What claim do I have on my house after I divorce? 1 Answers as of January 19, 2011

I owned house for 14 yrs (1986) before marriage. We married in 2000. We refinanced w/spouse approximately 2002 ($80K). We started using the line of credit (2nd mortgage) in 2004. In 2009, he quit claimed his name from the property deed (he thought would release him from loan responsibly), but is still on the both loans. We are now divorcing. What claim does he have to my house (or any portion of sales if house is sold)? What responsibilities does he bear for loans ($43K on 1st, $75K on line of credit). He is refusing to take responsibility for any portion of loans and is saying he must sell house to pay off both loans and split whatever is left 50/50. I do not want to lose my house, but don't really want to take on responsibility for the whole amount (2/3 of 2nd is his). I do not think I could qualify for $120K mortgage. Less would be ok.

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John E. Kirchner, Attorney at Law
John E. Kirchner, Attorney at Law | John Kirchner
The house was your separate property at the time you married. However, you apparently added him to the deeded title sometime after the marriage, even though he apparently deeded it back to you. That means that there is a threshold legal and factual issue to be decided in the divorce proceedings. That is, did you convert your separate property into marital property and, if so, did your husband effectively give it back to you later. Without more information, it is not possible to make a reasonable guess as to what a judge might do. If it is now your separate property, your husband's only claim might be as to any appreciation in value since the marriage; that might be offset against any part of the loan debt that benefited him. If it is now marital property, he has as much claim to the property as you do and it will up to the court to decide (if you and he cannot agree) how to equitably divide up all the marital property. Assuming you and he cannot agree on the fair way to deal with the loans and retention of the property, you will have the legal burden of proving that the house is your separate property and it is unlikely the court would require him to assume full responsibility for the loans if the house is separate property. That will depend, in part, on whether the court views the loans as marital debt even though the property is considered separate and that may depend on what was done with the money obtained by the loans. If the court believes the house is marital property, and you can't reach an agreement on what to do about the loans, the court can order the property sold and award the net proceeds of sale (after payoff of the loans); whether it does that depends on the overall financial situation and what other decisions the court might have to make.
Answer Applies to: Colorado
Replied: 1/19/2011
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