URGENT! Need some direction - and slightly off topic for Family Law

[MKx2]

Hey Soc,

Sometime late last spring you answered some questions for me concerning DH's Separation and Divorce Decree concerning CS and a court ordered amount for real property.

Facts:  State is VA

DH's Separation Agreement in August of '91 orders his ex to pay to him $xx,xxx.xx for real property (marital home), and remove him from title and all liability of home.  None of these were done by ex, and to date, home is still titled to Mr. MKx2 and Ms. Ex MKx2

Separation Agreement incorporated into Divorce Decree of December '92.

DH did NOT pursue issue prior to this date as best interests of minor children would not be served.  If he had pressed the payment, at that time or until the past 6 months, his ex would have had to move in with her mother (in another state) one hour further away from DH, thus the children would have been removed from their childhood home and changed schools.  At the time all three children were flourishing academically.

Two eldest have emancipated.

Ex's parents passed away this past spring leaving their home (in the other state) to ex and her brother.  Ex is selling the home titled to DH and ex, in order to buy her (ex's) brother's 50% interest in home.

Acceptable offer has been presented on said home.  Contract has been signed (ex's signature and initials to real estate agent via FAX only, at this point).

VA law states that a court order of this type is valid and enforceable for 20 years.

Questions:

1.  Is the faxed copy of the contract agreement legally binding at this time?  (We have received the originals via FedEx today for return to agent for purposes of buyer financing.)

2.  How does DH insure his monetary interest in the property is disbursed to him at closing?  (We well realize that we will probably need to retain an attorney here in order to secure correct disbursement.)

3.  Can DH ask ex for interest on said amount?

4.  If the answer to #3 is yes, is the amount of 9% a reasonable amount ? (Per VA code that is the amount applied to arrearage of CS.)

5.  If interest on said amount is a reasonable thing to ask, do you know (in all your infinite wisdom) if we would have to file for contempt for non-payment of CO'd amount PLUS interest prior to signing the contract agreement in order to have it enforceable/recognized?

DH's intention is NOT to block the sale of the home, NOR is it to greatly decrease the amount ex will net from the sale - merely to get what he is owed, and hopefully with at least some interest.   Not having received the CO'd amount has caused DH hardship in the he was unable to purchase a home and was forced to rent from April 1991 through to present as he had no money for down payment or closing costs.

Many many thanks for your time Soc.  As always you are a God-send to all of us ... :O) you must sleep SO good at night with all your good deeds!

[socrateaser]

>1.  Is the faxed copy of the contract agreement legally
>binding at this time?  (We have received the originals via
>FedEx today for return to agent for purposes of buyer
>financing.)

Did you sign a listing agreement consenting to sell the property on specific terms. If, yes, and the faxed copy of the contract satisfies the listing requirements, the the contract is valid and enforceable.

>2.  How does DH insure his monetary interest in the property
>is disbursed to him at closing?  (We well realize that we will
>probably need to retain an attorney here in order to secure
>correct disbursement.)

He should have placed the terms of sale into the listing agreement.

You could file a Lis Pendens with the county recorder so that the divorce judgment provides notice of your right to payment for the property.

You can give a copy of the judgment to the title company, and they won't issue a policy of title insurance without excluding your judgment.

You can place your requirements into the escrow agreement, that funds shall be distributed so that you get what's coming to you.

>
>3.  Can DH ask ex for interest on said amount?

You could ask, but you have a judgment that grants you $x and you never attempted to collect, so you would have to file an action in quasi contract, asking that the court not permit the other spouse to gain unjust enrichment at your expense. But, you failed to assert your rights under the judgment, so the other spouse could argue that your failure indicted that you were intending a gift of the use of the property and the value of the judgment. Who would win? You, probably, but I wouldn't bet my Rolex.

>
>4.  If the answer to #3 is yes, is the amount of 9% a
>reasonable amount ? (Per VA code that is the amount applied to
>arrearage of CS.)

Statutory Interest is appropriate. But so is fair market value for a private real property loan.

>
>5.  If interest on said amount is a reasonable thing to ask,
>do you know (in all your infinite wisdom) if we would have to
>file for contempt for non-payment of CO'd amount PLUS interest
>prior to signing the contract agreement in order to have it
>enforceable/recognized?

Yes, but signing the agreement to sell has nothing to do with your right for payment. You need to make sure that the sale is conditional on your receiving the principal and interest from escrow, that way you can avoid the entire ordeal of a litigated resolution.

[MKx2]

>You need to make sure that the sale is conditional on your receiving the principal and interest from escrow, that way you can avoid the entire ordeal of a litigated resolution. <

**Does this mean that a contingency needs to be written INTO the contract agreement for sale specifically stating this?

I meant to include this next one in the 1st post and forgot :O(  SORRY!

**Is it possible that at the closing the attorney would issue 2 checks in equal amounts - one to DH and one to ex?  (VA is a community property state.)

Now ... I'm in a hurry, gotta see if I can find that ONE good woman for you here in VA - if I can, I will send you her picture for approval :O)

Thank you again - you have helped so much!

[socrateaser]

>**Does this mean that a contingency needs to be written INTO
>the contract agreement for sale specifically stating this?

After thinking about the situation, I believe that your best move is to get a temporary restraining order preventing any funds from being distributed from escrow without your consent.

>**Is it possible that at the closing the attorney would issue
>2 checks in equal amounts - one to DH and one to ex?  (VA is a
>community property state.)

The attorney will do as instructed, however, my question is who's name is on the listing agreement? If the contract of sale is between your ex and the buyer, then you are a stranger to this transaction, and you're only protection is your ability to refuse to execute title in favor of the buyer.

Trouble with this is that if the title company accepts the divorce judgment as evidence that the court has ordered title in your ex's favor, then they could simply forgo the burden of creating a deed, and your ex could just record the judgment with the county recorder.

So, your only real security here is to get a TRO/Injunction. That way, you will be able to negoitiate the distribution of funds, and then you can stipulate to dismiss the TRO.

[MKx2]

.  

[socrateaser]

My advice remains the same. The real estate agent obviously knew that if both names were on title, that the only sure way to sell the property was to get both of your names as seller. However, the divorce judgment, effectively tenders title to your ex in return for value. Your ex could conceivably record that judgment with the county recorder, and it would have the same effect as a bargain and sales deed, i.e., your ex would have sole title and could transfer the property.

No one would care that she never actually paid for the grant, and you would need an injunction to stop the sale.

This is all rather sophisticated stuff, even for the closing attorney, who may prefer to err on the side of caution.

You could take a chance and simply refuse to sign the sales contract unless your ex first signs an escrow instruction (just a written contract or addendum to the sales contract) giving you the money you're owed from the net proceeds of escrow. Just how much that is would be negotiable between you and your ex.

If you can to this, you can avoid the ordeal of litigation. If you can't then the only safe alternative route is the TRO.

[MKx2]

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