Q: I have been divorced for over 4 years. It states in divorce that the home will be sold or refinanced in that time period
I still reside in the home with our son. I am in the process of refinancing at this time. My ex is to receive 40% equity in the home. About 11/2 years into the divorce my ex filed bankrupt against the home without my knowledge. I became aware when I noticed that my payment had not been taken from my account. I have been solely been making the payments since the divorce was final. My question is, is he still entitled to his percentage due to the circumstances. He never did a reaffirmation of the loan and said he did so this is causing problems with the refi. At the time of the divorce we did a quit claim deed, not sure if that has any bearing on this at all. I'd appreciate any help. I am not against him receiving some money but not 40%. He also has only paid 2 months of child support and has done some other things. Any advice would be helpful. He is threatening to take me to court for his part of the house because the refi is taking so long. Help and thank you.
A: Yikes, what a mess. You should seek the advice of the attorney who represented you in the divorce. Whomever goes to court first will be asking the court to enforce this judgment and so it's important to know exactly what this judgment says and what rights or remedies are available as a matter of equity. If you don't want to use your original attorney, just be sure you bring a copy of this judgment to whichever attorney you do consult with.
It sounds like your ex could have only filed bankruptcy on the mortgage since he had already executed a quit claim deed to you. That, understandably, would cause problems with the refinance. Many judgments of divorce contain provisions creating a constructive trust in the event one party files bankruptcy. Again, that is something an attorney will need to advise you on after looking at the judgment.
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