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

[LdiJ]

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.

Which is exactly what I told you previously.

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.

If the IRS told you that you were allowed to claim the interest then they were assuming that you were on the mortgage as well as your wife. You are not legally obligated to pay the interest. You can walk away from the home without your credit being effected, therefore you cannot legally claim the mortgage interest. You have no obligation to the creditor. Therefore no, you are not eligible to claim the mortgage interest.

An attorney is also NOT the correct person to ask for verification of that. Attorneys know very little about tax. You would need to consult a tax professional. However, you need to make it clear to whomever you consult that you are NOT on the mortgage.

 

[KCGregg]

The lawyer said I cannot be in contempt of court for violating the divorce decree if the divorce decree was written in violation of tax code or federal law. For example, if we put in the decree that she can beat me whenever she wants doesn't mean she could without being charged for battery. He said she would first have to file with the courts a contempt motion ($2000 retainer) and then bring it before a judge who would then rule she cannot claim the mortgage interest. In addition, he found a few other things she has done that, if put before a judge, could have her name removed from the title entirely.

 

[mistoffolees]

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.

Agreed.

If they're smart, they'll file a stipulation with the court that she agrees to him taking the deduction in the future. It would be to both of their advantage to do so - even if he has to give her part of the savings.

 

[KCGregg]

I ran this by the IRS yesterday. Yes, the know I am on the title and not the mortgage. They asked me a series of question about her and based upon factual answers I gave they said she CANNOT claim the mortgage interest. They then asked me a series of questions and based upon my factual answers, I was told I CAN claim the mortgage interest. Line 11 of Schedule A gives you a place to report mortgage interest not reported to a person on a 1098. Trust me...I was on the phone with the IRS for 1.5 hours.

 

[LdiJ]

The lawyer said I cannot be in contempt of court for violating the divorce decree if the divorce decree was written in violation of tax code or federal law. For example, if we put in the decree that she can beat me whenever she wants doesn't mean she could without being charged for battery. He said she would first have to file with the courts a contempt motion ($2000 retainer) and then bring it before a judge who would then rule she cannot claim the mortgage interest. In addition, he found a few other things she has done that, if put before a judge, could have her name removed from the title entirely.

Whoa...there a court could NOT remove her name from the title of the home. There is a mortgage on the home and she is the mortgagee.

The mortgage company has a contract with her that is predicated on her ownership of the home. The mortgage company is not a party to your divorce therefore the judge has no jurisdiction to violate that contract. Her name can be removed via a refinance but if its done in any other manner the mortgage company can call the loan due and payable in full.

Now, I agree, in general, that you cannot be held in contempt if something in the decree violates the federal tax code. In other words, if the IRS audits her and denies her the mortgage deduction that is not your problem. However, there is a difference between you actively violating the decree by claiming the mortgage interest yourself (particularly since I am certain that you got a wrong answer on that part) and the IRS not allowing her to claim the interest as per the decree.

If you were buying the house from her, on contract, then that would be a different story....with its own complexities.

 

[Ohiogal]

The lawyer said I cannot be in contempt of court for violating the divorce decree if the divorce decree was written in violation of tax code or federal law. For example, if we put in the decree that she can beat me whenever she wants doesn't mean she could without being charged for battery. He said she would first have to file with the courts a contempt motion ($2000 retainer) and then bring it before a judge who would then rule she cannot claim the mortgage interest. In addition, he found a few other things she has done that, if put before a judge, could have her name removed from the title entirely.

It does NOT cost 2k to file a contempt motion. You CAN be found in violation of the divorce decree. It limits YOUR ability to claim the deduction. That is NOT illegal. The court can strike the ability of her being able to claim to the deduction but preventing you from claiming is NOT a violation of law.

 

[KCGregg]

The judge cannot remove her from the mortgage but he could order her off the title. Maybe I left out an important piece of info that I put into another forum question. When my house was hit with a hail storm the insurance company mailed the check to her. The decree says I am responsible for all repairs to the house. She agreed to move the money over to my account to make the repairs but instead she kept it and went on a shopping spree. Between that AND claiming the interest when she is not allowed is why a judge COULD remove her interest in the property by ordering her off the title.

The IRS told me to claim the mortgage and include a copy of the divorce decree, proof of me making the mortgage payments and enter it on Line 11 of Schedule A. They can then interview both of us and see who is to claim it.

 

[Ohiogal]

The judge cannot remove her from the mortgage but he could order her off the title. Maybe I left out an important piece of info that I put into another forum question. When my house was hit with a hail storm the insurance company mailed the check to her. The decree says I am responsible for all repairs to the house. She agreed to move the money over to my account to make the repairs but instead she kept it and went on a shopping spree. Between that AND claiming the interest when she is not allowed is why a judge COULD remove her interest in the property by ordering her off the title.

The IRS told me to claim the mortgage and include a copy of the divorce decree, proof of me making the mortgage payments and enter it on Line 11 of Schedule A. They can then interview both of us and see who is to claim it.

WRONG. The court could NOT remove her interest in the property as that would be a violation of the MORTGAGE. Good grief you are thick. A court could force her to repay you the money she spent. And a judge cannot penalize her for claiming the interest when the court ordered so.

 

[KCGregg]

Hmmm...do I take the advice of the IRS and an attorney I met with or go with your info. Call me thick but I think I'll stick to the attorney who practices law IN THIS STATE and the IRS who apparently knows more about the tax code than you.

 

[mistoffolees]

WRONG. The court could NOT remove her interest in the property as that would be a violation of the MORTGAGE.

Technically, that's true, but the court could get the same effect by ordering her to sign a quit claim deed. She would be waiving her rights to claim any value from the home, but it would not affect the mortgage.

Of course, most of us would recommend to her that she fight such an order, but it could be done.

 

[LdiJ]

Technically, that's true, but the court could get the same effect by ordering her to sign a quit claim deed. She would be waiving her rights to claim any value from the home, but it would not affect the mortgage.

Of course, most of us would recommend to her that she fight such an order, but it could be done.

The mortgage company however would be free to call the mortgage in that instance...which is the downside to that.

 

[LdiJ]

The judge cannot remove her from the mortgage but he could order her off the title. Maybe I left out an important piece of info that I put into another forum question. When my house was hit with a hail storm the insurance company mailed the check to her. The decree says I am responsible for all repairs to the house. She agreed to move the money over to my account to make the repairs but instead she kept it and went on a shopping spree. Between that AND claiming the interest when she is not allowed is why a judge COULD remove her interest in the property by ordering her off the title.

The IRS told me to claim the mortgage and include a copy of the divorce decree, proof of me making the mortgage payments and enter it on Line 11 of Schedule A. They can then interview both of us and see who is to claim it.

I have been a tax professional for more than 25 years I am find it less than credible that the IRS told you that you could claim the mortgage interest, unless it was unclear to the agent you spoke to that you were not on the mortgage, or unless you got a bad agent (which is always possible).

I also find it less than credible that the IRS would have told you to attach any documentation to your return in that instance, as that is not standard operating proceedure. Standard operating proceedure is that the taxpayer should not send in that kind of documentation until the IRS asks for it in the course of their investigation.