Ask a real estate pro: I want to sell, but my ex is not cooperating. What are my options?

Ask a real estate pro: I want to sell, but my ex is not cooperating. What are my options?

Q: I got the house in our divorce years ago. Now it is time to sell, but I am told he is still on title and will need to sign. Of course, he is not cooperating. What are my options? — Kamala

A: I see these sorts of problems constantly in my practice. Lawyers tend to specialize, and not all family lawyers understand the long-term ramifications of how a Marital Settlement Agreement and divorce judgment get drafted.

Many times, the primary residence is dealt with but investment property is ignored. Or, in some cases, the couple decided to forego the use of an attorney altogether, get divorced but neglected to deal with co-owned property. In either case, your first step is to review your divorce papers carefully. Most will order that one spouse deed the property to the other but do not effectuate transfer of the property in the judgment.

If this is the case, you need to get your ex to sign a deed now. If your ex does not want to do this, you may need to reopen the divorce case and ask the judge to enforce its ruling by holding your ex in contempt. This is time-consuming and expensive but almost always works. It can be more difficult if your ex is nowhere to be found, but you can accomplish it through the court. With this headache in mind, people with a pending divorce are well served to either get the judge to include the actual transfer of the property in its ruling or to make sure your ex signs a deed while signing the rest of the mountain of paperwork.

If the co-owned property was not dealt with in the divorce, either purposefully or because you forgot to include it, you need to move forward like any other joint property owners and to file a partition lawsuit. In this type of case, the judge looks at the circumstances of the purchase and ownership of the property to decide what is a fair way to split it. The judge considers factors such as how the down payment was made; who paid the mortgage, taxes and expenses; and how the property was used — then crafts a fair split. This usually requires that the property be sold, any debt be paid off, and the remaining equity be shared accordingly, although the judge may allow one party to buy out the other if that is what they want to do.

These suits are very effective in resolving the issue, but cost money and can take months or longer to work their way through the courthouse. So, as is the case with most lawsuits, it is best to work things out, if possible, without judicial intervention.

Board-certified real estate lawyer Gary M. Singer writes about industry legal matters and the housing market

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