Divorce Issues Affecting Title to Real Estate
If you are facing a divorce, and you do not know how you will handle your shared real estate property, then please call Lisa Irions today. Whether you want to put up the house for sale or give it a facelift, she will work objectively to ensure both of you are satisfied.
“I got the house in the Divorce!”
DID YOU? Your property settlement may have provided for you to retain your home, but do you actually have vested title clear of your former spouse? Judges in Divorce actions have the authority to grant title, but the wording in your divorce decree is critical in determining if you have actually received full title to the property. If the Judge “granted” you title in your decree, you have legal title and your ex-spouse is no longer an owner. HOWEVER, if the decree says you are “awarded” the property, or that the Court rules in your favor that you shall have the property, you must still obtain a deed from your ex-spouse to divest his or her interest. Too often the prevailing spouse believes they have clear, vested title to the property when in fact what they really have is the right to own solely. There must actually be a granting of the property in the public record, either by the court in the divorce decree or by the spouse on a deed.
Can I buy a home before my divorce is final?
YES! Arizona is a Community Property State, so generally when a married person desires to acquire real property in their name only, the spouse must sign a disclaimer deed waiving any interest the State grants under community property laws. When people divorce there often is not sufficient desire to cooperate and getting a disclaimer deed isn’t possible. Under Arizona Law, provided a divorce action has been properly filed and legal service of divorce papers can be documented, no disclaimer deed is required and the individual is free to acquire a title insured, sole and separate interest. HOWEVER, should the divorce not occur, the spouse would then acquire a community property interest.
My name is on the mortgage but my ex-spouse got the house.
Am I still responsible for the loan?
ABSOLUTELY! The lender made the loan in both names and is not obligated to release any of the responsible parties, whether the divestiture of the property is made willingly or forced by the court. You may petition the Lender to release you, but they are under no obligation to do so. If your ex-spouse defaults on the loan you can be held responsible for any deficiency after a foreclosure. The divorce court can condition the granting of the property upon the grantee spouse trying to qualify with the lender to remove you from the loan, or state that the ex-spouse is responsible for the obligation, but the court is unlikely to force the lender to remove you from responsibility if they are unwilling to do so.
My ex-spouse is no longer on the title to my home. Why are his/her debt posted as liens against my property? Are they Valid?
POSSIBLY. Many liens incurred by individuals can be assessed against any real estate they own. If your spouse had a judgment or tax lien levied against them during the time they were in title to the home, the obligation is potentially a lien on the property. If the spouse’s interest was not properly conveyed in the public record (see above)their liens can attach to the property until it is.
Provided by ETA as a courtesy only and not to be considered legal advise, always obtain proper legal counsel when needed.