get a mortgage for maybe 28 or fewer years into the future against their wishes if they would not agree.

 

[Ohiogal]

OP can take this back because he/she is NOT being held harmless if being denied to get a home for him/herself. As such, the court order is NOT being followed.

 

[mistoffolees]

OP can take this back because he/she is NOT being held harmless if being denied to get a home for him/herself. As such, the court order is NOT being followed.

I thought about that, but wondered if it would be enough. Have you seen cases like that? I haven't, but then, I haven't seen that many situations where it would even have come up.

Given that you think it's plausible, then that's what I would recommend.

Still waiting for OP to say if it's even possible for ex to refinance. If so, he'd probably save money by doing so. If not, then OP is going to have to try to force a sale, which might not be easy, either.

 

[RedEagle12]

Thank you all very much!! To answer the questions at hand: The X is paying, I'm not worried about that, but like above it ties up my credit severely. My X was the bread winner so to say, so yes, my X can very well refinance a 128,000 loan. Unfortunately I have spoken with the X on multiple occasion all ending with "I don't have to and you'll never be able to make me" and I was denied the chance or offer to seek mediation over the matter... Emotions are getting the best of this situation. But I do believe I might have an encling of hope/leverage regarding the comment from Ohiogal: "OP can take this back because he/she is NOT being held harmless if being denied to get a home for him/herself. As such, the court order is NOT being followed." I think this is great and I already have the denial letters stating the reason for... I will obviously try one more conversation with the X then I may attempt the contempt of court with this matter... All your advice has been greatly appreciated!! Thank you - RE