Home > Research Legal Advice > Divorce / Separation > Can the court to give me full ownership of my home (joint tenancy) b/c e...
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Asked 12 months ago - Saratoga, CA
FlagMy home is owned in joint tenancy with my ex-husband and I want to sell it b/c it is a huge financial burden as he left me with a property that has two mortgages and I am indigent (unemployed & uneducated) but he refuses to sign off. He has not paid a cent into its mortgage or taxes since he left us (we got divorced a year later) - can I ask the court to to give full ownership on the basis that he abandoned his interest in the house? How many years before it is considered as abandoned? There is nothing in the divorce decree re: his obligation - only that it will be determined later.
Your divorce Judgment should have dealt in some ways with the house, whether awarding it to a party and providing for an equalization payment to the other party, or leaving it co-owned by the parties but converting its title to tenancy in common and setting forth payment responsibilities of each party and hopefully reserving jurisdiction to resolve issues that might come up regarding the house.
If jurisdiction was not reserved to deal with the house post-divorce, you may need to file a civil suit for partition and dissolution of partnership - but you could first try to address the matter to the divorce court in the hope that it would deal with the issues regarding your house - but you say that the divorce decree said that your husband's obligation would be determined later, so it would appear that the divorce judgment at least impliedly reserved jurisdiction regarding the house.
If your divorce judgment did not award the house to you and/or your husband, you could file a Motion [or as of July 1, 2012 a "Request for Orders", inasmuch as there are new forms as of July 1 that substitute for Motions and OSCs)] to adjudicate an unadjudicated asset.
From what I can glean from your question, you likely can file a Request for Orders to deal with the outstanding issues pertaining to the house.
There were likely terms in the Judgment that dealt with the house that you didn't include in your question, which might impact the relief available to you from the Court. It is unlikely that the Court would consider that your ex-husband abandoned his interest in the house, but it is possible (albeit unlikely) that your husband's failure to share in payment for the mortgage and taxes could affect his ownership rights pertaining to the house.
You should retain, if not consult, an experienced Family Law Attorney regarding the house, and among other things, discuss the Watts, Epstein and Jeffries cases in connection with your rights and obligations concerning the house, as well as the legal processes available to clarify the judgment, determine the parties' respective rights and obligations with regard to the house, and sever your and your husband's interests in the house.
If the court reserved jurisdiction over the disposition of the family home, then you need to go back to court and ask the court for the order you seek. However, I strongly advise you to consult with an experienced family law attorney to advise you of your legal options. The course of action you take depends a lot on how much equity is in the house, when the house was bought and for what price, what the post-separation contributions were to the mortgage payments and property taxes, etc.
If there is equity in the house, or you are attempting to preserve your credit score, then you would be well-advised to hire an attorney to represent you. If you do not, then you may be making the whole situation more complex, which will simply delay the inevitable--you will need to hire an attorney to fix things. :)
I am sorry that you are going through this, the court may do what you ask depending upon the equities of the situation and how much money he should have paid and what is occuring for you financially, the other issue you should look at is how to sell it without his assistance you may need a court order for that and it must be done specifically for that purpose. You may want to start with a contempt and then address the home as a remedy. take care and hope that things get better for you and your family.
Your question is a little confusing, in that you say that you have a divorce decree but do not say what, exactly, the decree says.
There is no legal argument regarding "abandoning" the house, in this context. It is jointly held and if you are in the house, then you are a fiduciary safeguarding this marital asset. You will need to preserve this asset to the best of your ability, within reason. This does not mean, however, that you should be saddled with the burdens indefinitely, if you cannot do it.
You say that the judgment does not address the mortgage, but does it address the ownership? If the house was awarded to you in the judgment, then you can record the judgment as if it were a deed. If this is the case, you can do what you want with the house, regardless of title, since the judge awarded it to you (regardless of what the title says). If it is, indeed, too much of a burden to even hold onto while selling it, and if there is no equity, then you could negotiate a deed in lieu of foreclosure with the bank. Or, in the worst case, you can abandon it, yourself.
If, however, the court has not already disposed of the house by a prior court order, and you do not wish to keep the house, then you should be able to file a motion to have it listed for sale by a real estate agent. You could even have a judge pro tem appointed to supervise the listing and sale. Equity, if there is any, will usually be divided, but could be subject to various credits for such things as post-separation mortgage payments, etc.
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