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Selling a Shared House

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By Lew Sichelman

RISMEDIA, Oct. 30, 2007-(MarketWatch)-Question: We have a family member who is divorced but she and her ex-husband still share ownership of the home they bought together. She resides in the home and wants to sell it due to a financial setback, but her ex-husband refuses to participate. He is fighting some child custody issues and is using the house situation as a form of retaliation. The house will face foreclosure soon if nothing is done. The ex-husband is willing for that to happen even though there is some equity in the home. Is there anything she can do without his involvement to avoid or minimize the impact of foreclosure?

Answer: Since you failed to specify the state in which the property is located, I can provide nothing more than a general answer because the law in that jurisdiction will go a long way toward determining how this woman might proceed. Generally, though, if the property was purchased by the husband and wife as tenants by the entirety, which was likely the case, upon their divorce their form of ownership would convert to a tenants-in-common.

Assuming that there is no matrimonial agreement that sets forth the manner in which the property may be sold, the wife should be able to sell her one-half interest in the home without any interference from her husband. Of course, this option is not very practical because not many people are interested in purchasing fractional interests in permanent residences, especially in such an acrimonious situation.

But Steven Sladkus and Jeffrey Reich, who are partners in the New York office of Wolf Haldenstein Adler Freeman & Herz, suggest that the wife might want to petition the court, in an action for partition, to order the house sold, not only because the possibility of foreclosure is looming, but also because the husband is permitting a marital asset to go to waste.

However, the two real estate attorneys also advise that if she follows this course of action, there is a very real possibility that absent any agreement between the parties that governs the disposition of this or other family assets, the judge will not allow her to force her husband to sell his interest.

Another, perhaps more practical option, according to Sladkus and Reich, might be for the wife to contact the mortgage lender and try to enter into a forbearance agreement until her financial and legal problems are resolved. That way, she might be able to out-wait her ex-husband without having to succumb to his custody demands.

If these options don’t fly, I suggest she listen to the advice of her divorce attorney. If her lawyer can’t come up with a solution, maybe she should find different counsel.

Question: I am planning to sell my house sometime next year and pay off some credit card debt. Will that look good right away or does it work the same as paying it down slowly? Will it still take years for my credit to improve? Lorraine.

Answer: Selling your house to improve your credit won’t change your credit score if you have been late with your payments. Even after you discharge the debt, the late pays remain on your record. Ditto for credit card debt.

Your credit record is what it is, and you can’t change it. But the older the late pay, the less impact it will have on your credit score. As long as you have kept your nose clean since you were late on one or more accounts, the late pay counts less and less as time goes by. Within a year or two, your credit score should start to improve markedly.

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