My parents are divorced. Mom is in NH. Dad has been paying mortgage, taxes, insurance, etc. Can he refinance the home w Mom’s consent?

You have a few issues here before even getting to Medicaid.

First, is he concerned for Medicaid for him, or for his ex-wife?

Second, as JoAnn observed, legal interest and rights to the house should have been addressed in the Judgment of Divorce, or Decree. Was there in fact a new deed or quit claim deed executed and recorded after the divorce? If so, how was it titled? Your father's name only? Father and mother, jointly, with survivorship rights? Other?

Assuming they held title jointly when they were married, if there was no subsequent divorce deed recorded, then on record, your mother still holds an interest that has to be addressed.

Third, if the second lot was included in the legal description on the mortgage, it CANNOT be released w/o written consent of the lender. It's part of the collateral securing the loan.

Your father would have to get a written release of collateral from the lender, then record it, which in that process would notify the local treasurer of the release.

I'm not clear on what his intent is, though, as you indicated.

If he's still owner (and potentially co-owner with your mother), they're both still responsible for the lot, maintenance, taxes, etc.

Fourth, You wrote that you have no idea what he wants to do with this lot; that's something he should address before considering any further action, even though I doubt any mortgagee would release collateral, especially at this time when it's anticipated house values will fall b/c of the viral and economic situations.

Fifth, there's a good possibility that the local city or township would have to become involved to separate the lots, depending on how they're platted and registered.

Sixth, that raises another issue, i.e., specifically whether the other lot is a stand alone lot and could be sold and on which a home could be erected. In addition, is there access to that lot if it were sold?

Some areas have Subdivision Control Acts which prevent the sale of portions of property IF that remaining property would lack access, or be basically unusable. If that happened, and the lot were sold (and slipped by a scrupulous realtor), the lot wouldn't have much value as a stand alone property.

The title company for the new owner also may very well refuse to insure the property if it were unusable.

Seventh, if the property were in a western state with water and/or mineral rights, there would be additional issues. I see from your profile that you're in LA. Igloo (a regular poster here) is an expert on legal and real property issues in LA, and could offer insight on what other issues might be involved in a single lot sale.

If he's serious, post back and I'll PM Igloo and ask her to offer her opinion.


However, I honestly don't think your father could get past getting the lender's permission; it isn't going to allow anything that diminishes the value of its collateral, especially now with an economic decline in place.

IMO, you need to read the divorce decree. Did Mom get the house in the divorce? If so, hopefully she had the deed redone showing her as the only owner. Who pays the Mortgage really doesn't matter.

If she only has a right to live in the home until her death, that may mean Dad is still a partial owner.

To do what your Dad wants would be sub-dividing the property. The Township he lives in would need to allow it. Not sure how the Mortgage would work in that respect.

If Dad is no longer on the Deed, he can't do anything. The deed should be filed with the County Court so you can find out if Mom and Dad share the property. I agree a good estate lawyer with a good deal of Medicaid knowledge is needed.

He definitely needs to consult with an elder law attorney who has experience with estate planning and Medicaid. Laws differ from state to state and his case is complicated, so this forum will not be able to give exacting, legal advice. The money he spends with an attorney will be money well spent to avoid a future calamity.

He needs to talk to a lawyer well versed in Medicaid recovery if the property in still jointly owned.

Is MOM STILL ON MORTGAGE AND OWNERSHIP OF HOUSE? So, how long have they been divorced? When did divorce happen?
I would have assumed that the divorce filings would have issued the property to be sold or something. So mom lives in house, dad lives elsewhere. It is one lot.

Does mom have POA on file? Who takes care of her? Does she have Dementia or ALZ?
DOES SHE HAVE A LIVING TRUST? DOES YOUR DAD HAVE A LIVING TRUST? HOW OLD ARE THEY?
HOW CLOSE ARE YOU TO YOUR MOM? HOW CLOSE ARE YOU TO YOUR DAD? This is a sucky situation... your mom and your dad, trying to figure out things at this stage in life...If your mom is mentally unable to think, you better get that living trust and POA going now