Michael L. Dubois, P.A. Attorney At Law

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(207) 405-2559

Michael L. Dubois, P.A. Attorney At Law

If there is equity in the marital residence acquired during the course of the marriage, the court has the ability to divide the equity in a fair manner. The question of which party gets the home can be resolved by agreement or by decision of the judge. Oftentimes, a party will assume responsibility for the existing loan and be given an opportunity to refinance the obligation to remove the other party from responsibility for its payment. In this situation, additional funds can be borrowed to pay the other spouses’ equity interest. If either spouse cannot pay the other spouse for their share of the equity, then the court will likely order that the property be sold. The proceeds from the sale of the property would be divided in a fair and equitable fashion.

Can My Spouse Hold Marital Assets In Their Possession Until Divorce Is Finalized?

Both divorcing spouses have an equal right to possession of the marital property. When disputes arise over possession of property pending the divorce, the court can be asked to hold a hearing and allocate possession of the property and assign responsibility for payment of the marital obligations. Depending on the party’s financial circumstances, the court could award temporary possession of the marital residence to one spouse along with responsibility for payment of the mortgage as well as award possession of motor vehicles pending a final hearing.

Who Pays For The Home Expenses Until It Is Sold?

The court has the authority to assign responsibility for payment of the household expenses pending the finalization of the divorce. The party who is in possession of the home would generally be expected to pay for the ordinary and necessary expenses associated with the real estate since they are the party that is deriving a benefit from residing in the home. However, because it is a joint obligation and the parties are still married, the court can allocate responsibility for payment of the household expenses, including a contribution to the mortgage, insurance, taxes, and utilities. It is largely dependent upon the financial circumstances at the time that the parties are going through the divorce.

How Can I Get My Name Off The Mortgage Once We Have Divorced?

The promissory note that the parties signed at the time that they acquired the marital home will remain enforceable until the note is paid. If a party desires to remove themselves from the obligation to the financial institution, the note would need to be paid in full. There is no way for a court to remove someone from the obligation on the note. There are rare circumstances where the financial institution will voluntarily release the party from the note but that does not occur on a regular basis. It is important to have this issue addressed as part of the final divorce process.

How And When Can I Remove The Other Party’s Name From The Mortgage And The Deed?

The deed is a document that evidences ownership of the real estate and since it is common for both parties to be listed on the deed, the court has jurisdiction in a divorce case, to set aside to one spouse the party’s real estate. As part of the final divorce judgment, the court will set aside to one spouse title to the real estate. The terms contained in the divorce judgment have the effect of securing the release of the other spouse’s interest in the property and transferring it to the other. No further action is required to effectuate the transfer between the parties. Removal from the mortgage obligation can only be accomplished by paying off the underlying promissory note which will result in a discharge of the mortgage.

Will I Be Liable If My Ex-Spouse Isn’t Paying The Mortgage And My Name Is Still On The Property?

The note that is secured by the marital real estate will remain in both parties’ names until it is paid in full. If one party is ordered by the court to pay the note and fails to do so, then the aggrieved party can take action against the responsible party. They are still responsible to the bank, however, since the bank is not a party to the divorce and is not bound by the terms of the divorce judgment. The bank can collect on the promissory note from both parties. It is very important to address this issue in the as part of the divorce process.

For more information on Selling A Family Home To Give Equity, a case evaluation is your next best step. Get the information and legal answers you are seeking by calling (207) 405-2559 today.

Michael L. Dubois

Call Now For A Case Evaluation
(207) 405-2559