During a divorce, it is very common for couples who own a home to decide not to sale the home and instead one party will keep the home and buy the other party out of their equity from the home. The problem that usually surfaces from this decision is that the spouse who is not keeping the home wants their name off the mortgage so they can go buy another home and/or to protect their credit in case the other party doesn't make timely payments. 

Can the court force my spouse to refinance the home?

The court cannot force someone to refinance a home because refinancing the home is dependent on whether the creditor will approve the refinance based on the party's income and credit. However, if you have language in your decree that requires that the other party by a specific deadline attempts to refinance the home into their sole name, and if the party fails to do so, then you can ask that the home be placed on the market to be sold by a date certain and the net proceeds from the sale of the home be split equally. 

If you fail to have language regarding the above in your decree, then you will likely hit roadblocks and have very little legal recourse in court.

What else can I do to protect my interest?

Typically in a divorce the party keeping the home will  ask for the other party to sign a Special Warranty Deed. It is important that if you sign a Special Warranty Deed, that you make sure that the deed is subject to encumbrance for your payout portion. Otherwise, if the other party never pays you your share of the equity pay out, then you have no legal recourse other than to file an enforcement. In addition, failing to have encumbrance language in your Special Warranty deeds means that you have already deed the entire property to the other party without the payout condition being satisfied. 

You should speak to an attorney about the other party signing a Deed of Trust to Secure Assumption of Risk, so that you can have the option to foreclosure on the property in the event that the other party fails to timely pay the note. 

This is why It is very important that you find a Houston divorce attorney to assist you with your divorce that involves property, especially real property, so it is handled carefully and with the representation of an attorney because your credit and future can be destroyed by a simple omission of a clause or provision in the decree. 

Attorney, Ashley Nicole Green is a divorce attorney in Houston, a divorce attorney in Fort Bend, a divorce attorney in Brazoria, a divorce attorney in Matagorda, and other surrounding counties that is here to help you protect your assets! Contact the Law Office of A. Green today to book a free case evaluation!