Transcript

Lindsay Menz: I was a stay at home mom, and I qualified for a mortgage and refinanced my house into my name. So it can absolutely happen. My number one suggestion is get employment, find a job. Begin to build something for yourself. Have money coming in because that’s what you’re going to need to qualify.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host attorney Holly Draper.

Holly Draper: Today we’re excited to welcome Lindsay Menz to the Texas Family Law Insiders podcast. Lindsay is a mortgage loan officer located in North Texas. She provides mortgage services for the entire US. Lindsay and her experience team are ready to assist clients with mortgages ranging from simple to complex, and she regularly works with parties going through divorce. Lindsay is passionate about the real estate process. Her company provides multiple loan programs with services to help clients going through divorce. Lindsay is also a single mom to three girls. She and her girls live an active and joyful life. Thank you so much for joining us today.

Lindsay: Thank you so much for having me. I’m so grateful. It’s nice to meet you face to face.

Holly: So why don’t you start by telling us a little bit about yourself.

Lindsay: Yeah, so like you said, I’m a single mom to three kids. So I’ve been through the divorce process myself, so I understand it very well. I do lead a very active lifestyle. We love to ride bikes, go hiking, go snowboarding and sledding. I’m very passionate about traveling and good food. I love the real estate process. So I’ve flipped houses and I’ve owned rental properties. So I know the ins and outs when it comes to real estate.

Holly: So, why don’t you tell us about your current business.

Lindsay: Yeah, so I work for Cross Country Mortgage, and we lend throughout the entire United States. We work with borrowers, mostly remote just because of COVID and life, but we have offices throughout the United States that will meet with our clients directly as well. So we do anything from refinances, new home purchase, one time builds. So if you purchase a lot and build your own home. We do vacation properties, rental properties. So any sort of loan really that you can imagine when it comes to residential lending.

Holly: So mortgage issues are very common when we’re dealing with people going through divorce. Either they’re having to do a refinance, or they’re looking to buy another house. What are some of the complicating factors that divorce brings to the mortgage or refinance process?

Lindsay: That’s a great question. I would say the number one complicating factor is credit scores. And a lot of that is due to people utilizing a lot of credit or changing their credit profile in the midst of the divorce. So maybe you have somebody paying for their lawyer on a credit card. And so that number just keeps getting higher and higher, or having to take out new loans.

So maybe having to purchase a new vehicle because they’re getting a divorce or opening a new credit card to take on incurring costs that they have in their life. So just credit scores changing, often lowering their credit profile becoming more dynamic, which is a positive thing. But right when it first happens that can change your credit score. So that’s often one of the top things that I see is credit scores going lower, which will affect your ability to qualify.

Holly: So at what point in the divorce process, would you recommend that attorneys have their clients connect with a mortgage lender who is experienced in dealing with divorce.

Lindsay: I would definitely encourage them to connect pretty early on. And the reason I say that is the mortgage lender can provide them some guidance towards qualifying and then help them with the divorce negotiations. Because the truth is, it’s not easy. It’s not usually pretty, it’s not usually amicable. That’s kind of a rarity. And so you want to be prepared ahead of time going into negotiating going into any sort of mediation, or hearing that you’re going to have prepared ahead of time. Knowing what your home is worth, knowing what your options are.

Maybe it’s best for you you to stay in the home or maybe it’s best for your ex to stay in the home and you to get the cash settlement of the equity. So I think coming into a mortgage lender from the beginning and getting a good idea from them. What your credit options look like as far as qualifying for a mortgage is best at the beginning. Because you can take those steps throughout the divorce process to make sure you’re setup as best as you can be for when your divorce is final and you’re really trying to start life over.

Holly: Do you often work with the financial advisor that maybe is working with the divorcing party in that process?

Lindsay: Yes, we have a lot of financial advisors that we work with closely to help our clients become knowledgeable in the best steps for them. We also have a great credit repair specialist we work with. And he works really hard to help people have the best credit profile. And he works also to get things off their credit. I have people who come to me and say, hey, I was getting a divorce. My ex was supposed to pay for this, and they didn’t and it tanked my credit, what can I do about it? So just just different scenarios come up like that, that are really unexpected, and really unknown until you’re in the process of a divorce.

Holly: So with the credit repair specialist, how long does that process take? Is it something where we can have a client going through a divorce, they realize their credit isn’t isn’t good enough. Do they have time to work with that repair specialist, get it fixed, and be ready to qualify for a mortgage all during the divorce process? Or is that more long term?

Lindsay: So Holly, you can answer this best. Standard divorce in Texas, 60 days is kind of the minimum. Right? Is that correct?

Holly: That is the minimum. It’s very, very rare that will be done that quick. I mean, I would say typical divorce is probably anywhere from six to 12 months.

Lindsay: Yeah, so that’s exactly my thoughts. 60 days, it’s not going to happen, you’re not going to repair your credit in 60 days. You might make a little bit of work a little bit of effort and steps towards repairing it. But in your standard six months to 12 months divorce, you absolutely can make progress on your credit in order to help you qualify.

Holly: So I know a lot of people that we deal with going through divorce have been stay at home moms. Is there any hope for the stay at home mom who’s wanting to keep the house? Or who’s wanting to qualify for mortgage to buy their own?

Lindsay: Yeah, absolutely. I was a stay at home mom, and I qualified for a mortgage and refinanced my house into my name. So it can absolutely happen. My number one suggestion is get employment. Find some sort of employment as quickly as you can. Maybe you’ve had a little side hustle, maybe you’ve done MLM or something like that, continue that and build that up. The best income is W2 in order to get you qualified. So even if you work part time, at a daycare part time at a preschool, do something in order to start to gain income. That’s regular and qualifiable income. So I would tell your clients from the get go, find a job, begin to build something for yourself, have money coming in. Because that’s what you’re going to need to qualify.

Holly: To what extent can child support or spousal maintenance play into their ability to qualify?

Lindsay: Yeah, it absolutely can. They have to make the choice to disclose it, because we cannot qualify with it unless they want to utilize it. The biggest parameter is 10 years. So we need to see at least six months of child support income, in order for us to utilize it to qualify. You can’t preemptively qualify with it. So let’s say your divorce is settled, but they have not begun to pay you. We can’t utilize that, we have to see at least a minimum of six months. Let’s say you go through temporary orders hearing and you begin to receive child support. And you’re getting towards the end of your divorce being finalized that you’ve received it for six months. Even if your divorce isn’t quite quite finalized, we can now utilize that to qualify you.

Holly: So does it have to be in a court order on a temporary basis? Or can it be, you know, he’s just writing our check that says child support every month for six months while this divorce is pending? Is that going to count?

Lindsay: It is not going to count. It has to be within the judge’s orders. So it could be temporary orders. It could be an MSA, a mediated settlement agreement, something like that. It could be a check written, there just has to be documentation around it. You need to be able to show the check from the you know person you’re divorcing. And then you need to be able to show those deposits within your bank account. It’s best to go through your attorney general for your state. If you are able to, if you can convince the other person to pay through the proper channels. That’s great. A lot of people will pay at the divorce attorney’s office so maybe bring it to Holly’s office. And then the other party goes and picks up from there. And there’s a form you can have filled out that shows that continuous income as well.

Holly: So let’s say that the divorcing couple is relatively amicable and they want to help the stay at home mom be able to qualify. And they’re still living together. If we have a court order that says he’s going to pay your child support of X dollars a month, and it’s going, he’s paying her and it’s going into her separate bank account, is that going to get them there?

Lindsay: If he’s paying it to her, yeah. Absolutely.

Holly: Even though they’re still living in the same house, they’re still really functioning the way they always have. There’s now this paper trail of support.

Lindsay: Yes. Even if it goes into a joint bank account, as long as we see documentation and continuous payment for six months at minimum, then we can qualify with that.

Holly: How far in the future does child support or spousal maintenance need to be going for that to be factored in on a mortgage?

Lindsay: So it has to be at least a year. So if you have a child who’s 17, and child support is going to end but by the time they turn 18, we can’t utilize that to qualify you. The same with Social Security. Maybe you receive money from the state, you have an adoptive child, the same thing. If that that money is going to have an end date within the next year, we cannot utilize that money.

Holly: Is the end date of a year the same for spousal maintenance, or is that longer?

Lindsay: The same. Yeah.

Holly: So one of the other common issues that we see a lot during the divorce process is one person buying out the other person’s share the equity and when we’re recording this, we’re in the midst of what I would say is a very hot real estate market. So you know what, from a lender’s perspective, can you explain a little bit about the appraisal and buyout issues that you see in divorce?

Lindsay: Sure. So you asked earlier, when should a client come to me, my suggestion is always right away, because we can begin that appraisal process. You don’t want the client to think that their home has a certain value, and then they decide to let their spouse take the home. And they have agreed upon an amount. But an appraisal comes back later. And it’s so much higher, you’ve left a lot of equity on the table that your client could have been privy to.

So again, come to me right away, we’ll begin the appraisal process and find out the actual value of your home. You want to know what the equity is, in order for us to really get an idea of what you need to do to refinance the home and take that equity out of the home to pay off your partner that you’re divorcing through the process. It’s substantial amount, especially with the market changing. So the market right now, like you talked about is so hot, home values are rising. And so maybe you have a home that you purchased even a year ago, and you think it’s not a big deal, we don’t have that much equity, we just purchased it. That is not the truth.

Right now, home values are just rising so quickly, that a lot of people who even purchased within the last year have a lot of equity. And they’re able to substantially utilize that if they want to sell their home and purchase a new home. Or they want to do a cash out refinance to pay off liabilities and debts. It’s a very good thing, when you’re looking at having equity to work with in order to pay off your spouse or in order to buy a new home. Really, if you want to make a clean, clean break and purchase a new property. Taking that equity and putting it into a new home is the best way to do so.

Holly: That assumes you can find a new home right now!

Lindsay: That’s true. Very, very true.

Holly: That’s one of the kind of unique issues that we’re dealing with right now in divorce when we’re talking about somebody whose house is okay, we’d like for someone to be able to stay there. But if they can’t, where are they gonna go? They gotta be able to buy something else or read something else. And I think that’s difficult too. It’s a crazy time from a real estate standpoint.

Lindsay: It’s a very crazy time. I actually have a buyer that’s finalizing a lease option contract, which is an investor’s purchasing the property for him. He just recently has gone through a divorce. So his credit score has been tarnished. He makes good income, he has, you know, steady credit portfolio, he just unfortunately has had that change with his divorce. So an investor is purchasing the property, he will assume full ownership of it. But he will have lease option availability within the next 1, 2, 3 and five years to purchase the home. So it allows him to take the value of the home right now, and kind of hold on to that for the next several years in order to purchase at this market instead of how the market continues to rise over the next several years.

Holly: So if we have clients going through a divorce, and they are hopeful, either they’re hoping to be able to keep the house or they’re already agreed that they’re going to keep the house. When you start that process and you get an appraisal. How long is that good for?

Lindsay: That’s a great question. So most appraisals have an expiration date and it’s a couple months, but I would say if your client had an appraisal done even six months ago, it is not going to be valid today. The market has just blown up so quickly right now, that it’s not going to be a substantial appraisal. Especially if somebody is wanting to pull out as much cash as possible from their property, they will want to have a new appraisal done.

Holly: So this podcast is geared towards family lawyers. So what can we as attorneys do to help make the refinancing process easier for our clients?

Lindsay: I think the best thing an attorney can do is provide resources right away. Connect your client with a lender, somebody who knows their market knows their area. I also think giving them options walking through the different options they have as far as what their mediation would look like, you can sell your home, you can keep your home, you can lease your home, and letting them know that not leaving is still an option. But sometimes leaving is the better option.

And I think just getting them comfortable with not keeping their mindset small. I think when you’re in a divorce, you’re so concerned about the future, and you really become narrow minded into what you want, right. And life is hard and kind of chaotic. So I think providing them alternative options to what maybe they had in mind. So maybe your client just wanted to leave, because they wanted to get out the house, they don’t want to stay there anymore. Maybe staying is the best option for them right now, especially with this market. So just walking through, what that would look like and why it would be best for them is really, really smart and a good help to your client.

Holly: So you mentioned something about leasing. And the scenario where you have an investor that buys house and the person leases it back. Is that something that you all help facilitate? You connect investors with people? Or are they on their own to find an investor?

Lindsay: If they know an investor, absolutely, they can work with that investor. But we do have several investors we work with. We have investment groups that we know we can definitely work to get them connected with somebody who would be able to be an investment partner with them.

Holly: When you’re dealing with those kinds of investment partners do they usually have kind of a max cap of value of the house they’re willing to go?

Lindsay: Every investor has a different portfolio that they hold. I think it’s just a conversation to have to see where your clients at and what they’re needing.

Holly: Interesting. I had never heard of that as an option. But I definitely think it’s something to add into the portfolio, especially for people who maybe can’t qualify for that mortgage on their own.

Lindsay: Yeah, absolutely.

Holly: So you mentioned mediation a couple of times. And as you know, I’m sure not all attorneys or their clients will connect with a lender before mediation. And that mean, that’ll mean if they settled, that they’re locked into a binding mediated settlement agreement. What advice would you give attorneys who may have locked their clients into an MSA that has some bad refinance language.

Lindsay: So I think the biggest thing you can do when your clients entered into MSA is to negotiate for them. I absolutely think that your client needs to find some sort of even ground with the opposing party. And if they can’t find that, then we can work the best that I can as a lender, to help them with solutions regarding the MSA that they’ve entered into. I think once you’ve come to that agreement, I know sometimes it’s hard to go back and negotiate. But I think if you find yourself in a position where you’re giving up a lot of equity, and you don’t want to have to do that, I think just going back to the other party and seeing if there’s anything you can do to come around to better terms for your client.

Holly: Do you ever participate in the mediation process or look at sample language from attorneys and weigh in on what they should include?

Lindsay: Yeah, I’ve definitely had people send over their divorce, you know, terms drawn up. And I’ve let them know, just a quick thought on it. Obviously, I don’t have any sort of legal background. But I’m happy to look over things and give them a good idea of what the home value is in their home working with a real estate agent. And just a great idea of how they should handle the buy out of the home, especially when they have complicated situations where maybe they have investment properties, or they have rental properties, or they have vacation homes. You want to take all of those into consideration when you’re looking at all of your properties and how to negotiate those when you’re trying to finalize a divorce.

Holly: What are some common mistakes you see attorneys make when it comes to refinancing issues?

Lindsay: I think the value of the home. Especially in this market that’s continuously changing, either way over valuing the home or way under valuing in the home. I think how quickly our market has risen right now. Everybody has no idea what their home is worth. I think you you can’t look at Zillow. You can’t look at realtor because neither of those are going to be correct. And I think really getting with a real estate partner to know where your home value lands. The other thing is forgetting properties. I’ve seen properties forgotten in divorce decrees where they now have this home sitting on the side that’s still owned by both parties. And they’re in a situation where they’re having to go back to lawyers and renegotiate when their divorce has been finalized. And I think that creates a lot of re brought up contention between the parties, and just makes a difficult situation overall.

Holly: We also see occasionally, usually, this happens when people tried to DIY their divorce, they don’t include a requirement to refinance. And from our perspective, there is nothing that we can do about it, to force somebody to refinance once that divorce decree is signed.

Lindsay: Yeah, I mean, that that was something I brought up when you have a partner utilizing your credit, or not making payments on your credit. And that causes issues in your credit score. So maybe a vehicle or a home was also in your name, you had joint credit, and the other partner was ordered to pay for those items. And when they don’t pay for those, it dings your credit score as well. And so if you have the the one partner not making payments, or not refinancing, that’s going to affect your ability to qualify. So if the home is in your client’s name, and the other partner was supposed to refinance out of their name, and they don’t do that, your client isn’t going to be able to purchase a new home without figuring out how to get that off of their credit. And that creates a lot of issues.

Holly: So as a lender, can you look at, you know, say the divorce decree says that wife is going to be paying this debt on the car. And there was really no way to get it refinanced. So wife just has to pay this debt, even though it was in husband’s name. Wife defaults. Can husband have that, or wife maybe even making payments, but there’s just that outstanding debt that’s impacting the husband’s credit. Can the lender look at the fact that the decree ordered wife to pay and kind of forgive that debt from husband’s side?

Lindsay: They can’t unfortunately. A divorce decree does not give us the power to remove something from somebody’s credit. It does impact their credit. And we can’t overlook that. It’s very similar with taxes owed, as much as you want to say, hey, this person owed that tax, when we see it as a liability, we have to count it against you.

Holly: So one of the things that we deal with a lot in divorce, where we’ve got one party keeping the house, are owelty liens. No, no, this is a whole whole other topic that we could go off on. But just in general, can you explain what they are and how they impact the refinancing buyout process?

Lindsay: Yes, so an owelty lien, a lot of people are not aware of those. A normal standard refinance, you can borrow up to 80% of the value of the home. So once we have your home appraised, we’ll know the value, and we can lend you up to 80%. So maybe you’re just doing a standard refinance, that is the total amount that we can loan to you. Maybe you’re doing a cash out refinance the same thing. So we can give you that amount of money. When you’re doing an owelty lien, you can get up to 95% of the home’s value, which is very, very helpful when you’re doing a cash out refinance, in order to pay off equity to a partner that you’re leaving.

So if you have a home, and you need to pay off part of the equity, and you don’t have the cash in the bank, you’re able to provide this lien through your divorce. And we utilize that to pull the equity out and pay that directly to the other party, which is nice. It doesn’t go through your hands, you don’t have to deal with it. There’s no interaction between any of the parties, and we take care of all of those pieces for you.

Holly: So I imagine right now, it’s not a super huge issue, because everybody’s equity has gone through the roof, but in a more flat market, or a weaker market that can really help people stay in the house. Or maybe they’re even, they’re going to be upside down if you factor in realtor fees and closing costs and all of that. But with that owelty, they’re able to stay in the house and buy out that portion of the other side.

Lindsay: Absolutely you can because when you have a market that’s a little bit slower than what we’re seeing right now. If you’re going to sell your house and you have real estate fees, you might actually lose a lot of the equity that you have in your home. And if you’ve agreed to paying out a certain amount of money to the other party, when you sell your house and you lose all that cash towards real estate fees. You might not have the same amount of money in order to pay off that equity. The great thing about that, doing an owelty lien, is you can pull up the 95% And you’re only losing out on any sort of refinance charges and costs that are normally incurred. But the great thing about that is we can utilize the same title company, we can look at lowering fees and costs. I think when we look at utilizing the same title company, we can eliminate some of those costs and those fees occured to you as well.

Holly: Interesting, I refinanced many times in my life, and never had somebody bring up oh, title companies can save you on fees. They always just use their own, whoever they use.

Lindsay: If you have refinanced within a certain amount of time or purchased your home within a certain amount of time, I will try to use the same title company.

Holly: Good to know. So our clients are going through a divorce, sometimes they are already planning to get remarried to the next person, or are they you know, they may just foresee it somewhere down the road. What can clients do to protect themselves if they are going to be getting remarried?

Lindsay: It’s a great question. And I’m going to use the word people don’t often like: prenup. And no, it’s not a word people like often. But I would say more than anything, you’re going to protect yourself. But you’re also going to protect your partner. I kind of briefly talked about it before. But let’s say your ex is supposed to pay for a liability, and they don’t end up paying for it. That liability can come back to you. Taxes, the IRS is not going to take your divorce decree as a reason for them to not put a lien against you for back due taxes. And if you have been remarried, the IRS can come after you and your new partner for the money that’s owed.

And so just protecting yourself and protecting your partner and ultimately, if you’re married, that’s protecting your joint finances together. So I think a prenup is a really good idea. I think you can do something very kind, and very simple. But I think just making the choice to know, you know, asking your advice, Holly, as a lawyer, what do you need to be protected from? And how can you protect yourself? When it comes to any sort of finances? I think as far as lending goes, the biggest thing is making sure that your finances are covered. And any sort of past due items aren’t held against you or your partner going forward in the future.

Holly: One of the issues we see a lot is, you know, people have been married for a while somebody came into the marriage with their separate property house, and they refinance. And the lender says you got to put the spouse on the deed. So if we are advising, and we’ve got a client who’s taken the house, and they may get married sometime in the future, what can they do to avoid, because that’s, it’s a presumed gift. As soon as the lender says the other spouse needs to sign off on this deed. Now, that person has inadvertently gifted half of their separate property house to the other side. So what can our clients do? What should they be telling the lender and what can they do to eliminate that problem?

Lindsay: So if you are not going to FHA, your partner does not have to be on the mortgage, if you are able to qualify for yourself. You can go conventional loan, and your partner does not have to be on that mortgage. If you’re going FHA both spouses do have to be on a mortgage, if you are legally married, both names have to be on the mortgage. The state of Texas is community property. So when you are acquiring a new home, both names will be on the deed automatically. There are ways to get around that with a quick deed. And that’s something Holly, your team I’m sure draws up regularly is a quick deed for title of a home. That is the best way for them to have the property only kept in their name.

Holly: So you can, even if somebody, you know it’s their separate property because they inherited the money, or they had it before the marriage, there’s no way for them to refinance without putting the other person on the deed, even though it’s separate property?

Lindsay: It’s a community property state.

Holly: Okay, I mean, it is, but certain things are not community. So that’s what, that’s where, you know, as attorneys, it’s heartbreaking to see someone who does this because a lender doesn’t know any better. And you know, they’re told you got to sign this and now all of a sudden, guess what, you just gave up hundreds of thousands of dollars of equity to this person that you’re gonna divorce later. So I guess the best advice is do not refinance your house if you want to keep it separate property.

Lindsay: This is a question for you. Will a prenup hold, even with a refinance?

Holly: So I mean, there’s a, the law says there’s a presumption that if you refinance, or that if you add the person to the deed, you’ve gifted them half the house. So haven’t personally researched how a prenup plays into that. But I think your prenup would have to be pretty rock solid in saying that in the event you get added to deed, it’s still my separate property.

Lindsay: Yeah, this is a question we were just talking about this in the office with the title agent the other day, that even if somebody wants to keep their spouse off the title, Texas as community property, and as you said, it is presumed that once somebody is on a title, they are gifted half of the home. And Texas requires community property.

Holly: So I mean, that there has to be a way though, because Texas also provides for separate property. But I think that’s probably a

Lindsay: Real estate attorney question. Yeah.

Holly: Yeah, there’s there has to be a way, but if there’s not there, there should be.

Lindsay: I think you should be able to do a quick deed.

Holly: But that’s after the fact, right?

Lindsay: I think that once you close on a refinance, you can quick deed the property to whatever you’d like to do. Right?

Holly: Yeah, but I would be worried that the other side doesn’t sign it. If it’s not all done contemporaneously. Which seems to defeat the purpose. But anyway.

Lindsay: So I’m going to email, I have a good real estate attorney. I’m going to email them today because we were just talking about this. So I’m going to email them today when we get off of this, and I’m going to ask them that question. We’ve been debating this and I’ve debated with the title company. I said, for us as a lender, legally, we have to. We have no choice because Texas is community property. If you look at a different state, you don’t have to put a spouse on the title. But Texas being community property, we’re required to ask for the spouse’s information.

Holly: Interesting. All right, well you’ll have to tell me what you find out.

Lindsay: Okay, I will tell you, I’m going to send you an email and tell you what they said.

Holly: So we’re just about out of time. But one of the questions I like to ask everybody who comes on the podcast, and I know that you’re not an attorney, but you still may have some advice for attorneys dealing with lender situations. If you could offer one piece of advice to family lawyers, what would it be?

Lindsay: Ask questions. Ask questions and build a network of people around you who know about real estate who know about lending. So get to know a lender, spend some time grab some coffee, ask the questions that you have. I love grabbing coffee and just talking through any challenges that come up. Because I’m going to learn from you, you’re going to learn from me, it makes both of us knowledgeable. So I think just build relationship with the lender.

Holly: I think that is excellent advice. So where can our listeners go if they want to find out more about you?

Lindsay: Yeah, on social media. It’s at Lindsay Menz Home Mortgage. That’s A Y. Lindsay Menz with the Z Home Mortgage, and then Lindsay Menz@crosscountrymortgage.

Holly: Well, thank you so much for joining us today. For our listeners, if you enjoyed this podcast, go subscribe to enjoy future episodes and leave us a quick review.

Voiceover: The Texas Family Law Insiders podcast is sponsored by the Draper Law Firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at www.draperfirm.com.