Our house is going on the market in 5 mos. How do we legally agree on terms to keep house pmts going and make it fair? We will be splitting the equity; no problem. Does he make half the pmts/utilities/upkeep since it's still his house too? Should he pay house costs instead of spousal support until house is sold? Then, spousal support would begin?
Family Law Attorney
It is quite common to get divorced before selling a home owned by both spouses. How you do that depends entirely on what you want to happen to the house. But there are a few constraints to bear in mind:
The most important thing to remember is that your divorce is a lawsuit between you and your spouse. Nothing you do in the divorce case can affect the rights of any third parties, such as your creditors and home lenders. If you and your spouse are both signers on the house's mortgage note, then you're both equally responsible for that debt, and you remain so even if the divorce decree says that one of you is to receive ownership of the house. If that's your goal, then the only way to remove the other person from responsibility for the mortgage is for the person who receives the house to refinance. But if the house has less equity than debt, then that's likely impossible. There is no solution to that problem. The only thing to do in that case is to wait, and hope that the house's value can rise and it can be sold or refinanced - or, if it is foreclosed upon, that your mortgage agreement doesn't allow for deficiency judgments. But this is all quite speculative and technical, so moving on:
If neither of you intends to keep the house, and you want to sell it, then you can include terms in your divorce decree to direct the sale of the house and fairly distribute the proceeds.
Your question implies that your husband is leaving you in physical possession of the house for the time being. If that's the case, then you've got to consider that you'll both need to be able to afford a place to live while this works out. There is no law that says one partner has to pay spousal support, or utilities, or whatever - these things can be agreed by the parties in whatever way works, or if you can't agree, you can submit the dispute to a court for a decision. The law requires an 'equitable distribution' of assets, and the court will be more concerned with assuring that everyone will be able to survive, than with assuring that everything is exactly "just."
If you're going through a divorce, especially one where the ownership of real estate is at stake, you need to consult with an attorney in private. This is not a do-it-yourself process.
Please read the following notice: <br> <br> Jay Bodzin is licensed to practice law in the State of Oregon and the Federal District of Oregon, and cannot give advice about the laws of other jurisdictions. All comments on this site are intended for informational purposes only, and do not constitute legal advice or create an attorney-client relationship. No posts or comments on this site are in any way confidential. Each case is unique. You are advised to have counsel at all stages of any legal proceeding, and to speak with your own lawyer in private to get advice about your specific situation. <br> <br> Jay Bodzin, Northwest Law Office, 2075 SW First Avenue, Suite 2J, Portland, OR 97201 | Telephone: 503-227-0965 | Facsimile: 503-345-0926 | Email: firstname.lastname@example.org | Online: www.northwestlawoffice.com
I would have a family law lawyer help write up an agreement for you in respect to how the property is sold etc. I would have your spouse also retain counsel to assist in preparing the agreement. Both you and your spouse should be represented by your own counsels since a conflict exists between the two of you.
3 lawyers agree
Family Law Attorney
The concluding document in a dissolution of marriage matter is called a general judgment. It is intended to set out the final decision of the court regarding the division of property and the allocation of debt in the case. That is not always possible. Sometimes the best way to divide up property is to sell it and divide up the net proceeds between the parties. You can include provisions to deal with the sale of property in the general judgment. You can also include provisions to deal with the resolution of problems that might arise regarding the sale. These provisions can be included in a general judgment which is stipulated to or agreed to by the parties. The inclusion of these provisions is not an easy or obvious thing to do. Finally, the decision as to who should pay the mortgage pending sale of the house and whether either party should pay spousal support to the other are very different issues. The award of spousal support is subject to statutory rules that the allocation of expenses pending sale are not. You need to consult an attorney who is experienced in Oregon Family law and Oregon Real Estate transaction law.