My divorce decree states that I am the sole owner of the marital home. The certificate bears my ex-husband's name and my name as his wife. I approached my ex-husband about selling the house.
He has been absent for several decades without knowing his whereabouts. He had no contact with my younger daughter (she is now 44) and with the older daughter since she was 12 (she is now 52).
We were married 11 years and had a 27 year mortgage to pay off. I remarried 36 years later, and we paid the mortgage, child support, major home repairs, and put my daughters through college with no student loans.
I offered the amount of money that matched his share of down payments and mortgage payments. He refused, stating that he wanted the house to be sold and all proceeds to go to our daughters and will not agree to anything else. He only lived in the house for the first four years.
Please let me know what my options are as I have heard mixed answers from different lawyers and don't want to mess around with incorrect information.
Confused and desperate
It must have been an ordeal to have this over your head while struggling to pay the mortgage every month. Ideally, it is better to refinance the mortgage and transfer the home to one person's name at the time of divorce. Otherwise you are left with a situation like this where one party takes on the financial responsibility despite owning 50% of the house.
Steve Braccini, an attorney for the Sheppard Mullin law firm in California, says that since you've paid off the lion's share of the remaining mortgage, you may have an opportunity to file a "silent title action," which is commonly used when that's the case a disagreement over ownership of a property claiming that you are now the sole owner of the property.
"That assumes the ex-husband hasn't helped pay off the mortgage in the many years since he became MIA," he says. “Most importantly, the divorce decree may contain a provision for the division of assets and property. Therefore, it is important to first determine what the judgment entails beyond that person's exclusive possession.”
Another possibility is for your husband to relinquish his ownership of the property, aka a title deed, and put your two daughters on the title of the home instead. This way he fulfills his promise to ensure your children inherit the house and should he predecease you you are in a more secure position.
Now a warning. First, your children would need to be trustworthy, and second, the home becomes an asset in the event one of them gets divorced. You get an 'increased tax base', meaning the home's appreciation over the course of your ownership is not taxed, but there are other tax considerations too, which you can read more about here.
An alternative is for you and your ex-husband to place your home in a living trust for your children, so your interests in the property escape probate testing and pass to them upon your death. Again, this would allow your husband to fulfill his desire to leave his share of your property to your children, provided he is honest in his intentions.
These are suggestions, not recommendations. You should not make a decision until you have discussed your state's laws with a real estate attorney and have analyzed your divorce decree in forensic detail. I understand that living with this uncertainty may not always be easy, but you are right to find a way out of this dilemma now while you and your husband are still in good health.
There is a way forward. You have options.
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