Oakland, MD asked in Divorce for Maryland

Q: I just got divorced and we have a mortgage together with a living trust for our kids I live there and pay the payment

She wants her name off the mortgage what is the law about that because I don’t know if I can afford to tefinance

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1 Lawyer Answer
Mark Oakley
Mark Oakley
  • Rockville, MD
  • Licensed in Maryland

A: Is the deed to the house in the name of the living trust, or do you jointly own the house in your individual names? Upon divorce, real property owned by spouses as "tenants by the entireties" automatically converts to "tenants in common" ownership. Therefore, you would each own 50% of the property. If one co-owner wants to force the sale of the home, they can do it by filing a court action seeking its "sale in lieu of partition." The only scenario where your co-owner ex-wife could not do that is if you had been awarded primary residential custody of your minor children and granted "use and possession" of the marital home for a period of time (up to three years in a divorce action). The time to request a use and possession award is before, not after, the judgment of absolute divorce. If the house is titled in the name of the living trust, then only the trustee(s), acting in accordance with the decision-making authority granted to them in the trust, can sell the home or change the situation regarding refinancing. If the trust requires unanimous consent of the trustees, or you are the sole trustee, or whatever it is the trust document provides, then that is what will decide what can and cannot be done. Therefore, clarify how the property is legally titled, and consult a lawyer on options. Ultimately, the ball is in your ex-wifes's court to decide how she is going to proceed to get out of the situation. Of course, you two can sign an agreement whereby she holds off on any court action and you get time, up to some limit (1 year, 2 years, whatever) to either refinance the mortgage out of her name, or faling that, the property gets listed and sold. That buys you time and her an end date by when she is free of the mortgage debt, while not putting the kids out of their home. You need a lawyer to draft that agreement, and you need to provide for how the net proceeds of sale are distributed if the property is sold, and whether she retains any interest in the property if it is refinanced, or whether she is due half of any equity value in the property upon refinance or sale.

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