Protecting Your Property Rights and Credit In Divorce

Nothing is easy about divorce, and most people count on their lawyer to guide them through potential pitfalls. Paying an attorney might make you think you don't need to understand these matters yourself. But there are potential problems even a lawyer may overlook or take for granted, especially one who makes the assumption that both parties will behave rationally and obey the rulings of the court.

Having property awarded to you in a divorce decree may not be enough to grant you actual possession if your lawyer hasn't taken the proper steps. I learned too late after my divorce that I couldn't actually sell the house I'd been awarded without my ex-husband signing an agreement to sell or a quitclaim deed to surrender his share of the property.

The divorce had been granted in Arizona, and the property was located in South Carolina, which further complicated matters. When I looked to lawyers in both states to help me resolve the problem, I found that none were willing to take my case. With attorneys telling me this was too complicated for them to pursue, I had little hope of tackling it myself.

I did find I could file a contempt decree that could then be used to order the clerk of court to deed me the property. (Sadly, it was from the superior court Web site, not my attorney, that I learned this.) But the filing required tedious paperwork, including detailed financial information I preferred not to make available to my ex-husband. Paying court and process service fees would have been a hardship in my precarious financial position. And I was infuriated by the idea that the court needed to know how much I spent a month on groceries, just to grant me property I'd already been awarded. In the end, I found my best option was signing over the house to him, hoping he or his family would keep paying the mortgage.

I did so at considerable risk to my credit and only because the alternative was allowing the bank to foreclose. If you are signing over property to a former spouse, it's important to know that this doesn't discharge your liability for any mortgages or liens against the property. The other party should be required to refinance the property in his or her name. If your lawyer doesn't address these issues during the divorce proceedings, it can be nearly impossible to address later.

Use caution, too, in the division of marital debts. Even if your spouse agrees to take on a debt, the creditor can still hold you liable if he or she doesn't pay. This is especially crucial if the decree assigns your spouse debts that are solely in your name. Regardless of the decree in those cases, creditors will not pursue your spouse for payment. Your only option if those bills aren't paid will again be filing for a decree of contempt.

Considering their fees, it's unfortunate clients can't trust attorneys to educate them about the implications of property division. But it must be easy to become accustomed to the routine of divorce cases, forgetting that for their clients, at least most of them, it's hardly routine. If you're unfortunate enough to need a divorce attorney, ask questions about the division of property and debt you're requesting, most importantly, what happens if someone doesn't obey the decree? If you're prepared for the worst-case scenario, you'll be in a far better position to react. I certainly wish I'd been.