Legal Question in Real Estate Law in Virginia
deed of gift
my husband and i are seperated and divorce final in 2 weeks. in our agreement I can stay in our home and he has to pay the mortgage pymts as long as i want to live there and is in exchange for 1/2 his retirement and child support. i can sell the home and keep all the proceeds when it comes time to sell per our agreement. the home has structual damage that needs to be repaired and i cant afford it right now but as time goes on may make the property hard to sell. i took out a 15,000.00 loan to redo the downstairs and it looks great but upstairs needs work. if i got a deed of gift so i can talk to the mortgage compant cause its only in his name, could that come back to haunt me if he decides not to continue to pay the mortgage, or if he does deed it to me what if he is in default with his mortgage company, then would they repo the house. and if the repairs were made could i buty it myself... not sure what to do??the mortgage is 1350 because he refied 2 yrs ago and took out some money about 60,000 so thats why i would get the proceeds from the sale of the house and the ablility to sell cause 1/2 of what he got when he refied should have been mine???
1 Answer from Attorneys
Re: deed of gift
Yes, the lender would foreclose in the event that your soon to be former husband ceased making the payments on the mortgage.
It's doubtful that the lender would approve your being added to the title by way of a deed of gift. If in lieu of foreclosure, something akin to a so-called "short sale" of the property were to occur, it's possible that you might be able to take over the property if the lender determined that you were financially capable of doing so.
You should also bear in mind that irrespective of any prior agreements between you and your husband regarding the property or its sale which may have been incorporated into your divorce, lenders, as a general rule, are not bound by such agreements, and, in any foreclosure action your husband's mortgagor would undoubtedly seek to secure all that it might be due under the mortgage from the proceeds of any sale of the property resulting from foreclosure before you or any of your husband's other possible creditors might receive anything from such sale proceeds.
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