My divorce decree states that I have exclusive possession of the marital residence. The deed has my ex-husband’s name, and my name as his wife. I approached my ex-husband to sell the house.
He has been absent, without any knowledge of his whereabouts for several decades. He has had no contact with my younger daughter after the age of two (she is now 44) and the older daughter since she was 12 (she is now 52 years old).
We were married for 11 years and had a 27-year mortgage to pay off. I remarried 36 years later, and we paid for the mortgage, child support and major repairs to the house, as well as putting my daughters through college without any student loans.
I offered the amount of money that was his share of down payment and mortgage payments. He refused and stated 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 different answers from different attorneys and do not want to mess up with incorrect information.
Confused and Desperate
It must have been an ordeal to have this hanging over your head as you struggle to pay the mortgage each month. Ideally, it’s better to refinance the mortgage and title the home in one person’s name at the time of the divorce. Otherwise you are left with a situation such as this, where one party takes on the financial responsibility, even though they own 50% of the house.
Steve Braccini, an attorney with the law firm Sheppard Mullin in California, says that given that you paid off the lion’s share of the remaining mortgage, you might have the option of filing a “quiet title action,” which is generally used when there is a disagreement over the ownership of a property, alleging that you are now the sole owner of the property.
“That’s assuming the ex-husband did not contribute to the payoff of the mortgage in the many years since he went MIA,” he says. “Most importantly, the divorce decree might contain a provision for the division of assets and property, so it is important to first determine what the decree provides beyond this individual’s exclusive possession of the property.”
Another option is to have your husband relinquish his ownership of the property, aka sign a quitclaim deed, and place your two daughters on the title of the home instead. That way, he will fulfill his pledge to ensure your children inherit the home, and should he pre-decease you, you will be in a more secure position.
Your children would need to be trustworthy, and they would each have to sign a postnuptial agreement with their respective spouses in the event that they divorced. They get a “step-up in tax basis,” meaning that the appreciation in the home over the course of your ownership is not taxed, but there are also other tax considerations, which you can read more about here.
An alternative is for you and your ex-husband to put your house into a living trust for your children, so your shares in the property avoid probate and are transferred to them upon your deaths. Again, this would allow your husband to make good on his wish to leave his share in your property to your children, assuming he is honest about his intentions.
These are suggestions, not recommendations. You should not make any decision before talking to a real-estate attorney about your state’s laws, and analyzing your divorce decree in forensic detail. I understand that it can’t always be easy living with this uncertainty, but you are right to figure out a way out of this dilemma now while you and your husband are still in good health.
There is a way forward. You do have options.
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