Delay of sale of residence


#1

Unfortunately there’s not a lot that can be done. The home must be put on the market for sale. If you feel that there are steps being taken to prevent the sale or deter potential buyers then you should contact your attorney. In the current market, finding a buyer for a home may not be a simple matter of listing it for sale and I’ve seen a lot of asking prices being dropped to the lowest point that can be gotten in order to make a sale…
If you are waiting on money from the sale of the marital home, you should consider that you may be in for a long wait. If you can not wait, you may want to consider discussing the other spouse buying you out of what you would be given after the sale…


#2

Sadmoon, I am in the same situation and it is a catch-22. I have been paying for the house as part of post-separation support, but the sale has dragged on for over a year. Granted, the market is down as Stepmother says, but why should we be responsible for continuing to pay? I think there is very little motivation on the part of my soon-to-be ex-spouse. On the one hand, she can mandate a higher than reasonable sales price for the house and hope somebody will pay and she wins since the split will be larger; and/or the sale takes a long time (it has) and she wins b/c I am paying the mortgage. Doesn’t seem at all fair.

What is the best approach? I am considering not paying any further.


#3

I am on the other side of this issue.

If you don’t like the separation why did you sign it? The housing market has gone down for over a year.

If you quit paying the mortgage then for every month your stbx has to pay the full mortgage, your equity goes down by what you would have paid. Eventually (years?) it will go to zero. If you quit paying she can also take you to court for breach of contract (plus attorney’s fees). If she cannot afford to pay the full mortgage and has to short sale the house you are still on the hook to pay half of the mortgage on a house that neither of you will ever get. That is kind of an Armageddon scenario.

If you take bankruptcy then you will have to list the house as a asset. It is possible the bankrupcy trusty will want to take the house. Since you don’t live there you can’t shield it.

I would like to know what others think.


#4

Thank you Stepmother. I was afraid you’d say that. Lots of houses on the market, and it could take forever. (How could I pay for mortgage on unsold home and be expected to pay alimony?)

Stbx has no means of buying our house except through father who would offer very low buy out. So we’re left splitting debt rather than assets, and he will take care of stbx’s debt.

(Ready2divorce, I doubt anyone will advise you to stop paying on a mortgage. That would be advising you to breach a contract, in my opinion.)


#5

Is your ED an agreement or court order? If you have not obtained an absolute divorce and your ED is by agreement, it may be possible for the courts to step in and force the sale…but there again you have the situation of the market and forcing the sale may not be in your best interest. There’s no way to prove that someone is not actively trying to sell the home if it is listed. And your ED probably does not specify that the home must be listed with a realtor. There are quite a few homes in my neighborhood that are “For Sale by Owner” and have been for the better part of 6 months or more.

No, stopping payments after signing an agreement is not a good idea. Not only will this affect you legally, but it will also affect your credit. The mortgage company doesn’t care who is paying them as long as they get their money. If the stbx does not ultimately want to sell the home, you may want to discuss refinancing so that your name is off the mortgage. Unfortunately, there are few other options than to keep paying regardless because you did sign the agreement.

It may mean for both of you that you simply must take a loss on this in order to move on. Divorce often does set you back finacially, or worse bankrupt you, and most especially if you are the supporting spouse.
If your stbx’s father can cover her debts then discuss this option with them and run with it. Let him buy the home so that you are done with it. Yes, he could sell or give the home to her, or sell it later for a much bigger profit, but is what he makes really worth it? How long are you willing to wait for a resolution? It all really depends on how badly you want to get rid of the connection to the ex and how much you are willing to give up.
The sad thing about divorce is that no one wins. Some come out better than others but everyone must make some sacrifices…

I hope others that are just now separating or discussing this take note. Put stipulations on the agreements about the marital home that the remaining spouse will refinance within a certain amount of time…or that within specified time frame, the remaining spouse will be solely responsible for future payments…something to that nature. I realize that this doesn’t help you, but it could help others.


#6

Great advice. Actually I am still in the drawing up phase of the ED and have not left the residence yet. How do you negotiate that kind of deadline you’re speaking of, without bringing in marital fault? It seems that the in-spouse has no real incentive to agree to any deadline, whether refinancing or sale…


#7

If your stbx is attempting to keep you paying the mortgage payments as a result of marital fault then the option of alimony needs to be looked at. Either spouse may request alimony if the other makes more money. NC is a no fault state so the only time marital fault comes into the picture is that it negates a claim for alimony. The alimony can be used for the mortgage but you do not have to agree to keep paying it because of fault.

The agreement is just that, an agreement. If there is something in the agreement that you do not agree to, DO NOT sign it. Your spouse also has the option of not agreeing to any part. Make the stipulation however you feel most comfortable with. If you want to stipulate a time frame you should consider whether the remaining spouse has the ability to take over paying or will. If you feel that the remaining spouse will take advantage of the situation then it may be best to reconsider who moves from the residence…or put into the agreement that if a specific price is met then home must be sold. If the stbx does not agree, they have the option of not signing. You could also stipulate in the agreement that you continue paying the mortgage for a specific amount of time in place of alimony…at the end of that time frame the home must be sold or refinanced whichever is the better option.

If there is no agreement in place and you can not agree on this, then you will probably need to take it to court and let the judge divide assets…


#8

Thank you, Stepmother.

You always have good succinct advice. There is no marital fault here, just disagreement over me moving out and getting 50/50 of the assets, debt, and 16 yr old’s time. Stbx feels best that we tolerate each other until some future date for child’s sake, and is not seeing it best the for child’s sake that we part. ED drafting is secondary, but still a factor met with resistance, which would probably result in slow sale or refi for any reasonable amount.

The only reason I brought up the word “fault” is that “fault” seems to be the only compelling (but missing) motivator in getting to any kind of “agreement” as to a time table for sale or refi. I have suffered many personal indignities and even creative abandonment, but have not made it a legal issue. If I could afford 2 residence payments, I would not be so concerned, but I just feel trapped by this whole miserable situation.


#9

I can tell you from my own experience, if you are in a situation where you are living in misery and being humiliated for the child’s sake and that child is 16, you are not looking at the child’s best interest.

At 17 my father and stepmother separated. It was not the easiest time for me but I had watched them go days without speaking or listened to them arguing all night for years. It was not the type of environment that I wanted to remain in and I spent a lot of time at a friends home. When my stepmother asked me how I would deal with it if she left, I told her that we would get through it because I knew they weren’t happy. I hated seeing them that way and I could not see any reason for it to continue because of me. They spent almost a year apart and then reconciled.

I have to say that staying together solely for the children is an excuse. If you do not want to be in the marriage, staying in it just because of the children is only going to make you more bitter about it. I’m not saying that your marriage couldn’t work, but it takes two to make it work and if you are not both committed to it, and you both know that it’s going to end, staying together for any length of time will be more difficult. Chances are, your child is not oblivious to the fact that you are not happy…do you want the child growing up believing that this is how marriage is supposed to be? That this is how you treat your spouse? Just my opinion though…


#10

Agree totally. I am convinced it’s not in our child’s best interest, and even our child agrees. Yet, since I requested full & equal time, sbtx says separation is not in the child’s best interest and won’t agree to anything.

So I am left with stbx in control of child’s daily schedule, with trips and vacations ensuing without me. The same happened years earlier as well, with an extended vacation trip with youngest, while oldest child stayed with me.

This “arrangement” leaves home intact and bills paid for stbx, with the occasional irritation of having me physically around. This is beyond humiliation. Should I re-title this post as “Sordid Sucker Stays Home Alone”?


#11

I suggest that you consult an attorney. It sounds as though you don’t quite know what your rights are or where you stand. You are not a “sucker” though I can understand why you may feel that way. Almost all of us have been there before so you are not alone in that respect.
Both of you would be entitled to 1/2 the marital assets and debts, regardless of whether your spouse agrees to this or not. Depending on circumstances, there may be an unequal division of assets and debts, but an agreement is trivial. It’s easier finacially and emotionally to come to an agreement and settle without going to court. And you have more room to negotiate. If it goes to court it is cut and dried. You get this, stbx gets that. You pay this, stbx pays that. This is sold and money divided equally.

You are entitled to equal time with your child until you either have a court order custody or agree to a custody schedule. The child’s best interest is to have both parents as involved in thier life as much as possible. Providing there are no abuse or neglect issues, this is what the court would like to see. If you can not agree to custody you would file for it and go through mediation.
Since your child is 16 there is little that the courts would do to force your stbx to have primary physical custody…even the courts know it’s difficult to force a teenager to do anything. You agreeing to joint legal and physical custody with equal time will look a lot better for you than the stbx not agreeing to anything…

Please, consult an attorney in your area.


#12

If there is a contract requiring the immediate sale and on party is dragging their feet then the out spouse could file an action for breach of contract and ask the court to intervene in the situation.

If there is a court order requiring the sale the out spouse can file a motion and order to show cause.

P.S. Please feel free to bring up this or any other topic on our live call-in show every Wednesday at 11:00 a.m. EST. Visit radio.rosen.com/live for details

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#13

What exactly is a “motion and order to show cause”?


#14

A motion and order to show cause is a motion filed before the court requesting that they order the other party to come to court and explain why they violated an order or prove that they did not violate an order.

Many counties have a form available at:

www.nccourts.org

P.S. Please feel free to bring up this or any other topic on our live call-in show every Wednesday at 11:00 a.m. EST. Visit radio.rosen.com/live for details

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#15

Greetings. I am concerned about what I have read about the delay of sale of the marital residence and its potential impact on the “out-spouse.”

If an ED agrees to “immediate reasonable sale of martial residence,” what is to keep the “in-spouse” from continuing to enjoy the marital residence indefinitely?

Thank you!