The house is in both of our names. We owe almost as much as the house is worth. If we get a divorce, I don't care if she has it.
Divorce / Separation Lawyer
No, no, no! Your greatest concern should be to get your name off the mortgage, and this requires that your wife either refinance the house in her name only, or the house should be sold. As long as your name is on title you will have more leverage and influence on what is done with the house. You have no idea how often spouses split up, one takes the house and promises to refinance, and then the other spouse cannot purchase another house because the first house is still counted as their own personal debt, and it is NEVER REFINANCED. Now is the time to force the refinance or the sale of the property, not after the divorce is over, and you are suffering and in pain because the reality of your decision has come back to hurt you.
Do it right the first time and it will be cheaper for you in every way. I realize there is a temptation to please your wife, because you probably think your divorce will go better if you make some concessions. The idea is good, but this is not the kind of concession you want to make. Trust me on this. Consult with an attorney before you make any such drastic decisions which you cannot take back later on.
Office: (410) 381-1656. This is NOT legal advice, is GENERAL INFORMATION ONLY, and does NOT establish an Attorney/Client Relationship with you. Therefore my answer cannot address your specific legal situation and you should not rely upon my answer in your legal matter. I am an attorney licensed in Maryland and California. Office: (410) 381-1656. David Mahood, Esq.
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Divorce / Separation Lawyer
If nothing else, it is a bargaining chip for you. Secure some concession from her in exchange for the house. However, make sure that you have an out. If you are jointly on the mortgage, make sure that she agrees in writing to re-finance the property and take you off of the mortgage within a reasonable amount of time and that if she fails to do so the property will immediately be sold by a mutually agreed upon realtor or a trustee if necessary. You could even write in a clause that provides you with the right to re-enter the property and exclude her so that you can make sure it is sold in a timely manner. Also make sure to include clauses for her to indemnify and hold you harmless from any liability and for her continued occupancy of the house. You should also consider a clause that requires her to maintain the house in marketable condition in the event it is to be sold. This would even include allowing a lockbox on the house and requirements that she show the house upon reasonable notice from any realtor. These types of deals can get very complicated, but are capable of being drawn up in such a way as to afford you adequate protection if she fails to perform by not having you removed from the mortgage in a timely manner.
You should definitely speak to a lawyer before making any settlement. If she is unwilling to do the things described above and you have no other good motivation for acceding to her desire, such as young children living in the house, etc., then your best solution would likely be to insist on sale of the property now.
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