Equitable v. Actual Division of Real Property in Divorce Cases

Equitable v. Actual Division of Real Property in Divorce Cases


Program Summary:

When the housing bubble burst in 2008, the mortgage meltdown and housing slump

drastically reduced the equity or profitability of most divorce real estate. But how houses

are handled in divorce – equitable division - remained the same.

This program introduces a simple real property information sheet for equitable division to

enhance judicial fact-finding regarding house valuation and support for house

disposition/division decision-making and MDA approval - without added judicial

responsibility - to increase access to justice, avoid inequitable results and reduce post-

judgment litigation.

By: Kelly Lise Murray, J.D. Founding Director of the Vanderbilt Collaboration Project (VCP)

Director of Continuing Professional Education Vanderbilt University Law School

[email protected] 615-343-5806

mailto:[email protected]


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™ and ©2007-2012 from VANDERBILT LAW SCHOOL www.law.vanderbilt.edu

Thesis: for equitable division of real property (re: valuation, disposition, & division) more real property due diligence & evidence (financial data & real estate information) are:

1. Needed 2. Already mandated 3. Accessible without legal advice – by litigants whether self-represented or with counsel 4. Facilitated by Real Estate Information Sheet (PDF form) – enhances access to justice

without adding judicial responsibility and without impairing judicial impartiality.

1. Needed

o Critiquing “custom” - appraisal minus mortgage does not equal equity Inaccurate application of FMV-debt equation

FMV: Appraisal expressly excludes “title” and “condition” – 2 factors impacting/potentially reducing FMV

Debt: Mortgage does not reflect all secured debt (2nd mortgage, HELOC, other liens – tax, HOA, consumer debt)

o Valuation, Disposition & Division decision-making is impacted by house

information and/or financial data re: potentially reduced value, health/safety, refinance-ability, resale-ability, insurability, affordability, and desirability.

2. Already Mandated

o Trial Court – Discretion re: Equitable Division Fact finding, valuing & dividing real property Approving property settlement (including real property) & merging or

incorporating MDA into divorce decree

o Lawyers, ADR & Financial Professionals Ensuring voluntary, informed decision-making by litigants

TRPC 1.4 Communication (“informed decisions”);

TRPC 1.1 Competence (“legal knowledge, skill, thoroughness” [required for divorce real estate valuation/disposition decision-making])

TN S. Ct. Rule 31 Appendix A (Self Determination/Voluntariness) o Litigants

Due diligence – required to identify and value marital and non-marital assets

Bound by evidence presented, or not presented - property division is permanent.

Voluntary and informed settlement agreement (decision-making)


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3. Accessible without Legal Advice

o Equally available to litigants whether self-represented or with counsel real estate due diligence is Informative and mostly free

see, e.g., real estate buyers/sellers Litigants consult with banking, mortgage, insurance & real estate-related

professionals

4. Proposed Solution – A. Status Request or B. Real Property Information Sheet (PDF form)

o Benefits: Makes judicial fact finding and property settlement approval more

accurate and easier

Current information gap makes fact finding less accurate, more difficult

No added judicial responsibility No impairment of judicial impartiality Increases access to justice for litigants with counsel and self-represented

Enhancing informed decision-making without adding litigant costs

May reduce post-judgment litigation re: real property May prevent malpractice & ethics violations/claims

Flexible implementation

Scheduling or Case Management Order – Status Request

Information Sheet

Proposed Findings of Fact/Stipulated Findings of Fact

A. Status Request re: Real Property : before ordering property mediation or appointing an appraiser or real estate agent, or included in that order, consider trial court request for the status (acceptable litigant response: “unknown” or “known” + data/document(s)) re: the following: 1. Mortgage Evidence [FREE]

a. Consultation b. Refinance Pre-Qualification or Pre-Approval

2. Lien Evidence [FREE] a. lien search at County Register of Deeds

3. Title Evidence 4. Title Insurance Evidence [FREE]

a. Consultation 5. House Insurance Evidence [FREE]

a. C.L.U.E. or A-Plus Report b. Consultation

6. House Condition Evidence 7. Distressed Real Estate Evidence [FREE]


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B. Real Property Information Sheet – PDF Form

i. Prepared by Litigants

1. Facilitates litigant exposure to real property due diligence

categories without mandating litigant answers or added

costs by including I don’t know as a valid response;

2. Issued during Scheduling Conference or Case

Management Order or

3. Required by local rule

4. PDF/Form download-able from county website, where

available

ii. Prepared by Superior Court Judges – supporting Findings of Fact

re: Real Property

1. “Checklist” confirming real property evidence submitted by

each litigant; and

2. “Checklist” confirming real property evidence omitted by

either or both litigants

C. Proposed Findings of Fact re: Real Property

D. Stipulated Findings of Fact re: Real Property


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Section # Topic Page

#

1 House Valuation Methods & Current

Custom

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Debunking Opinions of Value & Price 8

Lawyer/Mediator/Financial Professionals

Misperceptions v. Ethics Obligations 11

Housing Condition – Impacting Children’s

Health & Education as well as House Value 13

Lien Search v. Title Search; Liens 14

2 House Disposition 19

House Insurance & C.L.U.E. Reports 16

Distressed Real Property, Deficiency

Judgment & Foreclosure 22

3 House Division 24

Severing Financial Ties; Failed Mortgage

Refinance; Limits of “Hold Harmless”

Provisions; Unauthorized modification of

Divorce Decree re: Contempt & Purge

Conditions

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5 Dangers of Title Transfer & Deeds 27

4 Proposed Pilot Program – Real Property

Information Sheet (PDF) & Findings of

Fact

30

KLM Bio 35


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Section 1 - House Valuation Methods & Current Custom Evidence re: House Value and H/W Due Diligence

Judicial Fact Finding: House valuation within range of evidence,

considering all relevant, competent evidence;

H/W Due Diligence: H/W burden to produce competent valuation

evidence and bound by evidence presented.

It is settled law in Tennessee that “[t]he value of a marital asset is

determined by considering all relevant evidence regarding value.”

Wallace v. Wallace, 733 S.W.2d 102, 107 (Tenn.Ct.App.1987)

(citations omitted). “The burden is on the parties to produce

competent evidence of value, and the parties are bound by the

evidence they present.” Id. (citations omitted). “Thus the trial

court, in its discretion, is free to place a value on a marital asset

that is within the range of the evidence submitted.” [Id.] (citations

omitted).

Hirschman v. Hirschman, 2003 WL 22952714 (Tenn. Ct. App. 2003); see also Owens v. Owens, 241 S.W.3d 478, 488 (Tenn. Ct. App. 2007) (holding when valuation evidence conflicts, “the court may place a value on the property that is within the range of the values represented by all the relevant valuation evidence”).

Categories - House Valuation Evidence 1. Value Opinions

Appraisal [Statement of Limiting Conditions excluding Title (¶1) and Condition (¶5)]

Tax Assessment

Owner/Lay Testimony

Tenn. R. Evid. 701(b) Value. A witness may testify to the value of the witness's own property or services; Stinson v. Stinson, 161 S.W.3d 438, 446 (Tenn. Ct. App. 2004) (“It is well settled under the law in this state that an owner of property is competent to testify as to the value of such property”) (citation omitted).

Financial Disclosure Statement H/W estimates or “guesstimates” are binding when agreed by the parties. Pedine v. Pedine, 2009 WL 585943 (Tenn. Ct. App. 2009)


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(enforcing H/W agreement re: house value at $470,000 and reversing subsequent trial court house valuation at $525,000).

2. Price Opinions/Value Opinions

Broker Price Opinion (BPO) and Comparative Market Analysis (CMA)

Broker Price Opinion (BPO) and Comparative Market Analysis (CMA) – address house list price

or purchase price only, not house value. 12-15-09 TAR DIGEST (“In order to provide an opinion

as to list price or purchase price, you must be a licensed real estate broker or salesperson.”).

3. Online Price Estimates

www.zillow.com www.trulia.com www.realestateabc.com www.propertyshark.com www.homegain.com www.homegain.com

Online price estimates are generally inadmissible [but possible “source” of H/W valuation estimate]

Common v. Common, 42 So. 3d 59, 62-63 (Miss. Ct. App. 2010) (rejecting online house “appraisal” [e.g. “Zestimate”] as hearsay).

Raymond v. Raymond, 2011 WL 2611809 n.2 (Conn. Super. Ct. 2011) (valuing house at $250,000 and noting “[t]he court does not credit the Zillow estimate submitted by [H] from the internet”). Uzyel v. Kadisha, 2010 WL 3406025 n.20 (Cal. Ct. App. 2010) (unpublished/noncitable), reh'g denied (Sept. 22, 2010) (noting trial court suggested Plaintiffs “could have obtained their own” real property valuation):

At one point, the trial court suggested [Plaintiffs] could have gone to the website,

zillow.com, to contradict [Defendants’] estimated values. Zillow.com provides what it

calls a “Zestimate,” which is a home's “estimated market value, computed using a

proprietary formula. It is not an appraisal. It is a starting point in determining a home's

value.” (http:// www.zillow.com/wikipages/What-is-a-Zestimate/) Moreover, a homeowner

is permitted to change Zillow's facts about the property, thus changing the Zestimate.

We, therefore, see no basis for recognizing Zillow's “Zestimates” as a sufficient basis on

which to obtain a legitimate valuation of the properties at issue.

http://www.zillow.com/

http://www.trulia.com/

http://www.realestateabc.com/

http://www.propertyshark.com/

http://www.homegain.com/

http://www.homegain.com/


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Cf. Berry v. Deutsche Bank Nat. Trust Co., 57 So. 3d 142, 145-46 (Ala. Ct. App. 2010) (reversing summary judgment for trustee, where, inter alia, trustee waived objection to tax notice admissibility) (“There are many factors that the Court must consider when determining a property's fair market value. In doing so, the Court must require more evidence than a copy of the Jefferson County Tax Assessor's market value or an online appraisal from Zillow.com”):

The [trial c]ourt concludes that such evidence is insufficient. First, evidence was not provided by [Plaintiffs] explaining or verifying the method used by the tax assessor's office or Zillow.com to determine the suggested values. Does it include factors such as the size of the home or the number of rooms, or is it based exclusively on sales of properties immediately surrounding the property at issue? “But even more troubling is the lack of information regarding the condition of the property at the time of the sale. [Plaintiffs] failed to provide the [trial c]ourt with either pictures or an affidavit of the condition of the property at that time. What if it was in a state of disrepair? [Plaintiffs] could not then reasonably contend that its fair market value would be the same as if it were in top condition.

Debunking Opinions of Value and Price

Appraisals

> What appraisals are:

Appraisals are primarily a lending tool predicting loan performance. See HUD “For Your

Protection Get a Home Inspection.” (“Appraisals are for lenders; home inspections are for

buyers”).

> What [divorce] appraisals are NOT:

Divorce appraisals exclude (“disclaim”) title and condition (both critical to house

valuation whether the house is kept or sold per dissolution)

Freddie Mac Form 1004B – Statement of Limiting Conditions and Appraiser’s

Certification:

Statement of Limiting Conditions excluding:

¶1 - Title

¶6 – Condition [or ¶5 for recent forms]


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Disclaimer of Liability - Title

• ¶ 1 “The appraiser will

not be responsible for…

the title.”

• “The appraiser assumes

that the title is good and

marketable, and

therefore, will not render

any opinions about the

title…”

Disclaimer of Liability - Condition

¶ 6 The appraiser has noted…

• “any adverse conditions”

“…observed during the

inspection of the subject

property” …

• “…the appraiser has no

knowledge of any hidden

or unapparent conditions

of the property… that

would make the property

more or less valuable

• and has assumed there are

no such conditions

• and makes no guarantees

or warrantees, expressed

or implied, regarding the

condition of the

property.”


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What we don't do: FHA does not

[reframed for divorcing spouse]:

• Guarantee the value or

condition of your potential

new home.

• If you find problems with

your new [former marital]

home after closing [divorce],

we [your former spouse] can

not give or lend you money

for repairs, and we [your

former spouse] can not buy

the home back from you.

• That's why it's so important

for you, the buyer, to get an

independent home

inspection … and give you the

information you need to

make a wise decision.

Current version-excluding signature line.


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Lawyer/Mediator Misperceptions

[some/many] clients/parties just want to complete the divorce (“get it over with”)

Cost

Judges require appraisals …

2011 December 5 email from TN lawyer/Rule 31 listed family mediator:

…I enjoyed the seminar. I had never heard of C.L.U.E. before, and the discussion of the title

search was also helpful. I wonder how much of what you suggest will actually take place, since

there is added cost to several of the suggestions, and a lot of folks just want to get in and get out

in mediation.

I mediate at least 2 divorce cases a week, and I have yet to see a case in which the parties did

the sort of background you recommend.

Usually, they get an appraisal of the property and use that appraisal, on the theory that the court

would use that appraisal, particularly if the appraiser is an individual whom the court itself uses.

But I don't see title searches or consultations with mortgage professionals or evidence of

discussions on whether the title insurance can be kept by the staying party.

I did pin your checklist to my wall. Let's see if I follow it…

Financial Professional Misperceptions

Marital Balance Sheet (MBS) – “Custom” re: incomplete documentary evidence and

insufficient quantitative data for house valuation may invalidate the MBS by creating

quantitative inaccuracy in MBS totals for asset value(s), debt(s) and critically, net equity.

“The [financial] expert and attorney must collaborate to gather the supporting

documents that evidence each line in the MBS.”

Asset/Liability [Documentary Evidence] Marital Residence Real estate appraisal

Mortgage Payoff or monthly statement

“Judges often rule directly from an MBS and attach it as an exhibit since they find

it simple, concise and unambiguous.”

Citation omitted by request.


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Multidisciplinary Ethics of Real Property Due Diligence in Divorce Legal Ethics Financial Ethics ADR Ethics Rule 31

Appendix A

TRPC 1.4 Communication 1.4(b) A lawyer shall explain a matter to the

extent reasonably necessary to permit the

client to make informed decisions regarding the representation.

[Client must make an informed

and voluntary decision re: asset

valuation and disposition]. 1.4 Comment 5 – Explaining Matters

[Negotiation]: The client should have

sufficient information to participate intelligently in decisions concerning the

objectives of the representation and the means

by which they are to be pursued … the lawyer should review all important provisions with

the client before proceeding to an agreement.

CFP “[O]btain sufficient

quantitative data …” CFP

Practice Standards 200 Series

(200-2) Practitioner - Sufficient and relevant quantitative information and documents

provide the foundation for analysis.

Ultimately, this will facilitate the

development of appropriate

recommendations.

CPA “[O]btain sufficient

relevant data …” AICPA ET Section 201- General Standards D. Sufficient Relevant Data. Obtain sufficient relevant data to afford a reasonable

basis for conclusions or recommendations in

relation to any professional services performed.

Section 1

(b) Neutral’s Role

“… assisting the parties in identifying

issues … and helping …reach voluntary

agreements.”

(c) General Principles (2) fairness

(5) full disclosure

(6) self-determination

Section 5 Self-Determination

(a) Parties’ Right to Decide “… shall

assist the parties in reaching an informed

and voluntary settlement.”

Section 8 Professional Advice

(b) Independent Legal Advice “When … [H/W] does not understand … how

an agreement may adversely affect legal

rights or obligations …”

TRPC 1.1 Competence

“Competent representation

requires the legal knowledge,

skill, thoroughness and

preparation reasonably

necessary for the

representation.”

TRPC 1.2(a) Scope of

Representation [Limited

Discovery – consent after

consultation]

Competence – CFP; AICPA;

IDFA [2]

“… serve [] clients competently

… acquiring the necessary

knowledge and skills to do so in

the area of divorce planning is

required.” IDFA/CDFA

TRPC 2.1 Advisor

“...a lawyer may refer not only to law

but to other considerations such as

moral, economic, social and political

factors that may be relevant to the

client’s situation.”

TRPC Rule 2.4 (Lawyer as

Dispute Resolution Neutral)

(b)(2) [encourage parties to seek legal

counsel]

(b)(3) [encourage/assist … resolution of

dispute]


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> Housing Condition – Impacting Children’s Health & Education

Housing affordability and condition impact children’s health and education.

http://www.nhc.org/vital_links.html

http://www.nhc.org/media/files/Housing_and_Children.pdf

House Condition Examples

Termites: 2003 divorce – entire house destroyed by termites during divorce

process.

Howell v. Howell, 2003 WL 22110309 (Ohio App. 2 Dist. 2003) (“The

parties' marital debts had been discharged in bankruptcy and their house

had been destroyed by termites during the pendency of the proceedings,

so few property issues remained to be resolved”).

Note: pest control and other condition issues impact informed decision-making re: real

property economic value. See Formet v. Lloyd Termite Control Co., 110 Cal. Rptr. 3d

551, 555-56 (Cal. Ct. App. 2010) (observing “[b]ut there are always economic

considerations when there is a transfer of real property, and this economic purpose

undoubtedly often drives the demand for termite inspections”) (emphasis added).

– Fitzmorris v. Demas, 116 P.3d 764 (Kan. Ct. App. 2005) (reversing summary

judgment against buyer and holding seller’s agent had duty to disclose written

report that termite damage repair would cost between $18,000 and $25,000).

Other house condition examples – discovered post-divorce by the “house” spouse (who kept formerly marital real property/residence). No Pre-Divorce Home Inspection:

Green v. Green, 491 S.E.2d. 260 (S.C. App. 1997) (holding PSA was

binding contract and not modifiable despite building awarded to W under

PSA with $36,500 undisclosed structural damage).

No Pre-Divorce Home Inspection = No Post-Divorce “Do Over”

where H/W Unaware of House Foundation Issues - Kelley v. Kelley,

953 So. 2d 1139, 1143-44 (Miss. Ct. App. 2007) (reversing post-divorce

modification of PSA by chancellor where neither H/W discussed or was

aware of marital home’s foundation deterioration), citing Ivison v. Ivison,






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762 So. 2d 329 (Miss. 2000) (confirming court cannot correct errors in

contract formation, only reform drafting errors).

Other Evidence of Potentially Reduced House Value Cf. short sale eligibility – calculating deficiency/”negative” equity

Short Sale Seller Advisory – from Arizona Department of Real Estate & Arizona Association of

REALTORS® (summarizing issues and legal/financial risks)

p. 5 #3 Determine the Amount Owed on the Property All debt and costs must be factored in before determining whether a short sale is feasible. Consider the delinquent loan, home equity loan or other loans recorded against the property, past due homeowner’s association fees, unpaid property taxes and the costs of a sale, such as closing costs, escrow fees and brokerage commissions. If you have more than one loan on the property, be aware that a short sale will generally require the approval of all lenders.

http://www.aaronline.com/documents/ssseller_advisory.pdf

Lien Search v. Title Search

Middle TN Mediation Mistake: $216,700 state tax lien

Discovered post-divorce by Mortgage Consultant during H’s refinance application - Ws $216,700 individual debt – a lien recorded during the marriage against title to the house H kept.

Q1: During family mediation, did H make an uninformed decision re: house value? House title? House resale-ability?

Q2: Did H’s divorce lawyer commit malpractice by failing to advise H to obtain a title search or at least a lien search before agreeing to keep the marital home in exchange for other, liquid assets transferred to W under MDA?

Q3: [CLE] When did statute of limitations begin to run under discovery rule? [Injury/Knowledge]

The immediate necessity to incur additional attorney’s fees as a direct result of attorney’s negligence constitutes actual injury under the Tennessee discovery rule triggering 1 year statute of limitations for legal malpractice claims. Honeycutt v. Wilkes, McCullough & Wagner, 2007 WL 2200285 (Tenn. Ct. App. 2007) (holding all injurious consequences need not be known for running of statute of limitations and noting cause of action accrues with knowledge and injury - when plaintiff suffers “’legally cognizable damages’ meaning



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actual injury caused by attorney’s wrongful or negligent conduct”), citing Memphis Aero Corp. v. Swain, 732 S.W.2d 608, 612 (Tenn. Ct. App. 1986).

Title Search 1/4 -1/3 “find a problem” – potential loss of marketability

o Twenty-five percent of title searches find a title problem.

Problems such as liens from unreleased mortgages, unpaid child support, alimony, parking tickets, and taxes or from unpaid subcontractors. Other things that can cloud title that are not so easy to detect include forged signatures in the chain of title, recording errors, title search errors, undisclosed easements and title claims by missing heirs and/or ex-spouses. For this reason, title insurance is highly recommended.

TLTA

http://www.tnlta.org/documents/Do%20I%20Really%20Need%20Title%20Insurance.pdf

o 1 out of 3 title searches turns up title issues that can affect a buyer’s property ownership rights.” http://www.firstam.com/title/me/products/title-insurance.html

Lien Search Tennessee Registers Association http://tnregisters.intuitwebsites.com//

This organization shall be known as the TENNESSEE REGISTERS ASSOCIATION. The purpose of this Association is to unite the Registers of Deeds for exchanging problems which exist among Tennessee counties, and where common problems exist cooperation is necessary.

County register of deeds – websites.

Register of Deeds is a Constitutional office established by the State Legislature as the custodian of legal documents pertaining to real property. These documents include Warranty Deeds, Deeds of Trust, Releases, Powers of Attorney, Liens and other miscellaneous documents designated by state law to be recorded by the Register of Deeds. The Register is elected by the people and serves a four year term

http://www.knoxcounty.org/register/

http://www.tnlta.org/documents/Do%20I%20Really%20Need%20Title%20Insurance.pdf

http://www.firstam.com/title/me/products/title-insurance.html

http://www.firstam.com/title/me/products/title-insurance.html

http://tnregisters.intuitwebsites.com/

http://www.knoxcounty.org/register/


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http://register.hamiltontn.gov/RegisterHome/Home.aspx

Liens – Reducing House Value & Post-Divorce Risks from 3rd Party Creditors

o Timing (Hidden, Known, Post-Divorce Liens)

1. Known Liens

Attorney’s Lien + Hold Harmless Provision

o Attorney’s lien from H’s lawyer on marital home survived divorce decree and transfer via quitclaim deed from tenancy by the entireties to W’s sole ownership. Pehlman v. Pehlman, 1999 WL 233514 (Tenn. Ct. App.) (finding lien may attach to right of survivorship – per Tenancy by the Entirety - without consent of other spouse).

o Ruth v. Herrmann, 662 S.E.2d 726 (Ga. Ct. App. 2008) (denying house spouse post-divorce motion to remove out spouse’s attorney’s lien on former marital home awarded to W, where lien was properly filed and W received notice of lien).

http://register.hamiltontn.gov/RegisterHome/Home.aspx


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IRS Liens – Known v. “Hidden”

o IRS Lien(s) on Marital Home Pre-Divorce (individual debt; non-debtor spouse obtains fee simple interest in marital home post-divorce).

Tax issue v. Lien Issue

“Known” Tax Liens

Bounds v. Bounds, 935 So. 2d 407, 409 (Miss. Ct. App. 2006) (affirming H’s contempt in 2006 [10+ years after divorce] for failing to pay $30,000 IRS tax lien on former marital home W retained per 1993 divorce and failing to hold W harmless):

o where W paid IRS tax lien in 2003 “because [W] could not receive any sale proceeds [for former marital home] or convey merchantable title without the lien being satisfied…”

o H refused to reimburse W – claiming financial inability from 2 failed businesses

o Because H only offered general proof and did not meet burden of proof re: economic ability), H’s contempt affirmed.

Wofford v. Wofford, 20 So. 3d 470. 476 (Fla. Ct. App. 2009) (noting at time of post-divorce foreclosure –7 months mortgage arrears-house awarded to W had 7 federal tax liens and two state tax liens H failed to satisfy and confirming there was “no way [W] could have sold the house and realized any equity out of the house with those liens in existence”).

“Hidden” Tax Liens

Fort v. Rucker-Fort, 676 S.E.2d 398 (Ga. Ct. App. 2009) (reversing $10,863.38 attorney’s fees awarded to W incurred resolving IRS tax lien issue; 2004 $120,000 IRS tax lien on marital home [H’s debt] recorded after 2003 divorce and discovered by house spouse W in 2007 after W accepted individual ownership and debt obligations and after H signed QCD).


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2. Hidden Liens

$50,000 lien

When selling the house per divorce, H disclosed to W previously “hidden” lien

- $50,000 – she didn’t know about, because REALTOR® took them through

the divorce real estate due diligence checklist.

HELOC “ATM Effect” - HELOC paid off but not closed. Paying off home equity debt does not cancel the account. As a co-borrower, Ex can use HELOC with post-divorce debt secured by the former marital home house kept by the other spouse.

Mills v. Mills, 2006 WL 1472741 (Tenn. Ct. App. 2006) (holding no breach of property

settlement by H although H conduct “vindictive” where property awarded W per

divorce subject to lien from H debt, precluding W refinance of mortgage).

Freeman v. Pittman, 469 S.E.2d 543 (Ga. Ct. App. 1996) (permitting legal malpractice claim against divorce attorney for failing to inform W of 2d lien holder where W negotiated favorable settlements with 1st and 3d lien holders – improving position of “hidden” 2d lien holder and losing opportunity to clear title to property).

3. $127,000 v. $86,000 Deed of Trust - $41,000 difference/ “net gain” to H from alleged malpractice by H’s counsel.

Hartman v. Rogers, 174 S.W.3d 170, 172 (Tenn. Ct. App. 2005) (noting [$86,000] Deed of Trust owed to H’s mother encumbering title to former marital home “discovered” 4 months after divorce by attorney retained to prepare conveyance instruments required by divorce decree and reason for “Release of Deed of Trust,” given W was awarded house “unencumbered by any lien”).

Hartman v. Cunningham, 217 S.W.3d 408, 410 (Tenn. Ct. App. 2006) Affidavit from H’s third of “at least” nine attorneys: [H] was given credit by the Chancellor with having to pay a $127,000 debt to his mother in the Chancellor's overall distribution of the parties' assets and liabilities. Had the Deed of Trust been introduced, which would have shown that the debt (even in 1993) was only $86,000 instead of $127,000, it is likely that the Chancellor would have adjusted his distribution of the parties' assets and debts thereby resulting in a net loss to [H] in the amount of the difference, $41,000.


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Section 2 - House Disposition Options include:

House sold (per divorce or exclusive use + delayed sale post-divorce),

Kept

o …. or Foreclosed.

Factors addressed here include: Insurance/C.L.U.E. Reports & Distressed Real Property

Property & Casualty Insurance Issues for “House” Spouse

Insurance – availability/affordability

Insurance issues material to house purchase similarly impact divorce real estate interspousal

transfers:

“The insurance claims history for a home may affect the cost of homeowners’ insurance,

or even its insurability. Most insurance companies use a database service called the

Comprehensive Loss Underwriting Exchange (CLUE) to track claims made. Depending

on the content of the CLUE report, and the insurance company’s policy, home insurance

may prove more difficult to get than expected.

The buyer’s claims history and credit report may also be used to determine

insurability. Insurers have used CLUE reports and other information, coupled with

termination provisions in the policy, to cancel coverage after closing.

IT IS CRITICAL THAT BUYERS ARRANGE FOR HOMEOWNERS’ INSURANCE

EARLY IN THE PROCESS OF PURCHASING PROPERTY RATHER THAN WAITING

UNTIL CLOSING TO GET INSURANCE.

If difficulty is experienced in obtaining the insurance, the buyer can ask the seller to

furnish them with a copy of the CLUE report on the property… Buyers may want to talk

to the licensee they are working with about whether obtaining suitable homeowners’

insurance should be made a contingency of the sale …”

Oregon Property Buyer Advisory at http://www.oregonrealtors.org/.docs/pg/10421

http://www.oregonrealtors.org/.docs/pg/10421


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Insurance Underwriting Risk Assessment Tools:

> C.L.U.E. and A-PLUS Reports

C.L.U.E. report – Comprehensive Loss Underwriting Exchange.

A-PLUS report – Automatic Property Loss Underwriting Service

Tracking claims history/insurability of people, houses, & cars.

» Inquiries/claims filed (even if later withdrawn by insured)

» Losses/amounts paid by insurer

House: 5 year history

“Use it & Lose It” See Long v. Long, 45 So. 3d 365, 366 (Ala. Ct. App. 2010) (noting

marital homeowners insurance was cancelled post-divorce for excessive claims).

> Mortgage impact:

» Loss of insurance accelerates the note or

» Uninsured or under-insured – Forced Placed

Higher risk, higher insurance rate

» 30-60 days insurance underwriting after loan funds [+ recorded].

"Shenanigans" – redirecting homeowner’s insurance proceeds to personal use instead

of house repair.

Bedrick v. Bedrick, 2009 WL 1335100 (Conn. Super. Ct. 2009) (noting house showed evidence of longtime “gross negligence” including smoke damage from basement fire and “[w]hile insurance paid $23,305 for the contents of the home and $22,344 for the damage to the dwelling, the damage was never repaired and the proceeds were used to pay household expenses and personal bills”), aff'd, 300 Conn. 691 (2011).

Case Study: Ohio REALTOR

New Roof


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Front Steps Too Many Insurance Claims

Roof replacement $ hidden by one spouse + roof uninsurable

Case Study: California H Roof “Shenanigan” – H & roof repair company C.L.U.E. led to discovery of “secret” bank account

C.L.U.E. Reports and Due Diligence for [Dissolution] Real Property

C.L.U.E. reports are an additional tool to discover potential [condition]

problems with residential real estate.

• By statute, real estate sellers provide buyers with a

condition report relating the seller's knowledge of the

property. Wis. Stat. § 709.02.

• Standard [Wisconsin] real estate purchase offer contracts

include Home Inspection and Condition Report as printed

contingencies.

Insurance Claims History will show:

“Was there a kitchen fire three years ago? Was there a lightning strike –

and fire from that strike? Was there damage from a burst water pipe, an

ice dam, or a sewer back-up?”

Mark C. Young, C.L.U.E. Reports: A Tool to Discover Property Problems, 77 Wis. Law. 14 (July

2004).

Under the FCRA (Fair Credit Reporting Act) and FACT Act (Fair and Accurate Credit

Transactions Act), each homeowner is entitled to one free C.L.U.E. report and A-PLUS report

per year.

> FREE C.L.U.E. Report: 1-866-312-8076 http://www.lexisnexis.com/risk/factact/

www.choicetrust.com (Atlanta, GA)

> FREE A-PLUS Report:

1-800-627-3487 http://www.iso.com/Products/A-PLUS/Consumers-Order-Your-Free-A-

PLUS-Loss-History-Report.html

http://www.lexisnexis.com/risk/factact/

http://www.choicetrust.com/

http://www.iso.com/Products/A-PLUS/Consumers-Order-Your-Free-A-PLUS-Loss-History-Report.html





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Distressed Real Property & Foreclosure 2011 Tennessee Bankruptcy Rate: Ranked #3 (after Nevada & Georgia)

http://www.creditcards.com/credit-card-news/state-us-bankruptcy-filing-statistics-1276.php

2012 Tennessee Foreclosure Rate: Ranked #20 (total foreclosures).

http://www.realtytrac.com/trendcenter/tn-trend.html

Non-judicial foreclosure – less than 40 days

TN = Deficiency State with post-divorce legal repercussions in addition to financial consequences.

o 2011 December live poll of @ 100 TN lawyers/mediators o 2010 MDA/Decree “disclaimer”

The decree does not necessarily affect the ability of a creditor to proceed against a party, or a party’s property, even though the party is not responsible under the terms of the decree for an account, any debt associated with an account, or any debt. It may be in a party’s best interest to cancel, close, or freeze any jointly held accounts.

Pre-Divorce Options for Distressed Real Property

Distressed real estate is not a “short” process – more time is needed, and exploring real estate options earlier in the divorce process is better than postponing real estate action until after divorce.

HARP - Home Affordable Refinance Program (HARP) Strategic Default

https://www.efanniemae.com/sf/mha/mharefi/pdf/refinancefaqs.pdf

Revised October 11, 2011

Homeowners who owe more on their homes than they are worth will be able to refinance no matter how much they are underwater, as long as they are current on their payments

Streamlined the refinancing process, doing away with certain types of appraisals and

underwriting requirements, and reducing or eliminating fees that prevented homeowners

from refinancing in the past.

http://money.cnn.com/2011/10/24/real_estate/housing_refinance/index.htm

http://www.creditcards.com/credit-card-news/state-us-bankruptcy-filing-statistics-1276.php

http://www.realtytrac.com/trendcenter/tn-trend.html

https://www.efanniemae.com/sf/mha/mharefi/pdf/refinancefaqs.pdf

http://money.cnn.com/2011/10/24/real_estate/housing_refinance/index.htm


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2012 Modification of HAMP – extended to Investment Real Property Under an expansion of the Home Affordable Modification Program, investors can seek mortgage loan modifications for rental properties, regardless of whether the home is occupied by a tenant or it is vacant but the owner plans to rent it. Previously, only owner-occupants were eligible for loan modifications under the government's plan, but officials said they decided to take this step because foreclosed rental properties were having a particularly detrimental effect on low- and moderate-income renters.

http://www.chicagotribune.com/business/breaking/chi-administration-looks-to-extend-mortgage-mods-to-rental-properties-others-20120127,0,7814725.story 2012 Expiration or Sunset of Key Federal Legislation:

Mortgage Forgiveness Debt Relief Act

[“forgiven” deficiency – taxable income after 2012]

HAMP – Home Affordable Modification Program [disappointing results]

HAFA [Short Sale] – Home Affordable Foreclosure Alternative Program

Short Sale 101 Short Sale Seller Advisory – from Arizona Department of Real Estate & Arizona Association of REALTORS® (summarizing issues and legal/financial risks) http://www.aaronline.com/documents/ssseller_advisory.pdf

FICO® – Credit Score Impact from Late Mortgage Payments/Distressed Real Estate

o FICO® Score impact – larger impact from higher (better) starting score. o Similar score impact from short sale/deed in lieu/settlement and foreclosure. o Improvement begins sooner, but full recovery may take up to 7-10 years

“assuming all other obligations are paid as agreed” (longer recover for higher starting scores).

o Moderate - severe delinquencies may have similar impact but “there may be significant difference in time required for the score to fully recover.”

Source: Joanne Gaskin, FICO® 03/24/2011 http://bankinganalyticsblog.fico.com/2011/03/research-

looks-at-how-mortgage-delinquencies-affect-scores.html

See Long v. McAllister-Long, 221 S.W.3d 1, 10 (Tenn. Ct. App. 2006) (“…if the party who has been ordered to make the monthly payments on a joint debt defaults, the other party becomes responsible for the debt and the late charges and runs the risk of damage to his or her credit rating.”)

http://www.chicagotribune.com/business/breaking/chi-administration-looks-to-extend-mortgage-mods-to-rental-properties-others-20120127,0,7814725.story

http://www.chicagotribune.com/business/breaking/chi-administration-looks-to-extend-mortgage-mods-to-rental-properties-others-20120127,0,7814725.story


http://bankinganalyticsblog.fico.com/2011/03/research-looks-at-how-mortgage-delinquencies-affect-scores.html

http://bankinganalyticsblog.fico.com/2011/03/research-looks-at-how-mortgage-delinquencies-affect-scores.html


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Section 3 - House Division Divesting joint ownership and joint debt

1. When sold, third-party transaction severs joint ownership & joint debt.

2. But when kept:

Judicial Approval of MDA – Asset Valuation/Fact Finding Tennessee public policy encourages H/W settlement of property issues. Long v. McAllister-Long, 221 S.W.3d 1, 8 (Tenn. Ct. App. 2006). But MDAs are not binding on courts and must be independently examined for fairness. Id.

Compare N.H. v. H.H., 418 N.J. Super. 262, 281 (App. Div. 2011):

“Mediation is now an accepted process in the resolution of family disputes [.]” Lerner v. Laufer, 359 N.J.Super. 201, 216, 819 A.2d 471 (App.Div.), certif. denied, 177 N.J. 223, 827 A.2d 290 (2003). It is understood that “[a] mediated divorce settlement may well look substantially different on the same facts than would such a settlement hammered out in adversarial proceedings.” Ibid. In light of that understanding, “court[s] daily approve [ ] [divorce] settlements upon the express finding that it does not pass upon the fairness or merits of the agreement, so long as the parties acknowledge that the agreement was reached voluntarily and is for them, at least, fair and equitable.” Id. at 217, 819 A.2d 471 (citation omitted).

MDAs are enforceable contract obligations. Id. MDAs regarding property settlement are not modifiable after divorce except by H/W agreement. Gallimore v. Gallimore, 2009 WL 856991 (Tenn. Ct. App. 2009).

Severing Financial Ties. Tennessee courts favor severing financial ties. See Owens v.

Owens, 241 S.W.3d. 478, 491 (Tenn. Ct. App. 2007) (confirming generally that post-divorce

cooperation is difficult and “thus property divisions are often structured to avoid, when possible,

requiring divorcing parties to . . . jointly own an asset that will require cooperation and mutual

consent down the road”).

Debt refinance, Asset Sale and Hold Harmless Agreements

Recognizing “marital debts are frequently joint debts,” and creditors are unlikely to release a

solvent co-debtor (former spouse), courts and lawyers employ: debt refinance, asset sale, and

hold harmless agreements. Long v. McAllister-Long, 221 S.W.3d 1, 10 (Tenn. Ct. App. 2006).


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Pre-Divorce Mortgage Counseling (FREE) v. Failed Mortgage Refinance After Divorce: Mortgage underwriting may “overlook” “out spouse” joint and several liability under former

marital mortgage only if “house spouse” remained current for prior 12 consecutive months:

Nurse (out spouse) could not qualify for mortgage because after divorce H paid marital

mortgage late 2 times.

o H does not qualify to individually refinance o W quitclaimed ownership per property settlement – thus, no partition action. o Post-divorce nurse cannot require H to sell house or individually refinance given

PSA “silence” on these issues.

Options: 12 months current on marital mortgage before mortgage underwriting will

“ignore” joint & several liability. Risk: even when nurse qualifies for individual mortgage

post-divorce, she would be individually liable for 2 mortgages!

2009 Nevada divorce: H awarded marital home, 1st mortgage and 2nd mortgage + hold W

harmless. W quitclaimed to H. Post-divorce, H consulted with mortgage professional

who discovered H was not on the Note and W remained sole borrower on both

mortgages.

“Hold Harmless” Provisions

Limited Protection from “Hold Harmless” Provision For “Out” Spouse re: Credit Score/Third Party Creditors

Even “inartfully” drafted hold harmless provisions compel timely payment and default avoidance as an indemnity agreement. Long v. McAllister-Long, 221 S.W.3d 1, 10-11 (Tenn. Ct. App. 2006).

Compare In re Marriage of Beals, 149 Wash. App. 1016 (Wash. Ct. App. 2009) (unpublished) (holding order requiring H to make timely mortgage payments did not modify dissolution decree and merely enforced H’s obligations where W alleged H’s late payments were “ruining her credit because she was still listed as a mortgagor and [H] refused to refinance or sell the home”).

But if the “Out Spouse” signed a quitclaim deed and is no longer named “on title” or an owner of record, post-divorce recourse for House Spouse mortgage default/foreclosure/bankruptcy depends on express language of MDA/Decree:

Express MDA language is required for the “Out Spouse” to compel (post-default):

1. Mortgage refinance by House Spouse

2. Real estate sale


26


o See Eaton v. Grau, 845 A.2d 707 (N.J. Super. 2004); accord Barnes v. Barnes, 28 So. 3d 800 (Ala. Ct. App. 2009) (denying motion to compel post-divorce mortgage refinance, despite hold harmless provision and requirement that “out” spouse sign all documents needed for refinance, explaining refinance was not negotiated relief and would impermissibly modify divorce judgment).

Unauthorized Modification of Divorce Decree re: Contempt & Purge Conditions Concerning Delayed or Failed Mortgage Refinance & Forced Sale

o Darroch v. Willis, 286 Ga. 566, 690 S.E.2d 410 (2010) (holding court improperly modified

divorce settlement agreement by requiring sale of marital residence, where agreement required only that Husband remove Wife's name from mortgage)

o Accord Doane v. LeCornu, 289 Ga. 379, 381, 711 S.E.2d 673, 674-75 (2011) (affirming contempt order against H for failing to pay W for equity in former marital lake house but reversing contempt order to sell property where property division provision of final divorce decree was silent re: sale and noting “ample means to compel compliance” until contempt purged).

o Whitehead v. Whitehead, 2005 WL 1544771 (Va. Ct. App. 2005) (affirming trial court lacked authority post-divorce to terminate or modify H’s existing mortgage obligation or to order W to refinance mortgage solely in her name where MSA was silent and did not provide for judicial modification) (citing White v. White, 257 Va. 139, 509 S.E.2d 323 (1999) (holding MSA, incorporated into decree, required H to pay $30,000 mortgage to bank so long as debt existed but did not obligate H to pay fixed sum to W)).

Contempt [Willful Disregard of Court Order] Tennessee

Hannahan v. Hannahan, 247 S.W.3d 625 (Tenn. Ct. App. 2007) (affirming contempt order against H for failure to comply with terms of consent order requiring QCD from H to facilitate agreed refinance of marital mortgage by W). Moore v. Moore, 2007 WL 2456694 (Tenn. Ct. App.) (holding H’s failure to qualify for mortgage refinance after divorce was not contempt but breach of property settlement; H required to pay $800+ for W’s legal fees per property settlement breach under “non-compliance” clause).


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Dangers of Title Transfer & Deeds (including Quitclaim Deeds and Decree Property Title

Transfer)

5 Dangers for Litigants who transfer title without real property due diligence:

1. Voiding or limiting recovery under House Insurance (Property & Casualty)

Note: Tennessee common law defines insurable interest more broadly than other states, and in the absence of insurance policy language, H/W may retain an insurance interest after QCD per divorce if, for example, the grantor spouse continues to reside in the house. Cf. Adams v. Tennessee Farmers Mut. Ins. Co., 2010 WL 1444477 (Tenn. Ct. App. 2010) (holding Father retained insurable interest in house at time of loss from fire despite quitclaiming title to children for estate planning purposes after insurance policy issued but before loss where father continued to reside in house, paid all house expenses, and father suffered loss of residence/use from house fire).

See also Davis v. Davis, 223 S.W.3d 233 (Tenn. Ct. App. 2006) (holding H retained insurable interest and marital interest in family home despite pre-divorce QCD H signed after house fire and awarding H ½ insurance proceeds).

Generally, insurable interest is voided (after divorce) where:

1. Named Insured no longer titled owner after QCD

2. Titled Owner no longer a beneficiary after divorce (and not a named insured)

1 & 2:

Morgan v. Am. Sec. Ins. Co., 522 So. 2d 454 (Fla. Ct. App. 1988) (holding because the named insured must have an insurable interest at the time of loss, and fire occurred after W, only named insured, quitclaimed title to H, W had no insurable interest and H was neither a named insured nor beneficiary [as former “spouse”]) (note: H purchased separate homeowner’s insurance after recording quitclaim deed).

Cotton States Mutual Insurance Co. v. Haire, 449 S.E.2d 161 (Ga. Ct. App. 1994) (holding homeowner’s insurance void after fire destroyed house post-divorce where during marriage W was only named insured on homeowner’s insurance, and after W quitclaimed title to H, H failed to obtain written consent from insurer to change named insured, W had no insurable interest and H was neither a named insured nor beneficiary [relative in the household of a named insured]).

Cf. Archer v. Cotton States Mut. Ins. Co., 303 Ga. App. 878, 695 S.E.2d 329 (2010), cert. denied (Oct. 4, 2010) (affirming policy did not cover


28


home destroyed by fire after executor transferred title from decedent insured’s estate to himself).

3. Non-titled former spouse may recover up to amount of lien secured by property or remaining mortgage obligation (if borrower, co-borrower, or indemnitor).

Johnson v. Allstate Ins. Co., 870 P.2d 792, 795 (Okla. Ct. App. 1993) (holding where W quitclaimed title to H and post-divorce fire destroying former marital home, W’s insurable interest was limited to amount due mortgagee on its note and mortgage) (“[W] had no title, ownership, insurable interest, or other interest in the real property (the home) involved here. She had no factual expectation of an actual, lawful, substantial economic interest in [H]'s general assets from which she would ever be satisfied.”)

Cf. Republic Ins. Co. v. Martin, 182 Ga. App. 390, 392, 355 S.E.2d 694, 696 (1987) (“while it is clear that [H] no longer had equitable title to the property, it is also clear that he retained an equitable interest in it because of his continuing liability on and payment of the second priority note to [loan servicer]”).

2. Voiding Title Insurance

a. Named Insured no longer titled owner after conveying title

“The named [insured] may not be able to bring an action where he … transferred ownership of the property to another entity, even when they are the owners of the other entity.” Larsson, Eric M. Cause of Action Against Insurer to Recover Benefits Under Title Insurance Policy, 46 Causes of Action 2d 605 (Originally published 2010).

Cf. id., citing, inter alia, Shotmeyer v. New Jersey Realty Title Ins. Co., 948 A.2d 600 (N.J. 2008) (affirming summary judgment for title insurer denying claim where policy lapsed when named insured general partnership [owned by brothers] conveyed real property to limited partnership [owned by same individuals]).

3. Accelerating the Note


29


4. [After QCD] assuming “name is off” the marital joint mortgage.

Only 2 ways to “remove name”/extinguish joint & several liability

i. Sell the house

ii. Other spouse individually refinances & loan funds

Post-Divorce Blog Questions (Misperceptions)

But I signed the papers? [QCD v. the Note]

Do I only owe half [of the balance for the joint mortgage]? [Joint & Several

Liability]

Why is my credit score destroyed? [Co-Borrower]

Why do these legal documents have no effect? [Decree/MDA v. the Note]

5. Post-Divorce Clouded Title [“glitches” from divorce]

Tennessee: Divorce decree requiring H to execute QCD and upon H failure/neglect, “____ County Clerk & Master shall issue Clerk & Master Deeds upon Motion of the Plaintiff.”

Tennessee 2: QCD transferring property owned by H & W to HW, resulting in ________.

$15,000 Lien [Marital Debt] House Spouse [W] paid $7,500 & received personal release from creditor. But,

creditor refused to release lien against title to marital home.

To refinance post-divorce,

[W] paid second $7,500, thus personally satisfying marital debt $15,000.

W’s divorce attorney argued with title insurance underwriting counsel that

W was not [personally] responsible for the second $7,500.

o Because “liens follow the land,” the House remained indebted for

H’s share of this debt.

o Unless creditor released $15,000 lien, no title insurance and thus

no funded loan (either refinance or sale to third party).


30


Section 4 – Content for Real Property Information Sheet Recommendation: before ordering property mediation or appointing an appraiser or real estate agent, or included in that order, consider trial court request for the status (acceptable litigant response: “unknown” or “known” + data/document(s)) re: the following:

1. Mortgage Evidence [FREE] a. Consultation b. Refinance Pre-Qualification or Pre-Approval

2. Lien Evidence [FREE] a. lien search at County Register of Deeds

3. Title Evidence 4. Title Insurance Evidence [FREE]

a. Consultation 5. House Insurance Evidence [FREE]

a. C.L.U.E. or A-Plus Report b. Consultation

6. House Condition Evidence 7. Distressed Real Estate Evidence [FREE]

Content for Real Property Information Sheet Opinions of Value & Price

Appraisal(s) Tax Assessment(s) Broker Price Opinion (BPO) Comparative Market Analysis (CMA) Petitioner Valuation Respondent Valuation

FMV – Debt = Equity [“how did Petitioner/Respondent arrive at this value?]

Negative Equity

Deficiency H/W liability + tax consequences

Distressed Real Property Options


31


Keeping House:

Loan workout

Loan modification

Refinance – HARP program

Not Keeping House:

Deed in Lieu of Foreclosure

Short Sale – HAFA program

Foreclosure

Title Evidence

How Title Is Vested If property is not sold (or pending sale) after divorce, how title will be vested (including form of joint tenancy).

All Voluntary Liens on the Property [Deed(s) of Trust + Note(s)] All Easements, restrictions, maintenance assessments Property Tax status Homeowners Association Dues status (where applicable)

Lien Evidence + Periodic Updates (Date down) during divorce process

Lien Search [Free] or Part of Title Search [Fee-based] Involuntary Liens

Title Insurance Evidence Identify Title Insured(s) Title Search

Note: Before changing title, H/W may consider filing claim under “marital” title insurance policy

Title Conveyance per Divorce [PSA/Divorce Decree or Vesting Instrument Preparation + Recordation]

Conveyance Instrument(s) Deed preparation [Quitclaim Deed (QCD)]

Disclaimer: QCD prepared with/without benefit of a title search Recordation Contingencies for failure to prepare/sign/record QCD or Divorce Decree

Mortgage Evidence [Deed(s) of Trust + Note(s)]


32


Identify Note borrower(s) Terms, prepayment penalties, subordination/[e.g., HELOC] Identify Deed(s) of Trust and signatories

Mortgage and Deed of Trust Disposition per Divorce

Refinance (spouse attempt/deadline) Hold harmless provision [and informed H/W decision-making re: limits of same] Express contingencies for failed application (e.g., sale of property)

House Insurance Evidence

C.L.U.E. Report or A-PLUS report Insurability (whether post-divorce homeowners insurance policy will issue to H or W) Affordability (post-divorce cost of house insurance) If property is not sold (or pending sale) after divorce, confirmed impact on “marital” homeowners insurance policy [post-divorce insurable interest(s) of H/W.

Condition Evidence C.L.U.E. Report or A-PLUS report Home Inspection Repairs

Invoices Free bids from licensed condition remediation providers

Enhanced Real Property Due Diligence – Pilot Program More Relevant Financial Data - Potential Credits against House Value


33


FREE FEE-BASED

Lien Search & Updates

– County Clerk’s Office/Recorder of

Deeds

Insurance C.L.U.E. Report

– http://www.lexisnexis.com/risk/factact/

– 1-866-312-8076

– Licensed Insurance Agent

Mortgage/Banking Counseling

– Individual refinance

Pre-approval; Pre-qualification

– New purchase

Credit Report (FTC)

– www.AnnualCreditReport.com

Title Search & Updates (Datedown)

– Chain of Title

– Liens

– Encumbrances

– Title Insurance

Condition-Home Inspection

– Major systems/structures

– +Termites/Pests

– +Radon/Carbon

Monoxide

Tax Counseling

– IRS Publication 504

“Divorced or Separated

Individuals” (& other free

PDFs)

http://www.lexisnexis.com/risk/factact/

http://www.annualcreditreport.com/


34


Real Estate TEAM

Project Manager(s):

• Real Estate Agent/REALTOR®

• Mortgage Professional

_______________________________

Legal

• Lawyers

– Family

– Real Estate

• ADR

– Collaborative Law

– Mediation

Financial

• Accountant/CPA

• CFP (Certified Financial

Planners)

• CDFA (Certified Divorce

Financial Analysts)

Real Estate-Related (Consultations)

Real Estate Agent/REALTOR®

Banking/Mortgage

Title Insurance

Home Insurance (Property &

Casualty)

Home Inspection

Home Warranty

House Condition Remediation:

• roof replacement/repair

• appliance/HVAC/dryer vent

inspection & repair

• mold remediation

• basement/crawl space repair

Appraiser


35


Kelly Lise Murray, J.D.

Professor Murray is Vanderbilt Law School’s Director of Professional Education and Founding

Director of the Vanderbilt Collaborative Project (VCP). She also serves as the VCP’s lead

investigator/faculty for the National Family Court Project on Housing and Financial Justice. This

project highlights the critical intersection of law and financial well-being – often exacerbated by

the divorce process – to increase access to justice for divorcing spouses by fostering informed

financial decisions through housing, financial, and joint debt literacy in family court.

Professor Murray led a Plenary Session on divorce real estate at the American Bar Association

Family Law Section’s Spring Meeting April 2010 in New Orleans, LA and taught a 5 hour

workshop for the International Academy of Collaborative Professionals national forum October

2010 in Washington, D.C. She co-founded DivorceThisHouse.com in 2008 and has developed

curriculum and trained nationally hundreds of family judges as well as real estate, financial,

legal professionals and divorcing homeowners about property valuation and other property-

related issues that impact divorce settlements. Her book, REFORMING REAL PROPERTY

DUE DILIGENCE, is scheduled for release in 2012 by the American Bar Association Family Law

Section Publishing.

She graduated Phi Beta Kappa from Stanford University and cum laude from Harvard Law

School. With an Illinois law license and a Tennessee real estate license, she's also a Vanderbilt

legal writing instructor and REALTOR®.

[email protected] 615-343-5806

mailto:[email protected]

Documents

Equitable v. Actual Division of Real Property in Divorce Cases