Final agreement on house- need input, please.

[JDoe]

Hello, Friends!

BPDXH is willing to buy out my interest in our house.  Not for a great price, at all, but it will be a blessing to be finished with him for good.

We've been working through our poor realtor and she says I should write up something, or have my L do so, right away, while XH is being agreeable.  It's his deal, so of course he's being agreeable.  Sorry, beside the point.

My L has never been helpful.  From making our final divorce agreement so general that XH wiggled out of giving me the rest of my things to not being aggressive AT ALL, that I am not interested in paying him to maybe do what I ask, for once.

So, I have this in mind to type and email to realtor (thus NOT having my signature on it, until after XH signs):

"Mr. JDoe agrees to refinance the mortgage in his name alone, and pay Ms. JBro $X,XXX, by May 1, 2013. 

Following this, Ms. JBro agrees to sign a quit-claim on the deed.

Signed:

Signed:

Notarized:"

What do you guys think?

[Rose Tiger]

Congrates JDoe.    How about this, legal eagles?  I am in no way an expert on legal stuff.  

So, I have this in mind to type and email to realtor (thus NOT having my signature on it, until after XH signs):

"Mr. JDoe agrees to refinance the mortgage in his name alone, and pay Ms. JBro $X,XXX, by certified check by May 1, 2013. Upon receipt, Ms. JBro agrees to sign a quit-claim on the deed.

Signed:

Signed:

Notarized:"

What do you guys think?

Wait, that's wrong isn't it?  He needs to get your name off the mortgage.  Drrr!

[ForeverDad]

I agree, getting Ms Doe's name off the mortgage, typically by paying off the current mortgage either with cash or a refinance, is the #1 priority.

Mr Doe may not get refinancing unless the new lenders are assured the quit claim deed is real.  So Ms Doe may have to sign one in advance and have it held secure in escrow until it is released at the signing of the new mortgage.

By the way, most state laws say the borrower has a few days to back out of the new mortgage agreement.  What protection would Ms Doe have if Mr Doe backed out of his own mortgage after getting the quit claim deed filed?  I doubt a quit claim deed can be unfiled?  I wonder if the lender holds the quit claim along with the other paperwork until the cancellation period has passed?  Would she need something in writing that if the new mortgage was cancelled, then Ms Doe gains possession of the house in 30 days, Ms Doe has full and unrestricted right and control to sell the home and the equity proceeds will be split equally, minus sale/repair expenses, with Ms Dow keeping Mr Doe's payment for her expenses and efforts.

What I'm saying is that any agreement has to have some "teeth or consequences" or he will trash it somehow.  Probably a lawyer is required to do it right?  Doesn't mean it has to be the same one.

[Rose Tiger]

At my ex's closing on his house in December, I had to go and sign something because we were still married.  Maybe that is how it would work at the closing of the refi, JDoe get's a check, signs the quit claim, and is free to go.

Except I didn't get a check and I don't know what I signed.  My eyes were all tears blurry.  When I re-financed my house, he had to be there.  His name was taken off the mortgage and he signed a quit claim.  No check for him because there had been negative equity during the marriage.  Again, no check for me either.  :)urn it.

[ennie]

I am a property attorney, and I strongly recommend against that approach.  I strongly recommend that you see assistance from a property/real estate attorney who can make sure you draft an enforceable contract.  My suggestion is actually that you get someone to actually draft not just an agreement, but that you effect the sale (so long as he can do it now, or begin paying).  If you cannot afford and attorney, a title company can be helpful in this regard, or an escrow officer.

Your divorce attorney is most likely not the right attorney for this.  But it is quite simple to find an attorney through an attorney referral service or by asking around.  You could ask your attorney to refer you to a real estate attorney who is good and affordable.  Most family law attorneys do not necessarily do property law and real estate law.  So it is likely that your attorney will not be offended by this. 

I want to give as an example a client of mine who (before they were my client) downloaded a bunch of forms from the internet and wrote up some contracts to transfer property from one person to another.  They did it all wrong, and when the party stopped paying the payments for the property, my client had no remedy and no rights under the contracts to force the person to pay, and came to me.  It took a great deal of wrangling with the other party and many long complex documents later to fix the problem.  I charged them an inexpensive rate, but at prevailing rates it is likely that if would have cost $5000 to fix this problem, whereas they could have paid as little as several hundred dollars in the beginning for a totally adequate set of documents.  It is a really bad idea to do this yourself, because you need to make sure this is enforceable--not to say that what you wrote is not, but just to say that I am not allowed to provide you with legal advice if you do not live in my state, and that your writing leaves out some things that usually are included.  With a BPD person, I think it is worth investing a few hundred dollars into a robust legal document; and this will be much more affordable than a divorce attorney. 

Good luck!

[Rose Tiger]

True, when someone transferred to my state from the east coast to the company where I worked, they were shocked that atty's don't attend house closings here.  I had never heard of such a thing until this coworker told me about it.    

[ennie]

I want to clarify that my response above is to the author of this thread... .  not to the other posts.  Just making sure that was clear. I am advising against the approach of doing this on your own without an attorney, title company, or escrow officer... .  one of these professionals should be employed with such a large transaction... .  for most people, their home is the biggest financial investment of their lives, and legal fees for simple contracts tend to be remarkably low by comparison.  So it is worth a few dollars to do it right. 

[JDoe]

Thanks to each responder!  Your input was so helpful.    I thought it over and then asked a dear friend who is an attorney and sent this to the realtor to present to XH:

Mr. JDoe will complete the following on or before May 1, 2013:

1. Refinance the mortgage for the home at XXXX,XX in his

name alone.

2. Pay Ms. JBro $X,000 USD.

If Mr. JDoe does not complete the obligation by May 1, 2013, then he agrees

to pay an extra $1,000 to Ms. JBro for each month after May 1, 2013 until he

completes the refinance and makes the payment.

Upon Mr. JDoe fulfilling these terms, Ms. JBro will sign a quitclaim on the

deed of said property.

Signed:

Notarized:

Signed:

Notarized:

We agree that while XH may or may not do what he's supposed to do, this document could be taken to court and he could be sued over it. 

Will just pray that he does the right thing.  For once.  Another dear friend who is a counselor agrees that he may have a new victim girlfriend, so he is wanting to split up our last shared possession.  Yay for me!

[ennie]

Sounds great!  Way to act fast!

[v123uf4]

I bought out my BPD ex's share in our house. When I applied for the loan to do the refi, the underwriters did not accept the document we had drafted detailing our agreement. Because our divorce decree did not detail the terms of the buyout (it only stated percentage of ownership in the property), they required the document to be drafted by a real estate lawyer.

[livednlearned]

I am a property attorney, and I strongly recommend against that approach.  I strongly recommend that you see assistance from a property/real estate attorney who can make sure you draft an enforceable contract.  My suggestion is actually that you get someone to actually draft not just an agreement, but that you effect the sale (so long as he can do it now, or begin paying).  If you cannot afford and attorney, a title company can be helpful in this regard, or an escrow officer.

Your divorce attorney is most likely not the right attorney for this.  But it is quite simple to find an attorney through an attorney referral service or by asking around.  You could ask your attorney to refer you to a real estate attorney who is good and affordable.  Most family law attorneys do not necessarily do property law and real estate law.  So it is likely that your attorney will not be offended by this. 

I want to give as an example a client of mine who (before they were my client) downloaded a bunch of forms from the internet and wrote up some contracts to transfer property from one person to another.  They did it all wrong, and when the party stopped paying the payments for the property, my client had no remedy and no rights under the contracts to force the person to pay, and came to me.  It took a great deal of wrangling with the other party and many long complex documents later to fix the problem.  I charged them an inexpensive rate, but at prevailing rates it is likely that if would have cost $5000 to fix this problem, whereas they could have paid as little as several hundred dollars in the beginning for a totally adequate set of documents.  It is a really bad idea to do this yourself, because you need to make sure this is enforceable--not to say that what you wrote is not, but just to say that I am not allowed to provide you with legal advice if you do not live in my state, and that your writing leaves out some things that usually are included.  With a BPD person, I think it is worth investing a few hundred dollars into a robust legal document; and this will be much more affordable than a divorce attorney. 

Good luck!

Hi ennie,

I'm in a similar situation. The closing for my house is next Wed, now that the refinancing is in place (7 months later). N/BPDxh tried to get me to go to the house for the notary signing (bleh!) but my (family law) attorney said just have the documents sent to her and her people will notarize for free.

Should I have those documents looked at by a real estate attorney? I'm on the East Coast and we have to have real estate attorneys present at closings. I won't be getting any proceeds from the sale of the house, but I want to be sure I don't end up being responsible for the home equity (maxed out), or anything else my ex could do to harm me. He's an attorney, but I'm learning that he's a very disordered attorney, and apparently not a very good one.

LnL

[ennie]

I tend to believe that if people can do it themselves without an attorney, that is great... .  but when it comes to large real-estate transactions, it is great to have an attorney with expertise in that area review the paperwork.  A divorce attorney can be quite qualified to advise you--many attorneys have experience with real-estate transactions.  Just ask your attorney if they are experienced in that area.  If you trusted your attorney to deal with divorce, you should be able to trust him/her to let you know if they are qualified in that area of law.  I was just pointing out that it is a different area of law... .  but many attorneys are familiar with more than one legal specialty. 

[livednlearned]

I ended up hiring a real estate attorney to help me with the refinancing, and I'm so glad I did.

Turns out that N/BPDxh was trying to stick me with the home equity ($40K). The attorney I hired said no to the closing, and told N/BPDx to go get the home equity refinanced too, taking my name off it.

Bleh.

Anyway, thanks for this thread. I think I would have ended up with a whole new nightmare if I hadn't gone with a real estate attorney. There's a lot going on there -- not easy for a layperson to really understand.

[ennie]

So glad you received the help you needed.