Q: Did the new refinance change who gets the equity?
I got divorced a few years ago and in the decree I was awarded the house and equity. After the divorce, my ex refinanced the house with me so that my payment would be lower. He now says he never agreed to give me the equity and that with the new loan agreement, he should get his half of the equity in the home. Is this correct or do I still get all the equity?
A:
Your question strongly suggests you did not follow the advice of your divorce attorney. If your divorce decree awarded you the residence, there should have been an accompanying special warranty deed from your ex-husband to you deeding the home to you and an accompanying deed of trust to secure assumption giving your ex-husband a security interest in the event that you failed to pay the mortgage in full.
When you refinanced your home, it wasn't necessary at all for your ex-husband to participate in the transaction since he no longer owned the home. If he participated in the refinance, a key question is whether you signed any new deed conveying your separate property residence to you and your ex-husband as jointly owned property. You need an attorney to very carefully review the ancillary documents from your divorce proceeding along with the documents from your subsequent refinance to confirm that you did not assert to your mortgage lender that you and your ex-husband were married at the time of the refinance and to ensure that you did not sign something giving part of your house back to your ex-husband.
If, for some unfathomable reason, your ex-husband agreed to be a co-signer on a new refinanced mortgage without an ownership interest in the home, there should be clear documentation of that fact in your loan closing documents. Many common loans, especially those guaranteed by the FHA, VA, etc., require the borrower to be an owner and to occupy the home as their residence.
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.
