Do I have to force a sale of the house in a divorce?

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Do I have to force a sale of the house in a divorce?

I’ve been separated from my wife for over 8 years yet we are still married. I live in one state and she lives in another. I need to dissolve this marriage but she is not willing to do anything to assist in the process. I walked away from the house that we own and am planning on giving it to her straight out. However there is still a mortgage debt on it and she claims her credit is not good enough to get it solely in her name. Do we absolutely have to split the house? Can we continue on the path of getting divorced yet own the home together? In other words, can’t we continue to c0-own it post divorce? I don’t want to be the “dog” that makes her lose her home. I’d like for this to be as amicable as possible and her main worries is the house and the mortgage issue.

Asked on February 7, 2012 under Family Law, Washington

Answers:

Kelly Broadbent / Broadbent & Taylor

Answered 9 years ago | Contributor

In Massachusetts, the house is considered marital property.  However, if you can resolve the divorce so that both parties are happy, it is possible to not split each and every asset 50/50. 

That being said, in the current economy (where a lot of houses are underwater), it is becoming more common for language to go into a divorce agreement that indicates both parties will remain on the mortgage and deed of the house until one party is able to refinance in their own name.  In this type of situation, there is typically language to indicate one party would have possession of the house,and the responsibility to keep the mortgage current.  If that party is unable to keep the mortgage current, the other party can take over the mortgage and the house or force the sale of the house, so that it does not go into foreclosure.

This can be risky, since you must rely on your ex-spouse to keep the mortgage current.  If they default on the loan, you could have a negative impact to your credit rating.  Also, it may prevent you from obtaining financing on another property if you are looking to buy something.

 


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