Divorced with a mortgage

[Rachel T]

What is the name of your state (only U.S. law)? texas

Forgive me if I have posted under the wrong forum. If so, please advise.


I have been divorced for four years and unfortunately the house I bought with my now ex-husband still has my name on the mortgage as co-buyer. I have spoken with the mortgage company and have found that he has been paying late for the past 36 months consistently and has twice been behind by 3 payments. They advised me on what needs to be done to remove my name from the loan, but my ex is not cooperating. (though he is remarried and both are working) Is it feasible for me to take him to court to force a sale or for him to refinance? My divorce decree only states that if he were to go into foreclosure, I could make good on the note and force a foreclosure. Is this my only option or can I force him to sell to protect my credit?

 

[mistoffolees]

What is the name of your state (only U.S. law)? texas

Forgive me if I have posted under the wrong forum. If so, please advise.


I have been divorced for four years and unfortunately the house I bought with my now ex-husband still has my name on the mortgage as co-buyer. I have spoken with the mortgage company and have found that he has been paying late for the past 36 months consistently and has twice been behind by 3 payments. They advised me on what needs to be done to remove my name from the loan, but my ex is not cooperating. (though he is remarried and both are working) Is it feasible for me to take him to court to force a sale or for him to refinance? My divorce decree only states that if he were to go into foreclosure, I could make good on the note and force a foreclosure. Is this my only option or can I force him to sell to protect my credit?

It's worth a try. In many cases, courts are far more willing to order someone to refinance than they were a few years ago. The fact that he's consistently late should be further ammunition.

Is there enough equity for him to refinance? If so, it shouldn't be too hard (other than the fact that he's been paying late for so long). If there's not at least 20% equity, it may be possible for him to argue that he's unable to refinance.

 

[Rachel T]

I don't know anything about how equity works. We bought the house in 96. Is that enough time to build at least 20%? If he is unable to refinance is it possible to force a sale? My divorce states that if he goes into foreclosure at any time and I make the note current, then I can assume the house and sell. He is also in arrears $4000.00 in child support and never informed the attorney general of his having lost and changed jobs. I had to pay for another order of withholding myself. Are any of these things further ammunition?

 

[LdiJ]

I don't know anything about how equity works. We bought the house in 96. Is that enough time to build at least 20%? If he is unable to refinance is it possible to force a sale? My divorce states that if he goes into foreclosure at any time and I make the note current, then I can assume the house and sell. He is also in arrears $4000.00 in child support and never informed the attorney general of his having lost and changed jobs. I had to pay for another order of withholding myself. Are any of these things further ammunition?

Ammunition in regards to the house? No. However, they could be an indication that he is having financial problems and that is why he is having problems paying the mortgage...and also an indication that he might not be able to refinance.

A house purchased in 1996 may have enough equity to refinance. It all depends on how badly home values dropped in the area during the current "bust".

 

[mistoffolees]

I don't know anything about how equity works. We bought the house in 96. Is that enough time to build at least 20%? If he is unable to refinance is it possible to force a sale? My divorce states that if he goes into foreclosure at any time and I make the note current, then I can assume the house and sell. He is also in arrears $4000.00 in child support and never informed the attorney general of his having lost and changed jobs. I had to pay for another order of withholding myself. Are any of these things further ammunition?

If it was bought in 1996 in TX and you didn't refinance since then or take out a home equity loan, there's a pretty good chance that there should be enough equity to refinance (Equity is simply the current value minus the amount that is owed). Only a few places in Texas got clobbered in the past couple of years.

If he's in arrears on CS, then you could easily go to court over that matter and ask for an order for him to refinance the house at the same time. Since he's in arrears on CS, you could also ask the judge to order him to pay your legal expenses (not always awarded, though).

Of course, for child support, you could simply go to your state child support enforcement agency and have them arrange to withhold it from his paycheck.

HOWEVER, he's lost his job recently, he's in arrears on CS, he's been regularly late on mortgage payments (sometimes 3 months). The bank may not want to touch him as far as refinancing. That's HIS problem, but it could become your problem if you get an order that he has to refinance within 60 days and the bank refuses. Make sure there's a contingency plan in the order - what happens if he DOESN'T refinance.

The wild card is what you mean by saying that the bank gave you instructions on getting your name off the mortgage but he won't cooperate. If the bank was willing to leave the existing mortgage in place if he would just sign the appropriate documents, then it will be easy. Go back to court to get the judge to order him to sign and enforce the child support order.

 

[Rachel T]

If it was bought in 1996 in TX and you didn't refinance since then or take out a home equity loan, there's a pretty good chance that there should be enough equity to refinance (Equity is simply the current value minus the amount that is owed). Only a few places in Texas got clobbered in the past couple of years.

If he's in arrears on CS, then you could easily go to court over that matter and ask for an order for him to refinance the house at the same time. Since he's in arrears on CS, you could also ask the judge to order him to pay your legal expenses (not always awarded, though).

Of course, for child support, you could simply go to your state child support enforcement agency and have them arrange to withhold it from his paycheck.

HOWEVER, he's lost his job recently, he's in arrears on CS, he's been regularly late on mortgage payments (sometimes 3 months). The bank may not want to touch him as far as refinancing. That's HIS problem, but it could become your problem if you get an order that he has to refinance within 60 days and the bank refuses. Make sure there's a contingency plan in the order - what happens if he DOESN'T refinance.

The wild card is what you mean by saying that the bank gave you instructions on getting your name off the mortgage but he won't cooperate. If the bank was willing to leave the existing mortgage in place if he would just sign the appropriate documents, then it will be easy. Go back to court to get the judge to order him to sign and enforce the child support order.

He lost his job (there is reason to believe he was fired-he had held that job over 14 years) one year ago this summer, at which time he began paying the AG CS directly, but incorrect amounts, which just added to the original arrears. After six months, he got a new job and still did not inform the AG for a new withholding order. (he told me that he had) After six more months I finally decided to get the order myself. Once the AG got my case, I was informed of the $4000.00+ arrearage. I had no idea that he was that far behind. (Ironically, if he had taken care of the withholding order himself, as the decree ordered he should, I never would have found out about it. It had already been there for four years!!) I have copies of e-mails between us where I am asking for the mortgage information and asking him to start the process of removing my name. I got no cooperation. Only this week have I started to take that matter into my own hands as well. The mortgage company will remove my name IF he 1) refinances OR 2) if he applies for a Formal Assumption. Essentially, this is just him giving permission for a new credit check etc to see if he qualifies for the existing loan by himself. Once approved, we send a copy of the divorce decree and I am off the loan. When I say that he will not cooperate, I mean that he has yet to make any efforts whatsoever to do any of this. I will send him an e-mail today explaining these instructions from the bank because I seriously doubt that he has even looked into it, even though he told me over a year ago that he did.

As for the CS, garnishing of his check has just started. He now has to pay extra to help get caught up. I am concerned though that his inability to pay his CS and his inability to pay his mortgage on time is indicative of his not being able to refinance. Can I force a sale in that case? The decree indemnifies me in regards to the house. How is damaging my credit due to his inability to pay, indemnifying me?? What I am most afraid of, is that I wont be able to do a damn thing all because he cannot hold the note himself.

 

[Rachel T]

Also, in regards to his financial problems, after seeing the mortgage statements for the past 36 months, I am puzzled as to how or why he manages to take our kids to baseball games, eat out every night, make home improvements, buy new pets, etc....

 

[mistoffolees]

As for the CS, garnishing of his check has just started. He now has to pay extra to help get caught up. I am concerned though that his inability to pay his CS and his inability to pay his mortgage on time is indicative of his not being able to refinance. Can I force a sale in that case? The decree indemnifies me in regards to the house. How is damaging my credit due to his inability to pay, indemnifying me?? What I am most afraid of, is that I wont be able to do a damn thing all because he cannot hold the note himself.

You don't understand indemnification. It doesn't mean he can't hurt you financially. It simply means that if he DOES hurt you financially that he has to reimburse you. Unfortunately, it's unlikely that you'll get a court order saying that he owes you $xxx for the damage to your credit rating - it's just too hard to put a value on it. Rather, you can get a court order that makes him take specific actions - like refinance, sell the house, etc.

I would say that your best bet is to ask him to sign the Formal Assumption documents within 15 days. If he refuses, then go to court to get it ordered, although ask the judge at the same time to order a sale if he does not qualify or is unable to refinance. With a court order in place, he'll have to sign the assumption papers. If the bank doesn't approve him, the sell order will give him incentive to add his new wife to the mortgage and refinance.

Sounds like you've got the CS under control.

 

[mistoffolees]

Also, in regards to his financial problems, after seeing the mortgage statements for the past 36 months, I am puzzled as to how or why he manages to take our kids to baseball games, eat out every night, make home improvements, buy new pets, etc....

You can certainly bring that up with the judge when you ask for an order to refinance or sell.