Obtaining mortgage preapproval to purchase a new home has been common practice for many years. A preapproval shows the home seller that the buyer has the financial strength to obtain mortgage financing to successfully complete the purchase transaction. The mortgage purchase preapproval is one of the first steps required for homebuyers and it should be one of the first steps for a divorcing spouse before agreeing to refinance the marital home.

Equity Buyout Preapproval should also be required by the spouse retaining the marital home if new mortgage financing is required. A refinance due to a divorce is required to remove the vacating spouse from the current mortgage or when the in-spouse needs to buy the equity ownership from the out-spouse in cash form.

• An Equity Buyout Preapproval allows the Certified Divorce Lending Professional (CDLP™) the ability to account for all income requirements, joint and individual debt, and assets needed to successfully provide mortgage...

Have you ever given thought to the value of perspective that each member of the professional divorce team brings to the table?

Every divorce is different. Each having it's own set of assets, emotions and narrative. The strength and knowledge of each professional involved can have a major impact on the outcome.

Perspective is a way of regarding situations, facts, etc., and judging their relative importance. Perspective is the capacity to view or think about a situation or problem in a wise and reasonable way.

Certified Divorce Lending Professionals (CDLP™) have a completely different perspective when looking at a divorce settlement agreement and participating in the actual settlement or mediation process. CDLP™s don't just look at the divorce settlement agreement and how it applies to the borrowing spouse's mortgage application. They have a much wider viewpoint and understanding of the entire process - a deeper and stronger perspective of the overall impact divorce...

Divorcing Homeowners who are selling the marital home should understand the importance of Basis. The Basis of the property is usually the acquisition cost and may be an important number when calculating any capital gains on the sale. The cost is the amount paid in cash, debt obligations, other property, or services. In addition to the cost of the property, certain other fees and expenses become part of your cost basis.

Real Estate Taxes. When the marital home was purchased, if the buyer paid real estate taxes the seller owed on real property acquired and was never reimbursed by the seller, taxes paid may be treated as part of the Basis. This amount should not be deducted as taxes paid. If the seller paid real estate taxes on behalf of the buyer and was reimbursed, the amount is usually deducted as an expense in the year of the purchase and should not be included in the basis of the property. If the seller was not reimbursed, the amount paid by the seller must be reduced from the...

Divorce and mortgage financing concerns are often a touchy subject in divorce situations. Particularly when one spouse is dependent upon income awarded from the divorce for mortgage qualifying purposes and also when contingent liabilities are present, such as a jointly held mortgage on the marital home.

Having a basic understanding of how lenders look at the different sources of income awarded in a divorce settlement as well as how joint and contingent liabilities are handled can help you better serve your divorcing clients who are concerned with the ability to obtain mortgage financing post-decree.

Avoiding hurdles with mortgage financing in a divorce situation is easier when you have a better understanding of the potential challenges your divorcing clients may face when obtaining mortgage financing.

Income vs. Qualifying Income

Often times in a divorce and mortgage situation there are various types of income to consider: Employment Income; Alimony/Maintenance Income; Unallocated...

There is more to address in a divorce settlement agreement than just the disbursement of net proceeds or equity ownership in a divorce situation.

A mortgage escrow account is designed to hold a homeowner's periodic payments for real estate taxes, mortgage insurance, and possibly homeowner's insurance. Mortgage escrow accounts normally build up large balances at times because of the timing of payments made from them. Any excess mortgage escrow account balances must be properly accounted for and then refunded after homeowners sell their homes.

Mortgage escrow accounts accumulate money over several months, usually from borrowers' prorated payments for their real estate taxes. In most parts of the country, counties require property tax payments on a semi-annual or annual basis, meaning escrow accounts tend to build up until taxes are paid.

If the home is sold before tax and insurance payments are made, there will most likely be funds remaining in the escrow account. Lenders are required...

During a marriage, the financial identity of both spouses may become comingled due to joint bank accounts, joint credit cards, co-mortgagees, and more. Protecting yourself or your clients from financial identity theft during and after the divorce is final should be a top priority.

According to the Federal Trade Commission, identity theft falls into six major categories:

1. Employment or tax-related fraud (34%). The use of one’s social security number and other personal information to gain employment or file an income tax return.
2. Credit Card Fraud (33%). The use of someone else’s credit card or
   opening a new credit line in someone else’s name.
3. Phone or Utility Fraud (13%). The use of someone else’s personal
   information to open a wireless phone or utility account.
4. Bank Fraud (12%). The use of someone else’s personal information to take over an existing financial account or opening a new account.
5. Loan or Lease Fraud (7%). The use of someone else’s...

Real Estate, whether it is the marital home or investment property, is one of the greatest assets owned by married couples. Typically in a divorce situation, the property is sold or retained by one party, and ownership is transferred solely into their name. 

When real estate property owned is sold, each party may be subject to capital gains tax. Depending on the value of the property at the time of the sale vs. the initial acquisition cost plus improvements, it may be wise to speak with a financial planner to weigh all options such as a 1031 exchange. (IRC Section 1031 – like-kind exchange)

Per IRS rules, a 1031 like-kind exchange provides an exception that allows you to postpone paying capital gains taxes if you reinvest the proceeds from the sale of an investment property (the “relinquished property”) into a similar property (the “replacement property”) as part of a qualifying like-kind exchange. The seller has 45 days to identify a...

One of the main concerns, when one party is retaining the marital home, is that the vacating or out spouse will not be able to qualify for future mortgage financing while their name remains tied to the current mortgage. This isn’t necessarily so, and we can help our divorcing clients with this issue with the correct verbiage contained in the final divorce settlement agreement.

When a borrower has an outstanding debt that was assigned to another party by court order (such as under a divorce decree or separation agreement) and the creditor does not release the borrower from liability, the borrower has a contingent liability. The lender may not be required to count this contingent liability as part of the borrower’s recurring monthly debt obligations.

Contingent liabilities are debts that a court orders one party the responsibility of paying yet does not relinquish the legal obligation of paying the commitment to the creditor. In a divorce situation, often times a mortgage...

The Housing Assistance Tax Act of 2008

When A Divorcing Client Moves Into An Existing Rental Property

There may be a widely overlooked tax consequence as many divorcing couples who own investment properties often move into a rental home as their new primary residence.

The Housing Assistance Tax Act of 2008 provides four important tax law changes that impact individuals and small businesses. These tax laws are part of the larger Housing and Economic Recovery Act of 2008 (HR 3221, Public Law 110-289) which provides a number of laws relating to housing and mortgages.

One of the highlighted tax law changes is related to prorated capital gains exclusion for real estate for periods of non-primary use.  This may be a concern for divorcing clients when one spouse retains a current investment property to be used as their new primary residence.

Under the Housing Assistance Tax Act of 2008, the IRS now wants its share of the capital gains tax during the period from January 1, 2009, up...

The deed, decree, and debt all intersect during divorce yet all three need to be dealt with separately in the settlement process.

The Deed.

When transferring ownership of the marital home from jointly held ownership or from sole ownership to the other spouse, using the correct transfer deed is important for protecting the new sole owner. A Quit Claim deed is the most commonly used transfer deed yet, provides the least protection to the receiving spouse. Without warranties, it offers the grantee little or no recourse against the grantor if a problem with the title arises in the future.

A Warranty Deed may be a much better choice as it provides the most protection to the new owner. This type of deed guarantees that the grantor holds clear title to a piece of real estate and has a right to sell it to the grantee. The guarantee is not limited to the time the grantor owned the property as with a special warranty deed; rather, it extends back to the property’s earliest title. As...