Legal Question in Real Estate Law in California

Re: RE Loan Pending Divorce

Your post doesn't give enough information to give a complete answer, but based on what is there, I can peck away at the fringes:

1. The divorce settlement in which your husband buys you out can be designed to contain timing provisions so that the buy-out date, or your loss of the right of possession, is convenient for you.

2. You should talk to other lenders. The policy of one is not the policy of all.

3. Divorce proceedings do not necessarily always end the way you seem to think. There do tend to be two stages or dates; one on which marital status ends, and the other on which the property settlement becomes adjudicated. This can happen on the same day, or years apart.

4. Further, a final property settlement becoming the final order of the court does not mean that all the things the court orders happen at the instant of the order. The court can make a final order, for example, calling for sale of the family home after junior graduates from high school.

So, with proper advice, planning and legal counsel, you should be able to fashion a property settlement that works for your reasonable convenience and comfort and avoids a double move, and get the judge to approve such a settlement.

That six-months requirement you've mentioned may be based on a misunderstanding of Family Code section 2339 which says, in effect, that a divorce decree cannot become final until six months after the divorce papers are served. This is quite different from what you say, however.

Soooooo, I think if you re-check your facts about timing and lender policy you might come up with some more pleasant news.

Re: RE Loan Pending Divorce

That's really not a legal question. It is a question of loan underwriting policies, and should be addressed to the lenders. So that you understand fully why you are being denied today - so long as your name is on the loan on the home your husband is going to retain, you are legally liable to the lender for the loan payments - EVEN with a Court order giving him the house. If he does not actually refinance the loan into his name only, then you will probably not be able to get a loan even after the divorce. Unless your attorney brings the lender into the Family Law Court, and has a judge order that you be removed from the loan, the Court judgment giving your husband the home and the responsibility for paying the loan DOES NOT affect the lender's right to pursue you for payment, and therefore, in underwriting a new loan, your lender has to take into consideration the loan payments required on the old home in addition to the new one. This, however, is a question of specific facts, and you need to discuss it with a lender who knows your financial circumstances.

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