Post divorce home sale

[Bucky41]

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

I have previously posted some questions in Family Law and I'm not sure if this belongs there as well. Divorced 3/07 and decree states sell marital home and split proceeds 50/50. Declining market and disagreeable ex have not made it easy to sell home until now (no signed contract yet, but fingers are so crossed it's hard to type this ).

My ex stopped paying the mortgage one year ago. To prevent forclosure, I have kept up the payments myself. I want to simply sell this stupid house as quickly as possible. I have been told I can get back the portion he was supposed to have been paying at closing (over 8K). My question is this - If I decide to just sell it and not go after the money at closing & he decides to be jerky after closing will I still have the option to take him to court (small claims or regular court I'm not sure) down the road or will I have given up any hope of getting the money back? Is there a specific time limit on waiting?

He already owes child support and he's hiding money he's earning at a restaurant he started in NJ prior to the divorce (claims he doesn't own it but that's another thread). If letting him get away with the 8K gets the house sold and I no longer have to make a mortgage payment every month, it's worth it to me. I guess I'm concerned I'll not fight for the $$ at closing and then he'll start up and I'll be SOL.

Any insight would be greatly appreciated. Thank you.

 

[FlyingRon]

You need to go back to your divorce attorney. Absent some contract or court order, you can't just take money from the closing proceeds. If you wish to be expeditious about the sale, you will need to close now and sue him later. By the way if his name is still on the deed, you will need him to sign the deed (or if you are lucky have him sign it now).

The child support, etc... complaints are UNRELATED to the real estate matter.

 

[Bucky41]

Thanks for your reply. We were supposed to sell it immediately, but he wouldn't accept the offer (a good one) we got in April '07. When child support was ordered a couple of months later, he stopped paying anything to maintain the house (mortgage, water, electricity). I've put money into it to make it more attractive to potential buyers but figure if it gets the house sold, I'll foot the bill alone on that. I just thought he was legally and financially responsible for the mortgage as much as I am. His name is on the deed and he knows he will have to go to closing to sign off on all the paperwork. I'm hoping although the offer is much less than the one from 4/07, he'll stop trying to hold out for a better deal.

I apologize if I'm being dense, but when we were going back & forth in Family Court, his attorney stated to me when this issue was brought up that I would get his portion of the mortgage payments back at closing. This led me to believe that since the order was for the house to be sold we must both maintain it until that was done and then split the proceeds. Was she incorrect?

 

[tranquility]

I don't know about a later suit. I'd get the court to order an equitable split of the proceeds before sale. I can't see a cause of action unless the court ordered both parties to maintain the mortgage.

 

[Bucky41]

Thank you tranquility. I thought we both HAD to maintain the mortgage to avoid forclosure. Seemed 'fair' so I never checked the legal aspect of this. Bad part is I've used up all savings making these payments with no help from him thinking I'd get it back.

 

[FlyingRon]

Thank you tranquility. I thought we both HAD to maintain the mortgage to avoid forclosure.

That was correct.

Seemed 'fair' so I never checked the legal aspect of this. Bad part is I've used up all savings making these payments with no help from him thinking I'd get it back.

Fair is not an operative legal term. Absent anything that specifically says you are owed additional money from closing (which you appear not to have), you will get nothing. You need to go back to the court to pursue this.

 

[tranquility]

Did the court order you to avoid foreclosure?

 

[Bucky41]

Thanks FlyingRon. I figured fair and legal may not be the same thing. Should this be addressed prior to final sale (closing)? Which court?

You also mentioned having him sign the deed (now)...is this something that's normally done at closing or would it be in my best interest to have it done prior?

Last question (I hope), can I do this pro se? As stated, I used all savings already between mortgage payments, home improvements and Family Court legal proceedings so if I can handle this myself, I'd really like to...

Again thank you for your help.

 

[HomeGuru]

Thanks FlyingRon. I figured fair and legal may not be the same thing. Should this be addressed prior to final sale (closing)? Which court?

You also mentioned having him sign the deed (now)...is this something that's normally done at closing or would it be in my best interest to have it done prior?

Last question (I hope), can I do this pro se? As stated, I used all savings already between mortgage payments, home improvements and Family Court legal proceedings so if I can handle this myself, I'd really like to...

Again thank you for your help.

**A: these important matters are not a do it yourself.

 

[Bucky41]

Did the court order you to avoid foreclosure?

No - the decree stated to sell the home and split proceeds. We received an offer a short time later and he refused to accept what the buyer was offering. Child support paperwork then was sent and he stopped paying. There was no court order regarding the house/sale. While in Family Court, the issue of his not paying half the mortgage was brought up to him and his attorney outside the courtroom. His attorney stated he could not pay child support and help with the mortgage since he had to pay rent. She stated this was money I would get back at closing since he hadn't made the payments. Since my attorney concurred, I thought it was safe to trust this was what would happen.

 

[Bucky41]

**A: these important matters are not a do it yourself.

Very true...could a real estate attorney handle this (I happen to have one of those in the family) or should I find a lawyer specific to a different field? Which field (if so)?

Thanks.

 

[HomeGuru]

Very true...could a real estate attorney handle this (I happen to have one of those in the family) or should I find a lawyer specific to a different field? Which field (if so)?

Thanks.

**A: yes **************....

 

[Bucky41]

**A: yes **************....

HomeGuru, I sincerely hope your 'yes' means the real estate attorney can handle things (I've typed this 4 times...my hands are shaking with joy!).

Thank you ALL for the insight into this situation.

 

[HomeGuru]

HomeGuru, I sincerely hope your 'yes' means the real estate attorney can handle things (I've typed this 4 times...my hands are shaking with joy!).

Thank you ALL for the insight into this situation.

**A: I am not sure if this family attorney is versed in the scope of what you need but in general a real estate attorney should be trained to deal with deeds, mortgages, partitions etc. This indivdual would not for the most part get involved in the divorce issue.

 

[Bucky41]

Got it. Again, many thanks. I'll ask if this is in her scope and if not, maybe she can refer me to an associate who is comfortable with this.