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Does HARP refi constitute sell of marital home?

Stockbridge, GA |

My divorce settlement requires me to put the home I shared with my ex-husband (divorce finalized 4 years ago) on the market 6 years after the divorce. After fees and my down payment, principle payments I have been making since a year before the divorce and repairs I have paid for the home, we are to split the profit 60/40 with 40% going to him. I recently refinanced my home (it has always been in my name soley) under HARP. I am receiving a grand total of $100 (because of a credit from my new lender) as a result of this transaction. Does this HARP refi constitute a sell and am I in compliance with my divoce settlement?

Attorney Answers 3

Posted

Since your settlement agreement is not posted, and it should not be, I can only give you a general answer. You should talk to your divorce attorney for more specific advice. Generally, a refinance is just a restructure of the loan, and it would not be a sale of the property under Georgia real estate law for purposes of most divorces. However, your divorce settlement could have said something else. Check with whomever you used for your divorce. It should be a quick call and a quick answer.

This answer is for general purposes only, and it does not create an attorney-client relationship.

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Posted

A "sale" involves a buyer relinquishing ownership to a seller. A "refi" involves the owner paying off an existing loan in exchange for a new loan but maintaining ownership of the property. These are not the same thing.

The real question is whether your divorce decree would allow you to refinance the loan rather than selling the property. It is most likely that it won't, but that question cannot be answered definitively without knowing what your decree says. You should consider asking the attorney that represented you in your divorce if this would satisfy the requirement.

~ Kem Eyo

The above answer is a general explanation of legal rights and procedures. It does not constitute legal advice. Nor does it establish an attorney-client relationship between the individual posting the question and the attorney providing the answer.

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Posted

Almost certainly not unless you have some truly bizarre wording in your papers. Since the wording of your papers is the sole source of the answer, you should be calling the one person who has read them - your lawyer from the divorce.

If you find this answer helpful, please mark it here on AVVO as helpful. In answering you, I am attempting to communicate general legal information and am not representing you. Do feel free to call me at 404-768-3509 if you wish to discuss actual representation (the phone call also does not retain counsel; that requires an office visit and appropriate paperwork). In that a forum such as this provides me with limited details and doesn't allow me to review details and documents, it is possible that answers here, while meant to be helpful, may in some cases not be complete or accurate, and I highly recommend that you retain legal counsel rather than rely on the answers here. (You can also email my office at geaatl@msn.com . An email also does not retain my office, but can help you get an appointment set if you prefer not to call). Any information in this communication is for discussion purposes only, and is not offered as legal advice. There is no right to rely on the information contained in this communication and no attorney-client relationship is formed. Nothing in my answer should be considered as tax-advice. To ensure compliance with IRS Circular 230, any U.S. federal tax advice provided in this communication is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer (i) for the purpose of avoiding tax penalties that may be imposed on the recipient or any other taxpayer, or (ii) in promoting, marketing or recommending to another party a partnership or other entity, investment plan, arrangement or other transaction addressed herein. I am also required to advise you, if your question concerns bankruptcy, that the U.S. Congress has designated Ashman Law Office as a debt relief agency that can help people file bankruptcy.

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