What will my rights to my house be after I get a divorce? 10 Answers as of February 11, 2011

I am getting a divorce. The house is under my name. We have a 22 year-old living with us who may be eligible for grants to move in university housing or may choose to live with me. My husband has bad credit and would like to stay in the house and pay mortgage, get married immediately and bring in his wife to this house. I do not trust him to be able to pay the mortgage in the future if the wife decides to move elsewhere, or if I decide to sell the house in a year or two whether I can have them vacate the house. If we sell the house, there will be little or zero profit left with our second loans and the market as it is.

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Michael Rose Attorney at Law
Michael Rose Attorney at Law | Michael Rose
There are many pieces to the question that you left off. Number of years married? Did you buy the house while married? Who put the down payment and where did this money come from? Did you ever refi the house? Did you sell a house to get this current house?

Because California is a community property state, it does not matter if only your name is on the title. Those questions that I listed above need to be answered to give an answer to your question. Property can be a complex issue in a divorce. If you want more information, please call us.
Answer Applies to: California
Replied: 2/8/2011
Law Office of Joseph A. Katz
Law Office of Joseph A. Katz | Joseph A. Katz
You did not say what you wanted to do. The house is in your name. You do not trust your husband to make the payments. Do not let him live there, then. Is the house your separate property? Did you own it prior to marriage? Have the two of you paid the mortgage down together (not that that is dispositive)? The best solution is probably to rent it out if you recognize or acknowledge any ownership interest of your husband's. You speak as if the two of you would be selling it, so perhaps he has an ownership interest. I cannot tell from the information you provided.
Answer Applies to: California
Replied: 2/2/2011
Warner Center Law Offices of Donald F. Conviser
Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
Keeping the house and allowing your husband to stay in the house would be problematic and ill-advised, under the circumstances you describe. Since the house and the loans are in your name only, you could end up the victim of a foreclosure and a deficiency judgment on at least the loan secured by second trust deed if your husband fails to keep the payments current on both loans, causing you to default on your loans. If the loan secured by first trust deed had been refinanced, you could end up the victim of a deficiency judgment on the refinance loan as well.

Your credit would be damagedif your husband failed to keep the payments currrent on both loans, and your credit would be destroyed if a foreclosure occurred. You could be forced to makepayments on the loans on the house in which your then ex-husband (and his new wife) live in order to protect your credit if your then ex-husband failed to keep the payments current. You would be forced to spend money on attorney's fees in post-divorce proceedings to deal with the house if your then ex-husband failed to keep the payments current.

If your husband has bad credit, he won't be able to refinance the loans on the house to remove you as the obligor on those loans. Unless your husband is able to induce a friend or relative to become a co-borrower on a loan to pay off the loans under your name, and the loan in your name is paid off in full, the best thing to do under the circumstances would be to sell the house, and if your husband refuses, to ask the Court for an order to sell the house, either before trial, or at trial.
Answer Applies to: California
Replied: 2/2/2011
Goldberg Jones
Goldberg Jones | Zephyr Hill
Unfortunately there is not enough information in your email to answer your question. There are some complex options you have raised and it would make sense for you to do a free phone consultation with me or another good divorce attorney in the area. In general if the house if kept by you, you also keep the debt with it and the husband has no right to live there or move in with a new bride unless you allow it.

If you do allow him to live there it would be a landlord tenant relationship and your rights would be dictated by the lease you would have him sign.
Answer Applies to: California
Replied: 2/2/2011
Edwin Fahlen Attorney at Law
Edwin Fahlen Attorney at Law | Edwin Fahlen
I have reviewed your case information and I can help you with your real estate/divorce issue and take you through all the steps necessary to make as sure as can be that you give only what you must, and receive everything to which you are entitled. It is VERY IMPORTANT to draft a settlement agreement that will provide complete protection for you, and obtain an order that will allow you to cure any problem that may arise, such as your (ex) husband's failure to make the mortgage payments. I am a Family Law, and a Real Estate Lawyer, which is exactly what you need as far as experience goes.

Since documents have been filed with the court it is very important that we speak as soon as possible, so I can evaluate your problem, and if hired protect all of your interests, hopefully without going to court for a adversarial proceeding. You may find some helpful information on my website.
Answer Applies to: California
Replied: 2/2/2011
    Law Office of Curry & Westgate
    Law Office of Curry & Westgate | Patrick Curry
    You and alot of other divorced couples face the same or similar problem. You can transfer the house to your ex and his new spouse and request that they refinance or you can sell. Do not transfer without an agreement as to the time limits to refi or buy you out.
    Answer Applies to: California
    Replied: 2/2/2011
    Diana K. Zilko, Attorney at Law
    Diana K. Zilko, Attorney at Law | Diana K. Zilko
    Typically, to avoid the pitfalls you just described, you would agree as part of the settlement agreement how the house will be handled. The one who wants to stay in the house would usually obtain financing in their own name. If they cannot do so, then the house is sold. Since the house is in your name, it makes the most sense for you to keep it if you can afford to do so. If not, then perhaps selling is the next best option to avoid the problems the might arise if you don't. If you have any further questions, please let me know.
    Answer Applies to: California
    Replied: 2/2/2011
    Michael Apicella
    Michael Apicella | Apicella Law and Mediation
    If the house was purchased during marriage with community funds, then the house is community property; meaning that if there is any equity, each spouse is entitled to half. As for dividing the property, there are two general options:

    1. Sell and equally divide the equity (if any), or

    2. one spouse keeps the house and pays the other spouse half any equity, and the spouse who keeps the house refi's in their name to get the other spouse off the mortgage. With houses under water, and spouses with bad credit, that is often not possible. Hence, the best option is to attempt a short sale and both parties simply walk away.

    The option you suggested below sounds problematic, as you would still be on the loan, and you said your husband has bad credit and as well, not trustworthy to pay the mortgage. Given those facts, I don't know why any reasonable person would agree to such terms.

    It would be best for you to call a local family law lawyer to discuss the facts and your options in more detail. If in Marin or Sonoma County, feel free to call my office.
    Answer Applies to: California
    Replied: 2/2/2011
    Maclean Chung Law Firm
    Maclean Chung Law Firm | G. Thomas MacLean Jr.
    In California, if the house was acquired during marriage or with funds form during the marriage, it is considered community property, which means that both you and your spouse have a half interest in the property. There may be reasons you haven't mentioned that could make the house just your separate property, but just because the house is in your home by itself does not automatically make it your separate property.

    If both spouses have an interest in the house, than you will need to agree on what to do with it. If you can't agree, the court will likely require the house to be sold, and any equity split. If you don't mind your husband living in the house, you can put together an agreement with both of you that will require him to maintain the mortgage payments. If you want to know your full options from an attorney, it would be helpful to know fully the facts and be able to make a determination if the property is likely community or separate property.
    Answer Applies to: California
    Replied: 2/2/2011
    Diefer Law Group, P.C.
    Diefer Law Group, P.C. | Abel Fernandez
    I believe you should try to resolve all issues now. You should outline potential scenarios and make agreements to cover all issues. If he stays in the home, it will be hard to get him to leave in the future unless that is agreed to now (that home will be sold in one year). If you can, dispose, sell or resolve the issue now. If you leave for the future, you should still resolve how long it will be before you sell it. Do not leave anything up in the air. It will just cause problems in the future.
    Answer Applies to: California
    Replied: 2/2/2011
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