Top Mistakes with Real Estate in Divorce

1. Not listing the real estate in the Summons and Petition.

  • This might prevent you from getting a divorce, might prevent you from selling the property until you go back to court to amend and correct the decree, might result in your spouse getting more of a share in that property, and other problems.

2. Not using the correct "legal description" for the property, or using the street address instead of the legal description.

  • You may have to amend the Divorce Decree before you can refinance or sell the property.

3. Having verbal or written "side" agreements about the property that are not part of the divorce decree.

  • These are not enforceable and if your ex-spouse changes his/her mind, you are out of luck.

4. Assuming you are not responsible for the mortgage because your ex-spouse was awarded the house.

  • The court cannot order the lender to take your name off of the mortgage. Being on the mortgage is between you and the lender. Having your name on the mortgage for a house awarded to your ex-spouse may prevent you from qualifying for another mortgage. If your spouse fails to make payments on the mortgage, the lender may try to collect from you.

5. Deeding the property between spouses before the divorce is final.

  • Some people think that if their spouse is not listed on the deed for the property, the property does not need to be part of the divorce proceedings. There are two mistakes here. First, all real estate is part of the divorce proceedings, even if the deed is in only one name. Second, a deed between spouses during the marriage is not effective. Under the law, a spouse has a "marital interest" in all real estate owned by the other spouse. You cannot deed away that marital interest while still married to each other.

6. Not paying attention to the marital and non-marital parts of the value of a house.

  • You could be short-changing yourself by thousands of dollars.

7. Adding or changing language in the divorce papers without consulting an attorney.

  • You should change the court forms to meet your needs, but you also should get an attorney to help you. Real Estate law is very technical and exacting. You are highly likely to make serious mistakes if you try to address the real estate issues without competent legal advice. It is foolish to save a few dollars now and cause yourself trouble and expense later. Some mistakes can be corrected. For example, if you make an error in the legal description of the property, it is possible to go through a procedure to "amend" the Judgment and Decree to correct the legal description. Other mistakes cannot be corrected. For example, if you agree to sell the house and divide the net proceeds 50-50% with your spouse, you cannot ask to amend the decree later on the basis that the division was unfair because you paid $50,000 of the downpayment on the house with your non-marital money. Many attorneys are willing to review divorce papers for a reasonable fee. Just remember to show the papers to the attorney before you sign them or serve them on the other party.