What can I do to force my ex husband into helping refinance until we can sell the marital home?
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Answer:
Courts have held that a party may rescind a contract for fraud, incapacity, duress, undue influence, material breach in performance of a promise, or mistake, among other grounds. However, the general rule is that parties may not modify a court order by private agreement and the court must issue a modification of the order to be legally enforceable. A court may grant a motion for a modification of a divorce decree when the parties consent to the modification or when a significant change of circumstances justifies the modification.
One of the most common methods of seller financing is a contract for deed, or land contract, which is often used as an alternative means of financing the purchase price of property. The buyer does not receive an actual deed until payments are made under the terms of the contract for deed agreement. Until the buyer receives a deed, ownership isn't transferred and the property is subject to being foreclosed on if the mortgagee/owner defaults on the mortgage. The responsibility for payment for the property is a separate issue from the ownership of the property.
If there is a mortgage on the property, the contract may violate a due-on-sale clause in the mortgage which the lender may or may not seek to enforce. Most lenders require that the mortgage or deed of trust contain a due on sale clause. This is an acceleration clause in a loan, calling for payment of the entire principal balance in full, triggered by the transfer or sale of a property. Such a clause permits a secured mortgage lender (federal, state or private) to call the entire unpaid loan balance due and payable immediately if the property securing the loan is sold, transferred, traded, gifted or otherwise disposed of without the lender’s prior written consent.
If the home is foreclosed on, the buyer may lose investment payments that are made and then the buyer loses the home.