My Mother-in-Law's House

[2Curious]

What is the name of your state (only U.S. law)? AZ

My mother-in-law's divorce from her husband of 17 yrs was finalized in December 2008. One of the assets from the marriage was a home in Hawaii. She currently lives in AZ but the the ex-husband decided to move back to Hawaii and agreed to take care of the business of renting out their former home. One of the stipulations of the divorce is that they'd sell the house within 2 yrs of the divorce. Well, he has a paying tennant in the house but has fell on hard times and has began missing mortgage payments and using the rent for living expenses. He lives in another friend's home rent free. When confronted about the situation the conversation became very aggressive and basically told her that nothing was going to happen and he wasn't selling the house now. To summarize everything, this home eventually could end up in foreclosure and potentially lose all the equity that has been built over the years. I believe he's still a little angry about the divorce and is unstable enough to risk well over $100K to get back at her. What recourse does she have to secure her equity and and not have to go through this situation in the future?

 

[latigo]

I realize that it is water under the bridge, but her example might serve as a lesson to others.

Because whoever was the divorce attorney that put you mother in this nightmare shouldn’t be practicing law! And your mother-in-law was not much brighter in letting her ex take over the management of the property and then move to the mainland.

If anything it should have been left in the hands of a bonded management company.

But it shouldn’t have been left to anything! It should have been sold immediately and better to have been distributed in her name so she wouldn’t be where she is now – chasing this jerk down to beg him to cooperate in a listing.

It was shear professional misfeasance on the part of her attorney not to foresee something like this. All he did for her was put her to a lot of time, trouble and expense to clean up the mess he left for her.
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With that off of my chest, you failed to tell us where the divorce was granted. But since you mention her moving from Hawaii and he moving back, I’m assuming the decree was issued in Hawaii.

If so, the only place she can reopen the case for post judgment orders is in Hawaii. She can’t do a thing about it in Arizona.

When I say, “post judgment orders”, I mean this.

ALL COURTS HAVE THE INHERENT RIGHT TO ENFORCE THEIR OWN ORDERS.

Here the court ordered that the parties were to sell the home within a period of two years. (Whether stated so or not, that implies that they are to cooperate in obtaining a suitable buyer.)

The two years have past. The obstructive ex is telling her that he intends to defy the court order preventing her from realizing her distributive share of the marital assets as ordered by the court.

So what can/could be done is that the divorce case be reopened; she files her affidavit detailing these circumstances with a motion for an order directing the ex to appear before the court and show legal cause why:

1. He should not be held in contempt of the court’s order.

2. The decree should not be amended distributing the home to her as her sole and separate property subject to an equitable lien representing his husband’s share of the equity.

2. He should not be ordered to render an accounting for all rentals received home and necessary outlay from those rental and that she have an appropriate credit off of the top of the net selling price.

Or if she finds a buyer, and the ex continues to refuse to cooperate, the court can sign the husband’s name to the deed of conveyance.

These are just some suggestions as how she could proceed against the jerk. But the thing to keep in mind is that the court can do whatever if finds necessary to see that its ordered are carried out to the letter!

All of which could have been avoided if she hadn’t hired and idiot to represent her.

 

[JETX]

Another option.... she could file a 'partition lawsuit' against her husband to force the sale of the property and distribution of any proceeds.
She would need to contact a local (HI) attorney to do this.

 

[2Curious]

My apologies for not being clearer on situation/divorce. They used to live in this house in Hawaii. My wife and I live in AZ and they eventually decided to follow us here to be closer to us and their grandchildren. They had a management co. at the time handing the rental of their home. Things fell apart for them down here and the divorce was granted in the state of AZ. He then moved back to Hawaii and they worked out this agreement that he'd handle the rental duties and mortgage as he had always till they sold the home within 2 years. Since hindsight is 20/20 it probably was not the best idea but they're reasonng was to wait a bit longer to see if the real estate market would rebound a bit so that their return would be better when they sold it. Unfortunately, it didn't work out for my mother-in-law as smoothly as expected.

Does this change the advice already given or would we just implement the same processes here in AZ?

 

[latigo]

(I thought I had posted this earier today. Perhaps in the wrong thread. Anyhow...)

Good! Then find her a competent Arizona family law attorney and let the ex incur the considerable traveling expenses should he choose to do so.
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Incidentally, there are a several of reasons why I didn’t suggest that she institute an action of partition of real property.

One is that the Hawaii’s statute on partition of real property (HRS §668-1) does not expressly extend to the partitioning court the option of ordering a private sale as opposed to ordering the property sold at public auction. It merely refers to the “usual practices of courts of equity”.

Secondly, should the Hawaii court have that option, i.e., ordering the parties to list and sell the home, she would simply be duplicating what has already been accomplished and faced with the same issues of enforcement, contempt, etc. as at present.

And there is the likelihood that the partitioning court, on the demurrer/motion of the ex husband, might deny the cause of action on the grounds that that the same issue has been already fully adjudicated between the same parties.

(I could be mistaken, but frankly I don’t see how the court could deny a motion to dismiss an action for partition on that ground.)

Also, it is possible that the divorce court could order the ex husband to pay her costs and attorney fees incurred in the proceedings supplemental to the divorce decree, which would not be available in a separate action for partition. Plus, grant her credit for any rental he has pocketed.
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I can understand why market conditions can influence decisions in these circumstances.

However, to me price is of lesser concern than incurring the frustrations and expenses that she is facing now (which commonly arise) and the even greater risks of leaving the home exposed to his judgment creditors, tax liens, mechanic’s liens, deterioration, cancellation of insurance protection, uninsured hazards, (tsunamis), etceteras.

These are just my normal dumb thoughts. Find her a good attorney (expensive) and proceed from there, not here.

Sax