[WSBARP] Divorce Decree Silent as to Ownership of House

Thu Jan 12 16:11:32 PST 2023

The property was presumptively CP when bought, and that presumption can 
be overcome a number of ways, such as showing an inheritance, the source 
of the funds to buy, etc.  But I'm not so sure that even if it was 
separate property that would change the result, because it wasn't 
provided for in the decree.  I don't believe that the jointly owned rule 
only applies to CP.  Remember the divorce court doesn't need to award SP 
to the spouse that owns the property as SP.  So at this point I think 
the only way it wouldn't be jointly owned would be to somehow amend the 
decree, if that is even possible over a decade later and after one party 
dies.

Kary L. Krismer
206 723-2148

On 1/12/2023 3:36 PM, Eric Nelsen wrote:
>
> Agree with Andrew. Divorce was final in 2010 without addressing the 
> real estate; that means the real estate, which seems pretty clearly to 
> have been community property during the marriage, now is held as equal 
> tenants in common by them as their separate property. Post-divorce, 
> there is no CP, by definition. Doug Becker’s quickcites is a great 
> resource on CP/SP and divorce issues; I highly recommend joining DRAW 
> (Domestic Relations Attorneys of Washington) and getting that benefit.
>
> Sincerely,
>
> Eric
>
> Eric C. Nelsen
>
> Sayre Law Offices, PLLC
>
> 1417 31st Ave South
>
> Seattle WA 98144-3909
>
> 206-625-0092
>
> eric at sayrelawoffices.com <mailto:eric at sayrelawoffices.com>
>
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>
> *From:* wsbarp-bounces at lists.wsbarppt.com 
> <wsbarp-bounces at lists.wsbarppt.com> *On Behalf Of *Andrew Hay
> *Sent:* Thursday, January 12, 2023 2:48 PM
> *To:* WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
> *Subject:* Re: [WSBARP] Divorce Decree Silent as to Ownership of House
>
> I am not sure the property would be treated as CP.  I am concerned 
> that wife’s interest is a half interest as TIC with husband’s heir.  
> Undivided CP is held by the ex-spouses as TIC.  This makes it look 
> like SP, not CP.  So when H died, his half went to his child.  But W 
> retained her half interest.
>
> So it is possible, she is currently half-owner as TIC with heir of H.
>
> A deed to the son would effectively transfer her interest in the 
> property to him.
>
> As a practical matter, even if the property is CP and she inherits his 
> half, then she is full owner and she can transfer it to his son.
>
> Then the next question would be can the son reject the deed?
>
> Also, how comfortable can she feel that she won’t get dragged into 
> some quiet title thing later on down the road or some request for 
> contribution to property expenses?
>
> Those are risks she has to evaluate.  An agreement with the son would 
> put those issues to rest.
>
> Here are some cites from Doug Becker’s family law quickcites:
>
> “Community property not disposed of by decree is held by the parties 
> as tenants in common (cite omitted). The adjudication of rights in 
> property not disposed of in a dissolution decree requires an 
> independent action for partition (cite omitted).” (Wagers, p. 880) A 
> partition action seeks a declaratory judgment pursuant to RCW 7.24. 
> The attorney fees provision of RCW 26.09.140 is not applicable in such 
> an action and the costs recoverable under RCW 7.24.100 are limited 
> (Wagers, but see Seals v. Seals, 22 Wn. App. 652, 657-58 for an 
> opinion to the contrary). Note the exception for fraud in the next item.
>
> Wagers v. Goodwin, 92 Wn. App. 876, 880, 964 P.2d 1214 (1998);
>
> In re Marriage of Monaghan, 78 Wn. App. 918, 929, 899 P.2d 841 (1995);
>
> In re Marriage of Bishop, 46 Wn. App. 198, 729 P.2d 647 (1986)
>
> *Andrew Hay*
>
> Hay & Swann PLLC
>
> 201 S. 34^th St.
>
> Tacoma, WA 98418
>
> /www.washingtonlaw.net <http://www.washingtonlaw.net>/
>
> /andrewhay at washingtonlaw.net/
>
> He/him/his
>
> 253.272.2400 (w)
>
> 253.377.3085 (c)
>
> *From:* wsbarp-bounces at lists.wsbarppt.com 
> <wsbarp-bounces at lists.wsbarppt.com> *On Behalf Of *Roger Hawkes
> *Sent:* Thursday, January 12, 2023 2:27 PM
> *To:* WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
> *Subject:* Re: [WSBARP] Divorce Decree Silent as to Ownership of House
>
> If w is still alive, she can get the house if she wants it.  If no 
> will the community property goes to the spouse.
>
> *From:* wsbarp-bounces at lists.wsbarppt.com 
> <wsbarp-bounces at lists.wsbarppt.com> *On Behalf Of 
> *Jeff at bellanddavispllc.com
> *Sent:* Thursday, January 12, 2023 1:35 PM
> *To:* 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com>
> *Subject:* [WSBARP] Divorce Decree Silent as to Ownership of House
>
> Listmates:
>
> In 1994, H & W buy home under a Real Estate Contract.  On December 9, 
> 2010, H & W divorce finalized.  In the “do-it-yourself” decree, there 
> is no mention of who gets the home.  Home remains in both names, but H 
> continues to live on the property.  October, 2022, H dies. No probate 
> has been filed.  W wants her name off the property.  If H were alive a 
> quit claim deed to him would suffice.  However, there is no one to 
> “accept” the deed.  What can be done?  There is a child, who, I 
> presume, could open a probate, accept the deed then sell the property 
> for the estate.  Have any of you run into this problem?
>
> Jeff
>
> *W. Jeff Davis*
>
> *BELL & DAVIS PLLC*
>
> *Attorneys at Law*
> P.O. Box 510
>
> 720 E. Washington Street, Suite 105
> Sequim WA 98382
> Phone: (360) 683.1129
> Fax: (360) 683.1258
> email: jeff at bellanddavispllc.com
> www.bellanddavispllc.com <http://www.bellanddavispllc.com/>
>
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