Joint Home Loan

[tf11]

I am recently separated in the state of NC and have questions regarding the   home. I left the house (I know that was a mistake now. Hindsight is 20/20.) by mutual agreement.  My spouse is still living there.

I am interested in getting my name off of the home loan so that I can get another home loan later and move on with my life. I dont care about the equity in the home. She refuses to sell and was just told she cannot refinance by herself.

I have been told that moving through Equitable Distribution is too expensive and not worth the time.

1. Is there a way to force her to sell/refinance so that I can move on with my life or at least put a time constraint on this? (For example, in the separation agreement place a time limit on this?)

Thanks for your time.

[socrateaser]

>1. Is there a way to force her to sell/refinance so that I can
>move on with my life or at least put a time constraint on
>this? (For example, in the separation agreement place a time
>limit on this?)

Are your minor children, for whom you must pay support, living in the home?

[tf11]

We are splitting time with the child 50/50 and have been ever since the separation. So, he stays with me at my new residence 1/2 the time and then 1/2 the time with her at the old house.  She has not asked for any support, largely because of the 50/50 time arrangement.

[socrateaser]

>1. Is there a way to force her to sell/refinance so that I can
>move on with my life or at least put a time constraint on
>this? (For example, in the separation agreement place a time
>limit on this?)

First, the reason why I asked about the child support is because if you are paying support, then it is far superior to arrange to continue to make payments on the mortgage and keep your name on the property, than to merely pay support, because in the former case, you will eventually get your investment back, whereas in the latter, you are effectively providing support so that your spouse gets the later benefit of the investment.

In your current circumstances, if you are continuing to pay part of the mortgage and not living in the property, then you are paying support, even though not by court order, because your child is getting the benefit of your mortgage payments. If you are NOT paying the mortgage, then either you or your spouse is equitably entitled to one half of the difference between fair market rental value on the home and the mortgage payment + taxes, and insurance. So, if one half of the difference between the two amounts is positive, then you are missing out on that amount of profit, because a third party would have to pay that much to rent your home. And, if the amount is negative, then your spouse is relieving you of some portion of the cost of home ownership, for which she is entitled to reimbursement.

BTW, this is why the equitable distribution process is soooo expensive. Lawyers and judges are generally horrible at math, so they must hire experts to do the accounting for the court.

OK, back to the original question. You cannot force your spouse to sell -- only the court can do that. You can, however, agree to conditions that would permit her to remain in the home as long as, for example, she keeps all of the payments timely and maintains the property in good repair, and that failure to do so will permit post-judgment relief in the form of an order to sell the property and distribute the proceeds of sale between the parties equally, with reimbursement to you, for any financial injury suffered as a consequence.

There are a LOT of things to consider in making such an order/agreement, and if you try to do it yourself you will screw it up. Frankly, no family law attorney can prepare this sort of language, either. I would pay for a local real property lawyer to create an iron-clad order that can be recorded with the county clerk to protect your interest. Otherwise, I can practically guarantee that you will end up getting screwed.

[tf11]

Thanks for the clarification.

I have one additional question based on your response.

1.  If a time limit imposed by the consent order establishes a sell/refinance deadline AFTER the divorce is granted, does that make a difference?

In other words, can the act of granting the divorce before this deadline happens somehow over-ride what was agreed to in the consent order/separation agreement, as long as it was signed well before the divorce was granted?

The reason I ask, is that my understanding is that you lose your claim to Equit. Dist. if it is not filed before the divorce is granted. (Ofcourse, my understanding could be wrong.)

Thanks for your time.

[socrateaser]

>1.  If a time limit imposed by the consent order establishes a
>sell/refinance deadline AFTER the divorce is granted, does
>that make a difference?

No. A well written consent decree/stipulated judgment will contain terms that permit the parties to enforce the judgment both "on the contract" or via the court's contempt powers. So, if the deadline were to occur 20 years from now, and the other party failed to live up to their obligation, then you could go back to court for post-judgment relief. and ask for the court to enforce the judgment and order the property sold. Or, you could sue the other party in civil court on the agreement contained in the order and ask for the court to order specific performance (sell the home).

Either way, the house gets sold.

>
>In other words, can the act of granting the divorce before
>this deadline happens somehow over-ride what was agreed to in
>the consent order/separation agreement, as long as it was
>signed well before the divorce was granted?

No.

>
>The reason I ask, is that my understanding is that you lose
>your claim to Equit. Dist. if it is not filed before the
>divorce is granted. (Ofcourse, my understanding could be
>wrong.)

What you're referring to, is when you make a property agreement and the court orders it, the agreement becomes the final "law" of the case, and it is not subject to later modification, absent a showing of fraud, illegality, duress or mutual mistake, made within the time limit provided in the jurisdiction.

While the case is pending judgment, the court can make a fair distribution of the parties' property. After judgment, the court is severely restrained, and whatever you agreed to is what you get.

This does not mean that if a party breaches the agreement that you can't enforce it. It does mean that you can't get the court to change the agreement to something else as a means of punishing the other party for the breach.

In short, if you agree to sell the house at some future date, then the court can force the sale. However, to be safe, I would not make that date more than 5 years in the future, unless you know that in your jurisdiction the court will enforce the sale to a date farther out. Five years is an extremely conservative number -- I doubt that you'ld actually have any trouble going out as far as 10 years, and maybe even 20, if you renew the judgment.

Anyway, a good real property attroney can make certain that your agreement will stick.