Full question:
Our divorce decree indicates that we put our house up for sale. We did, but because of today's market, we've only had two lookers in the past 12 months. Our decree indicates that I can live in the house until it is sold. I own 60% of the house and my ex-husband owns 40%; we make equal payments. Our 5 yr. ARM is due in June. With my ex's knowledge in October I sought out lenders to refinance the house and was told to take the house off the market for 6-8 months. I informed my ex of this; he did not respond. Now, he is indicating that he wants me to buy the house as he is not interested in refinancing and then putting the house on the market. What would you suggest me to do based on today's collapsed market? Also, at the time of our divorce, he was to pay me $20,000 to balance out our settlement. He indicated that he had no money at that time and would give me the money upon sell of the house. I took pity on him and added a notarized stipulation to the decree. I found out later that he had lied to me;therefore, coerced me into signing the document allowing him to delay the payment of the $20,000 while he kept his 401K and his inheritance from his father (the 60% and $20,000 was my payback for his use of my inheritance for his personal gain).
- Category: Divorce
- Subcategory: Property Settlements
- Date:
- State: Idaho
Answer:
Courts have held that a party may rescind a contract for fraud, incapacity, duress, undue influence, material breach in performance of a promise, or mistake, among other grounds. However, the general rule is that parties may not modify a court order by private agreement and the court must issue a modification of the order to be legally enforceable. A court may grant a motion for a modification of a divorce decree when the parties consent to the modification or when a significant change of circumstances justifies the modification.
One of the most common methods of seller financing is a contract for deed, or land contract, which is often used as an alternative means of financing the purchase price of property. The buyer does not receive an actual deed until payments are made under the terms of the contract for deed agreement. Until the buyer receives a deed, ownership isn't transferred and the property is subject to being foreclosed on if the mortgagee/owner defaults on the mortgage. The responsibility for payment for the property is a separate issue from the ownership of the property.
If there is a mortgage on the property, the contract may violate a due-on-sale clause in the mortgage which the lender may or may not seek to enforce. Most lenders require that the mortgage or deed of trust contain a due on sale clause. This is an acceleration clause in a loan, calling for payment of the entire principal balance in full, triggered by the transfer or sale of a property. Such a clause permits a secured mortgage lender (federal, state or private) to call the entire unpaid loan balance due and payable immediately if the property securing the loan is sold, transferred, traded, gifted or otherwise disposed of without the lender’s prior written consent.
If the home is foreclosed on, the buyer may lose investment payments that are made and then the buyer loses the home.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
