Legal Question in Real Estate Law in California

Re: Joint tenancy w/Ex-husband

That's a very complex question, and requires more facts than you have posted here. First, the question is, does the new wife obtain rights to his 1/2 interest by virtue of community property laws. I am not licensed in MD, so I cannot tell you if it is a community property state, but California is, and as the property is located here, there may be an argument to be made that she does acquire some rights to it. That is really a Family Law question, not one of real estate. I would suggest that you repost this to the Family Law attorneys (for CA and MD) and see if there is any ability on her part to acquire a legal interest in the property. I can tell you from experience that an escrow and/or title company, as soon as he is re-married, will demand that she provide a quitclaim deed releasing any possible community property interest in his half - regardless of whether she actually acquired an interest or not - before they will insure a transaction in which either of you to do anything with title (i.e., refinance, transfer, sell, etc...). They will require this out of an abundance of caution, which title companies do not lack!

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Re: Joint tenancy w/Ex-husband

I generally agree with Mr. Gibbs' answer. You did not say whether this home is addressed at all, and if so, how, in your divorce property settlement. Therefore, I'm going to assume it either leaves you in status quo as joint tenants or is silent on the home.

Next, think about the joint tenancy aspect of your co-ownership. As you probably know, a main feature of joint tenancy is the right of survivorship, meaning that whichever of you survives (outlives) the other becomes sole owner automatically, notwithstanding a will, trust, etc. Also keep in mind that either joint tenant can sever the joint tenancy during his or her lifetime without the permission or prior knowledge of the other. (You might even want to do this). After a joint tenancy is severed, the co-owners become tenants in common unless the severance was caused by the sale of the former joint tenant's interest to a stranger, in which case the other co-tenant becomes a tenant in common with the third party.

I strongly doubt than ANY feature of California or Maryland law could cause your ex, his new wife, etc. to get any portion of YOUR half interest. What could happen is that HIS half interest might get shared, fractionalized, or fall into third-party hands. For example, it is legal to sell fractional (1/2, 1/4, 1%, etc.) interests in real property - but it doesn't happen often because the market isn't there and the results are often bad for all concerned. It is also possible for a spouse to get a small community-property interest through use of community funds, wages, etc. to pay on a mortgage. Finally, creditors of one joint tenant can get liens on the debtor joint tenant's interest, but usually not on the interest of a non-debtor co-owner.

One other thing that bears mentioning is that there is a statutory "exit strategy" for unhappy co-owners of property; a special kind of lawsuit called a partition action. In a partition, one co-owner sues, and the court is asked to order the sale of the property and the divvying up of the net proceeds, with various adjustments for one party's excess contributions to joint costs and other fairness-related considerations. Most partition suits are settled before full court proceedings by out-of-court settlement such as a voluntary sale, arbitration of the differences, one co-owner agreeing to buy out the other, and so on. In the old days, partition was done by physically subdividing the property rather than by sale and "partition" of the money, but urbanization and the regulation of subdivision of land have made that much less common than partition by sale. I note that partition is much more difficult and painful these days because there is so little equity in many properties that after the costs of partition (lawyers, real estate commissions, etc.) there is nothing to divide.