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I finally decided to get a divorce after 10 years of marriage, we have a house together and both our names are on the deed and mortgage. We have no children, and both make approximately the same income and have both worked the entire time we are married. At this point I cannot take my wife any longer, she is making my life miserable and has been cheating on me. The side for cheating on me, she is become very mentally abuse of since the cheating has begun, as if it’s my fault she’s cheating. I don’t care about the house, I just want to get away from her. My problem is if I give up the house and walk away from it, I know she doesn’t have enough money to pay for the mortgage herself. If I get a divorce and give her the house, can the judge forced her to refinance and take me off the mortgage so it doesn’t hurt my credit score? Get alimony from me to help her pay for the house, is this true? I’m sure as soon as I move out of the house, she will move her boyfriend in, can the mortgage be put under his name? Please help I can’t stand living like this anymore.

ANSWER:

In this particular situation it would be advisable for you to speak with a law firm that specializes both in divorce and bankruptcy law, simply so they can give you a complete picture of what you may need to do to resolve the situation, such as my law firm. But let’s keep bankruptcy out of the picture for a while and see if we can resolve your issue simply through the family court system. You’re stating that you wish to give her the house and simply walk away, which can easily be done in divorce and if you’re willing to give up such an asset, you’re pretty much going to be able to write your own ticket on the rest of what you want. Now in this situation I would use the fact you’re willing to completely give up the house as a bargaining tool for things such as pensions and other assets. But let’s not get ahead of ourselves, let me just answer your question pertaining to the house. Most people are under the wrong impression that divorce court has the power to take someone’s name off the mortgage, this is not true. I cannot stress how many times someone has come to me complaining of the fact that the divorce court said that they are X had to refinance and take them off the mortgage and it hasn’t happened. Family Court has absolutely no jurisdiction over real estate and they cannot force a mortgage company to take your name off the mortgage. There is no need to fight about it in court, the judge in a family court has no control over real estate and mortgage companies. With this being said a judge can order a spouse to refinance the house if they’re going to get the house, but if financially that spouse is unable to obtain a refinance on their own, the judge cannot hold them in contempt for not being able to do what they cannot possibly do. This is where the issue of bankruptcy and divorce comes into play, but let’s not get ahead of ourselves again. In a situation that you’re describing where your wife could not possibly pay for the mortgage, but you want to give her the house, the only option I see is putting up the house for sale and either dividing the proceeds or giving everything to her. Since you’ve only been married for 10 years, I highly doubt you have any equity in the house unless you put a substantial down payment on, as 10 years ago the real estate market was significantly higher than it is right now. In this situation probably the best resolution for this would be that you both agree to sell the house and go your own separate ways, although we don’t live in a perfect world do we. You may have a fight on your hands, considering your ex sounds like she’s already planning on obtaining a divorce attorney who’s going to attempt to get you to pay alimony so she can cover the rest of the mortgage. Considering the length of the marriage and the fact that both of you have basically the same income and have had that income your entire marriage, the issue of alimony will not be one that you’ll have to deal with if you have an experienced divorce attorney on your side. Many women are under the false impression that simply because they were married to men for a number of years, that are automatically going to obtain alimony from him in a divorce. But the simple fact is you do not have children and both are you are employed before the marriage, throughout the entire marriage and you both make approximately the same amount of income. This is more than enough information for an experienced divorce attorney to make it so she does not get a dime from you. Also the fact you’re willing to give up the house, is a great bargaining chip for the rest of the assets in the event that she can figure out a way to pay for the mortgage. Let’s say your wife was a stay-at-home mom and you had children, or she was significantly underemployed and made much less than you did, in that situation the judge may award her the home at what which point you may want to consider bankruptcy. Or you may want to consider bankruptcy just to take your name off the mortgage if financially you cannot maintain the mortgage payments and an apartment or house for you to live in at the same time. Many people going through a divorce bankruptcy, simply for the reasons that their name is on a mortgage. The fact you’re getting a divorce, does not take away the rights of the mortgage company and if you fail to make your mortgage obligations or if your ex fails to make her a mortgage obligations this will destroy your credit score. Nothing the judge can do will be able to fix your credit score or take your name off a mortgage, this was the only reason I brought up bankruptcy. If you know that the house is underwater and you cannot sell the house to cover the mortgage and you cannot afford to pay your portion of the mortgage and rent a place for yourself to live, your only other option would be to file for bankruptcy and walk away from the situation. Most people do not like this idea, but if you wait until the house is foreclosed upon you’re going to already have your credit history destroyed and if the house is sold at foreclosure and is a deficiency between how much it sold for and how much the mortgage is worth that is going to get attached to your IRS taxes for that calendar year on a 1099 and you’re not gonna be able to discharge that in bankruptcy. This is the reason why you go to an experienced law firm that handles both divorce and bankruptcy, as these two issues very often arise together. In conclusion a family law judge cannot remove your name from mortgage and if your ex cannot obtain a refinance without your income, is nothing the divorce court is going to be able to do about that. So in certain situations if there is not enough money to pay for the mortgage or if your ex simply states that she is going to pay the mortgage in doesn’t, you’re right back in the same situation and bankruptcy may be your only option. You need to remember you cannot get blood from a stone, if there is not enough money to pay for the mortgage and for a place for you to live outside of the marital home, foreclosure is the inevitable conclusion. There is no reason to wait to file bankruptcy if you know the house is underwater and there’s no way that the mortgage is going to be able to be paid by one of you or both of you and maintaining separate residence. This is why it’s important to seek the advice of a law firm that handles both divorce law and bankruptcy law, as they very often come together because the division of assets and the division of debt, puts both parties in a situation where they will no longer be able to maintain their living situation on the income that they have.

Joseph F. Botelho, Esq.

BOTELHO LAW GROUP
Attorneys At Law

901 Eastern Ave.
Unit 2
Fall River, MA 02723

Office:  888-269-0688

Email: jbotelho@botelholawgroup.com

https://www.botelholawgroup.com/

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