Modifying a Final Decree to Include Clarification of the Marital Property

[texaslady78]

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

Hi, please let me explain the situation....my brother and his wife divorced on October 17th. In the final decree, she was awarded the marital property; however, she was not given a time-frame to refinance the home in her sole name and/or sell the property...in order to remove my brother's name off the mortgage loan. He asked her multiple times if/when she was going to do this to no avail. She is currently making payments on time...but has threatened in the past (out of spite) to stop paying on it to ruin his credit and has refused to refinance. Well, my brother was given the advise to file a "motion to clarify/modify" ...this was done this week (around 6 months after the final decree). In this, he asked the court to clarify the specifics on getting it into her name and to request to modify the order to give her a 60 time-frame to get the ball rolling and provide proof. Well, the judge said he could do nothing on this as it was past the 30 day window of modification to the decree. He suggested he get a lawyer to find a "loop-hole" to change the decree.

We are at a loss as what to do next. Does he need to try to modify the decree to give her a specific time-frame and if so...how do we go about that w/o a lawyer. Any help will be greatly appreciated. Thanks so much.

 

[Zigner]

The judge told him what he should do. He should take that suggestion to heart.

You can assist by offering to help financially with the attorney.

 

[Bali Hai]

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

Hi, please let me explain the situation....my brother and his wife divorced on October 17th. In the final decree, she was awarded the marital property; however, she was not given a time-frame to refinance the home in her sole name and/or sell the property...in order to remove my brother's name off the mortgage loan. He asked her multiple times if/when she was going to do this to no avail. She is currently making payments on time...but has threatened in the past (out of spite) to stop paying on it to ruin his credit and has refused to refinance. Well, my brother was given the advise to file a "motion to clarify/modify" ...this was done this week (around 6 months after the final decree). In this, he asked the court to clarify the specifics on getting it into her name and to request to modify the order to give her a 60 time-frame to get the ball rolling and provide proof. Well, the judge said he could do nothing on this as it was past the 30 day window of modification to the decree. He suggested he get a lawyer to find a "loop-hole" to change the decree.

We are at a loss as what to do next. Does he need to try to modify the decree to give her a specific time-frame and if so...how do we go about that w/o a lawyer. Any help will be greatly appreciated. Thanks so much.

A "loop-hole" in favor of the ex-wife was created by the court in the first place. The only loop-hole remaining is between the judge's ears.

 

[Zigner]

A "loop-hole" in favor of the ex-wife was created by the court in the first place.

Rubbish

The only loop-hole remaining is between the judge's ears.

Also rubbish.

 

[single317dad]

This Texas attorney agrees with your brother's judge:

http://www.el-paso-divorce.com/mortgage1.php

This is EXACTLY why I refused to sign divorce papers until my ex and I already had all the debts and assets divided properly. The house went to me (so she would have been the one at risk there), but the bulk of the other debt would have been on me and I wasn't naive enough to think she might make the payments on time.

Perhaps he needs to sweeten the pot a little. Offer to pay the closing costs, for example. That might cost less than an attorney.

 

[Bali Hai]

This Texas attorney agrees with your brother's judge:

http://www.el-paso-divorce.com/mortgage1.php

This is EXACTLY why I refused to sign divorce papers until my ex and I already had all the debts and assets divided properly. The house went to me (so she would have been the one at risk there), but the bulk of the other debt would have been on me and I wasn't naive enough to think she might make the payments on time.

Perhaps he needs to sweeten the pot a little. Offer to pay the closing costs, for example. That might cost less than an attorney.

Forgive me if I'm naive, but, do judges rubber stamp divorce agreements or review them first?

 

[LdiJ]

This Texas attorney agrees with your brother's judge:

http://www.el-paso-divorce.com/mortgage1.php

This is EXACTLY why I refused to sign divorce papers until my ex and I already had all the debts and assets divided properly. The house went to me (so she would have been the one at risk there), but the bulk of the other debt would have been on me and I wasn't naive enough to think she might make the payments on time.

Perhaps he needs to sweeten the pot a little. Offer to pay the closing costs, for example. That might cost less than an attorney.

Assuming she can qualify for a mortgage on her own. No matter how much OP might sweeten the pot, if she cannot qualify, she won't get a mortgage.

 

[ecmst12]

If she can't qualify, she shouldn't have agreed to take on the mortgage and needs to sell the house.

 

[LdiJ]

If she can't qualify, she shouldn't have agreed to take on the mortgage and needs to sell the house.

From a moral standpoint maybe, but at this time not from a legal standpoint. There was no agreement or court order for her to do either.

 

[Bali Hai]

From a moral standpoint maybe, but at this time not from a legal standpoint. There was no agreement or court order for her to do either.

I wonder why? Very perplexing.

 

[latigo]

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

Hi, please let me explain the situation....my brother and his wife divorced on October 17th. In the final decree, she was awarded the marital property; however, she was not given a time-frame to refinance the home in her sole name and/or sell the property...in order to remove my brother's name off the mortgage loan. He asked her multiple times if/when she was going to do this to no avail. She is currently making payments on time...but has threatened in the past (out of spite) to stop paying on it to ruin his credit and has refused to refinance. Well, my brother was given the advise to file a "motion to clarify/modify" ...this was done this week (around 6 months after the final decree). In this, he asked the court to clarify the specifics on getting it into her name and to request to modify the order to give her a 60 time-frame to get the ball rolling and provide proof. Well, the judge said he could do nothing on this as it was past the 30 day window of modification to the decree. He suggested he get a lawyer to find a "loop-hole" to change the decree.

We are at a loss as what to do next. Does he need to try to modify the decree to give her a specific time-frame and if so...how do we go about that w/o a lawyer. Any help will be greatly appreciated. Thanks so much.

There ain’t no “loopholes”!

Nor have I ever heard of a “30-day window of modification.” Not on property distribution.

Family courts retain jurisdiction to modify orders involving issues of custody, support, etc. They do not retain jurisdiction to modify the distribution of marital property and debts.

(The only exception to my knowledge would be if the written decree fails to correctly reflect the findings and decisions of the court. Then only addressed by a motion “nunc pro tunc”, but not one of modification.)

My guess is that the judge who “supposedly” referred to a ”30-day window” was talking about time for an appeal. But you cannot appeal on issues that were not raised in the trial court.
___________

The real culprit here is not the court, but the blooming, incompetent fool that represented your brother in the divorce action!

Naturally I’m not privy to the language in the decree, but if the home was set over to your former sister-in-law without specifically ordering her to:

1. Fully assume the mortgage debt and to indemnify your brother, i. e., save and hold him harmless.

2. Refinance the mortgage.

Then the best you brother ended up with is that she received ownership in the home subject to the existing lien.

But if it is not spelled out in the decree that she is to assume full responsibility for the payment of the mortgage balance payment and to indemnify him, then their joint and several liability to the mortgage holder remains unchanged.

And if she was not ordered to refinance the mortgage, the court cannot do so post-decree.

(Had she been so ordered, but without fixing a time limit, it would be interpreted as being within a reasonable period of time. The passing of which and no refinance might give him a foothold.)

But in no event could the decree affect your brother’s personal responsibility to the mortgage holder.
______________

What I would have him do is to take the decree to a competent attorney.

If for example, it does not specifically award the home to her, and in such a manner that it could be accepted for recording in the county land records as effecting a legal change of ownership, then they would remain joint owners or owners in cotenancy. Which might give him a peg to hang a hat on plus some legal leverage.

Good luck with a sorry mess.

 

[Bali Hai]

There ain’t no “loopholes”!

Nor have I ever heard of a “30-day window of modification.” Not on property distribution.

Family courts retain jurisdiction to modify orders involving issues of custody, support, etc. They do not retain jurisdiction to modify the distribution of marital property and debts.

(The only exception to my knowledge would be if the written decree fails to correctly reflect the findings and decisions of the court. Then only addressed by a motion “nunc pro tunc”, but not one of modification.)

My guess is that the judge who “supposedly” referred to a ”30-day window” was talking about time for an appeal. But you cannot appeal on issues that were not raised in the trial court.
___________

The real culprit here is not the court, but the blooming, incompetent fool that represented your brother in the divorce action!

Naturally I’m not privy to the language in the decree, but if the home was set over to your former sister-in-law without specifically ordering her to:

1. Fully assume the mortgage debt and to indemnify your brother, i. e., save and hold him harmless.

2. Refinance the mortgage.

Then the best you brother ended up with is that she received ownership in the home subject to the existing lien.

But if it is not spelled out in the decree that she is to assume full responsibility for the payment of the mortgage balance payment and to indemnify him, then their joint and several liability to the mortgage holder remains unchanged.

And if she was not ordered to refinance the mortgage, the court cannot do so post-decree.

(Had she been so ordered, but without fixing a time limit, it would be interpreted as being within a reasonable period of time. The passing of which and no refinance might give him a foothold.)

But in no event could the decree affect your brother’s personal responsibility to the mortgage holder.
______________

What I would have him do is to take the decree to a competent attorney.


If for example, it does not specifically award the home to her, and in such a manner that it could be accepted for recording in the county land records as effecting a legal change of ownership, then they would remain joint owners or owners in cotenancy. Which might give him a peg to hang a hat on plus some legal leverage.

Good luck with a sorry mess.

Talk about a mess, how about breaking this down into plain english? What are we paying judges for?

 

[latigo]

(1) If she can't qualify, (2) she shouldn't have agreed to take on the mortgage and (3) needs to sell the house.

1. There is no indication from the posting that the ex wife does not qualify for refinancing. We are told that she declines to do so

She is currently making payments on time...but has threatened in the past (out of spite) to stop paying on it to ruin his credit and has refused to refinance.

2. What she may have agreed to or not agreed to is of no particular importance. What is of consequence is what she was ordered to do. But we are not privy to that information.

3. Again we don’t know whether she has the sole authority to sell the home. As thoughtless and sloppy as the process appears, it may be that title is now held in cotenancy.

And hopefully so because it would allow the ex husband to force a sale through "Partition".

[SUP]4. Considering the absence of legal credentials you ought to stay in the shallow end of the pool![/SUP]