I was divorced in 2007. The house is still owned together- in mediation we agreed I would live in & pay the mortgage on it until Aug 2011. Then it would go on the market. Outside of the agreement he knew I hoped to buy him out.
During 2011 I told him that I wouldn't be buying him out & it would have to go on the market . Our daughter's wedding was in Sept. so the house was put on hold until after. I then let him know that I wanted to move out. He decided to move in with the understanding that the house would go on the market at that time.
He moved in in Oct. I did not push until after the holidays. He informed me that he wanted to buy it. Now he ignores messages & has been unable to show me that he is actively pursuing a mortg.
As the agreement states that it should go on the market as of August 2011 do I have legal standing to take him to court & force it on the market & if so is this something I can file on my own or do I need an attorney for it? It is likely that the threat of court may force him to take action but I cannot be sure. What is likely to be my best course of action?
Compelling sale of jointly owned house per divorce agreement.
The short answer is since your divorce agreement says that the house is to be put on the market for sale in August of 2011, then you can bring your ex-spouse into court on a contempt motion for failing to comply with the agreement. This is something you can do without an attorney, and there are articles on this site that can assist you. Keep in mind that the Court’s order to sell the house is an order to you as well as to your ex-spouse. You also have to comply with the Court’s order.
But before there is a contempt of court the party to be held in contempt has to have the ability to perform the Court’s order and still refuse to perform the Court’s order. Your situation is not the common failure to pay ordered child support or alimony, so the preliminary steps to bringing a motion for contempt are more complicated. You have to show that you are attempting to comply with the Court’s order, and that your ex-spouse is co-operating.
The first thing you need to know is how much the house will sell for in today’s market. You need this information whether he is going to buy out your interest or whether you are going to put the house on the market. You can get this information from real estate agents, but I think in your case the best way is to hire an appraiser. Many real estate agents will do a “free” Comparative Market Analysis (“CMA”) which is the agent’s estimate of what the house will sell for based upon a comparison between your house and similar houses that have recently sold. The “free” CMA that a real estate agent will do is inherently suspect, because the agent does the CMA for the purpose and with the hope that you will list the house for sale with the agent. Lawyers would call this a “conflict of interest.” There are real estate agents who will do an accurate CMA, but how can you know that the one you get is accurate? To avoid this conflict of interest, and to have a more reliable estimate of market value for the Probate and Family Court, go ahead and spend a couple of hundred dollars or so for an unbiased appraisal from an actual appraiser.
1. Locate an appraiser you want to use, and then write, using certified mail, your spouse, and say that you should both split this cost so he can pursue buying out your interest in the house. If you get an affirmative response, then you are moving toward him buying out your interest. If you get no response, or a negative response, then you have something to show the Court that you are attempting to comply with the divorce agreement.
2. If you are able to get an appraisal, then you can send a demand, by certified mail, that your spouse either buy out your interest by a reasonable deadline, such as forty-five to sixty days, or that the house be put on the market by that date. You also want to be speaking with real estate agents to find someone you want to use. There are many options of listing commissions and arrangement, and you should expect to spend a fair amount of time looking for someone. Of course you and your ex-spouse have to agree on an agent to use, but you can at least do your part to show the Court you are attempting to comply with the Court’s order. Based on the response or lack of response from your ex-spouse, then you may have to bring a contempt motion before the Probate and Family Court. There are other issues you need to deal with. Is the mortgage current ? Is the property tax current ? Is the homeowner’s insurance policy current ? You need to make sure your ex-spouse is doing this, since you are not. If the mortgage goes into default or even foreclosure, then this complicates everything.