Mortgage/refinance question


#1

I kind of had this question answered in a previous question but just wanted a little more clarity. My STBX and I have a separation areement in place that is signed and notorized since October 2008. We have been separated and living apart since August 7, 2008 so I can file for divorce on August 7, 2009 and am going to be representing myself. There are no kids involved etc… The mortgage and deeed is in both of our names. In the separation agreement it does state that she gives up all rights to the house and property and that I am in sole possession of the house/property and any debts etc… and the only way that she would get any money is if I deceided to sell withing 3 years of the date of the agreement in which case she would get half the proceeds (nothing stating about refinancing or me keeping the house in its current mortgage). Now that the time is getting close for the divorce she has stated that she will not agree to the divorce until the the house is either sold or refinanced so that her name is off the mortgage and she receives half the proceeds. My questions are can I file and be granted the divorce with her name still being on the mortgage? and is there any way she can hold up the absolute divorce process since the agreement is in place? Do I need to include the separation agreement in with the Cicil Summons and Complaint paperwork when I file it with the clerks office on August 7th? Also she lives in a neighboring County now. Can I turn the paperwork in to my County that I live in? Any other paperwork to file besides the Civil Summons papers and Complaint form?


#2

You may file your complaint for absolute divorce on August 8, 2009. The waiting period is actually one year and one day.
If the separation agreement outlines the terms of what will be done with the home your stbx cannot change those provisions now, nor can she do anything to block the divorced. So long as the agreement does not require you to refinance the mortgage she cannot force you to do so now, and the divorce will not affect the mortgage title.
The separation agreement does not need to be filed with the divorce, which you may file in your county of residence. The complaint, summons, and in some counties a domestic civil action cover sheet are all you need to file the divorce complaint.


#3

On top of the above and to show how desperate my STBX is today I had to pick up a civil summons and the complaints being were for Relief for Post-Separation support and Relief for Equitable distribution. The notarized separation agreement is explicit in respects to both of these matters in that 1st under both the Section for Waiver of Alimony it states that each party waives all rights past and present against the other for support postseparation or otherwise etc… with the exception of the health insurance coverage stipulation that she remain on my insurance until we are divorced (which she has supposed to have been reimbursing me for and hasn’t even done that). 2nd under the section for Waiver of Rights to Equitable Distribution it states that each party waives any and all other rights now or hereafter to claim equitable distribution under the laws of this or any other state and agrees that this provision be pleaded in bar etc… I’m not sure what she is trying to accomplish but I guess my question is is there anything that she can actually do from the sounds of it or is she just wasting my time? I’m fixing to retain counsel since all this is coming up I guess even though I didn’t really want to or think I would need to. Any other suggestions? Thanks again for any input ahead of time


#4

This is a perfect example of why you do NOT sign anything in a separation agreement that you’re not willing to live with. Your STBX has decided she doesn’t like the terms of the agreement that she signed (and had notarized) and so she’s trying to get it changed.

I’m sure she can ASK for a change, but unless you agree, I do not believe it can be changed. I’m not sure what ‘pleaded in bar’ means. I’m sure the lawyer can shed light on that.

OH…and if she hasn’t been paying you back for the insurance…and she’s bound to by the agreement…she is in breach of contract. You could issue a Show Cause on that issue.


#5

You will need to answer the complaint and plead the terms of the agreement in defense, and in support of a motion to dismiss the suit in its entirety. You spouse has specifically waived her rights to bring suit on these issues, and that waiver is binding.


#6

Yeah I know its ridiculous. Thats something I’m probably going to do.

Thanks for your help again. It’ll all be over soon just another speed bump in the road I guess