Tuesday, September 30, 2014

Can I keep my house in a divorce?

QUESTION:  I'm getting a divorce next year and my name is not on the deed or mortgage only my husband and my mothers name is on the deed and mortgage. She passed last year but I'm the only one named in the will to receive her 5% of the property. Can I tell the judge that I would like to keep them home in my divorce or does my ex husband automatically gets the home since his name is on it ?? I pay more than half of the mortgage and all of the utilities. 

ANSWER:  This question is more complicated question that it first appears. Normally, once you sign a quit-claim deed and transfer title of a home to your spouse, you give up all ownership in the property. However, this is not always the case.  For instance, if the house was purchased during marriage, even if you signed a quit-claim deed putting only your husband's name on the house, you may have a community property interest in the house.  Also, if you signed the deed and were a victim of domestic violence and were threatened or coerced into signing over the property, you may be able to set aside the deed. Also, if you signed the deed only for financing purposes and were expecting to have your name put back on the property after the house was purchased, you may have a community property interest.
It sounds like almost for sure, the 5% ownership of your mom's is all yours. However, was there a down payment on the house? Where did it come from? You may have an additional money interest in the home depending on how much was put down and where the money came from.

You really need to seek the advice of an attorney before it can be determined what your ownership interest is in the house.

Regardless of your ownership interest in the property, you can buy Husband out of his interest in the property if he is agreeable and if you can qualify to refinance the property. 

1 comment:

Roger Pace said...

I've been looking at maybe going into the law field and work towards becoming a family lawyer. I wanted to get an idea of the kinds of things that family lawyers deal with on a regular basis, and it seems like the question of being able to keep a house during a divorce is something that they would need a lawyer for. I like this idea of helping people figure out out stuff like this, and I can't wait to learn more and see where this all takes me.