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tomandemma · Mar 30, 2015, 11:05 AM

My wife and I are both on title on our house but legal aid has put a lien on for her legal for divorce she agrees to be removed from title but can this take place with lien

AK lawyer · Mar 30, 2015, 02:01 PM

If they have a lien on property which is owned by you and your wife, no, it cannot be removed without their consent.

Do I correctly I assume this is a divorce from her previous husband, and she gave legal aid a lien? Either that, or they sued her, got a judgment, and such judgment is the lien?

ScottGem · Mar 30, 2015, 03:24 PM

Once the lien is filed, the property cannot be transferred unless the lien is satisfied or released.

Fr_Chuck · Mar 30, 2015, 05:07 PM

Is there another mortgage also? If both names are on it, the house will need to be refinanced, if not, she could still be liable for that debt.

But no, until that lien is satisfied, the property can not be transferred

dontknownuthin · Mar 31, 2015, 06:25 AM

First, you can only get rid of the lien by paying the debt. Second, the only way to remove one of you from the mortgage is for the person who is keeping the property to refinance. To do this she will have to satisfy the lien. You might do best to petition the court to order her to sell the home to get you off the mortgage. Being removed from the title will not remove you from the mortgage.

ScottGem · Mar 31, 2015, 06:32 AM

Dontknow,
Sorry but that's not quite accurate. A lien can be removed if it is not valid or the judgment is vacated, not just by paying it. Second, what does a mortgage have to do with the question here? The OP said a lien was placed on property jointly owned. Whether there is a mortgage on that property only means the mortgagor might have a primary claim over the lienholder. The OP was asking if the lien could be removed by removing the spouse form the title. The answer to that is not while the lien is in effect. He isn't asking about removing himself from a mortgage.

AK lawyer · Mar 31, 2015, 10:29 AM

It would be interesting to know whether the house was OP's or his wife's prior to their marriage.

If it was his, he made a bad mistake in conveying it to his wife and himself jointly.

On the other hand, if it was hers, presumably he took his interest subject to the lien, and thus shouldn't have been surprised when he realized that the lien applies.

The other thing that strikes me is odd is the fact that "legal aid" (presumably a non-profit law firm established to help people who couldn't otherwise afford legal assistance) took a lien for what is normally (in effect) pro bono representation. I wonder how common this is, and whether this is allowed by their charter. It is arguably prohibited by attorneys' codes of ethics, which in most states prohibit an attorney from entering into a contingent fee agreement in a divorce case. It looks like a contingency to me: if she didn't end up with an interest in the property, the legal aid firm would have received nothing.

dontknownuthin · Mar 31, 2015, 04:31 PM

Thanks for the corrections. I was assuming the lien to be valid. In such a case, to get rid of it they would need to pay the associated debt. If the debt is the wife's, selling the property would make sense if she cannot pay the debt. As I understand it, if the lien would be paid from the proceeds if such proceeds are adequate. I brought up the mortgage because there is little benefit to most people remaining on a mortgage for a property while being removed from the title for that property.

AK lawyer · Apr 1, 2015, 07:06 AM

Originally Posted by dontknownuthin

... I brought up the mortgage because there is little benefit to most people remaining on a mortgage for a property while being removed from the title for that property.

Of course, the mortgagee (usually a bank) would have no reason to approve releasing such a person from the mortgage note. And removing such a person from the title may well trigger a due-on-sale clause.