Divorce and Property: What You Need to Know

Hi, everybody, it’s Leigh Daniel. I just want to talk you today about some things that a lot of people don’t know, and they come back to me after the divorce is over, and there’s absolutely nothing I can do to help them.

Marital Home And Mortgage During Divorce

So, the first thing is about the marital home. If you have a marital home and it’s in both parties’ names on the deed, then you can quitclaim deed the title to the other person. That gets you off the deed, which means you don’t have any ownership of the property any longer. It does not get you off the mortgage.

Equal Rights To Marital Property

In Alabama, each spouse has the same rights to their shared home until a court issues an order granting one of them exclusive rights to the property. This legal decision can be made in a few different ways. Until such a decision is made, neither party is allowed to unilaterally assume control over the shared home.

So, one of the biggest problems that I see is that people go to lawyers who either don’t pay attention, or I don’t really know. But they come out with an agreement that doesn’t address the situation with the marital home, and the marital home causes so many problems. So, what you have got to do when you’re dealing with the marital home is you have got to both transfer ownership with the deed. And you need to get the deed signed by the other party immediately, and then you need to get it filed with the probate court.

People come back to us and say, “My deed was never signed.” Well, if we prepare a deed then you need to get the deed signed, and it needs to be recorded. Because, even if the deed is prepared, their other steps have to be followed up on in order to transfer ownership. Why that’s important is if you’re at the end, and you’re trying to sell your house and the other person hasn’t signed on the deed, you can’t sell the house. And you can’t even list the house if the other person doesn’t sign off on it if they’re still on the deed. So as you see, the deed and getting that deed taken care of is important.

Another piece that’s pretty important that I see people forget about is the mortgage. The mortgage has got to be refinanced. So, somehow these people come in then just say to me, “I don’t want to kick out my kids out of the house.” That’s great. But, are you prepared to continue to pay that house note in the event that your spouse, or then ex-spouse, stops paying on it? Because that’s what’s gonna happen if you don’t get that house refinanced.

The best thing to do if there cannot be a refinance is just to sell the house. I’m gonna talk about the problems with that in just a second. But, on the refinancing, if that person can’t get a loan in the next 30 days, which is ideal, 30 to 60 days, then if you want to be lenient or easy-going on that, then you may say, “I need you to refinance it within a year.”

But after the year if it’s not refinanced, then there needs to be a mechanism that you can get rid of that house at that time. Because you don’t want to wait year after year after year to get that house out of your name. It’s gonna show up on your credit report. And you may say, “But I’m not responsible for the house anymore.” Yes, you are. You are because the creditor, whoever it is, whoever your mortgage holder is, is not bound by the divorce. They don’t care. They do not care if your divorce says that you are not responsible for that house.

So, the only thing you could do is you could take that person back to court, if you had to pay for the mortgage when they stopped paying it. You could try to get reimbursement for that. But if they weren’t paying the mortgage company, the likelihood of them having the money to reimburse you is very slim. So, I don’t advise that. And, I understand that you don’t wanna kick your children out. But I’m trying to look at things from a long-term perspective.

Really, when you think about a divorce, you sometimes are caught up in what’s happening right now. But, you need to think about what’s gonna happen next year, or the year after that? And what’s gonna happen if you don’t have your refinance…I’m sorry, your mortgage refinanced is that the creditor could very well come after you. Or, at the very least, it can hurt your credit. Because, if that mortgage…let’s just say the mortgage is not even in the other person’s name, just the deed was at their name but the mortgage was in your name. Well, what is their motivation to pay that mortgage on time? Very little. Right?

And so, that’s gonna hurt your credit, and you might not even know about it. So, some things that I’ve put in decrees before is that after…if it’s late one month, then there’s some triggering thing. Something had happened. Maybe you can take back over the house, or two months, or three months, whatever. You just need to be aware of the fact that this is a really important piece.

Now, the sale of the marital home has caused so much trouble. If the house is supposed to be sold in a certain period of time, you really need to put a lot of provisions in there about how it’s gonna be sold.

One of the things that I’ve been dealing with recently is a case where the house is supposed to be sold. Ten years later, the house is not sold and the ex-wife living in the house finally listed it after we filed a lawsuit against her. But now, we don’t know what’s happening.

So, if the house needs to be sold, my advice to you would be to have it put in the papers that you are also dealing with the realtor. Okay? Don’t just dictate your responsibility and think that you’re gonna just put this off, the house is gonna be sold and you won’t have to deal with it again. No, don’t do that because your credit is still being affected. And you wanna make sure that that house gets sold. So you wanna have access to the realtor.

Some other things you may want is that if the house is not sold, that it’s reduced by a certain amount over a period of time. Or, another thing, possibly it could go to auction if it’s not sold over a certain period of time.

But if you don’t put these provisions in when you first filed the divorce decree, you can’t modify it later. And I know, it’s tricky. You want the divorce to be finished. You don’t wanna deal with these issues. You wanna give that person every opportunity. But, if you don’t have these provisions, you’re really not taking care of yourself, and your own needs after the divorce.

So, that’s something that I really want you to think about, and think about how you can craft an agreement that is gonna protect you.

How Does An Alabama Court Determine Who Gets the House?

When determining who gets the house in a divorce case, Alabama courts prioritize the decision made by the spouses themselves. The court will only intervene if the couple is unable to come to an agreement, either on their own or with the help of legal counsel. It is therefore advisable to try and reach a mutual agreement with your spouse before going to court, as this will give you both more control over the outcome. Ultimately, the final decision rests with the judge’s discretion.

What About the Vehicle?

The other thing that is particularly tricky is the vehicle, for kind of the same reasons. The creditor who owns the note on the vehicle doesn’t care that you’re not responsible for the vehicle anymore. All they care about is getting paid.

So, if you want to have a whole harmless provision that the other party is gonna pay the car note off, then that’s fine. Just be aware that you’re also on the hook for that. You might want to ensure that they let you know if the car note is behind. And again, the only remedy that you’ll have is to go and ask the court to have you reimbursed, which can be a difficult proposition. If the person wasn’t paying the car note originally, what makes you think they’re gonna pay you?

So, these are all some considerations around debt that are pretty important.

Credit Card Debt During Divorce

Another thing that you need to think about when you are going through your divorce regarding debt is the credit card debt.

If you’re gonna have…if you have a joint account with somebody and you’re going to leave them responsible for paying off the joint debt, you can’t be sure that they’re going to pay off the debt. And if they don’t, once again, your name is still on that debt.

Now, I’m not saying there’s that many ways to fix that. But one thing that I’ll suggest is that if there are assets, then pay the credit card debt all first, because you don’t want that debt to be out there hanging around.

Somebody came in to see me last week and he said, “We’re gonna keep the credit cards.” And I said, “Why would you do that? You’re getting divorced.” You don’t need to keep the credit cards. If your spouse wants to have a credit card, it needs to be in her own name. And if you wanna give her money for alimony, she can pay on the debt, and you’re not then responsible for the debt.

Get Help From A Huntsville Divorce Lawyer Now

Some of the things are difficult to deal with because you’ve gotten yourself into a position where you’re on somebody’s…you’re on a mortgage with somebody, you’re on a car note, a boat, all kinds of things. You could have signed a mortgage, or deed, or land, or whatever. But, these are just considerations that you need to be aware of because I definitely see them being some of the main things that people come back to me and say, “How do I fix this?”

If you have any more divorce questions, then just make a call with us. We’ll be happy to try to help you navigate this complicated scenario of your divorce and your debts.

Thank you and have a great day.


A respected Huntsville family law attorney with more than 20 years’ experience, Leigh Daniel is known for her positive attitude and her skills in the courtroom. She prides herself in the care and compassion that she and her team put into every case. Her goal is to instill a sense of confidence in her clients so they know success is on the horizon. As an author, inspirational speaker, coach, and founder of Project Positive Change, Leigh stays focused on the positive impact she can make on every client’s case.