If both parties are on the mortgage, are both parties responisble for the payment until the house is sold?

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If both parties are on the mortgage, are both parties responisble for the payment until the house is sold?

Both husband and wife who are now divorced are legally on the house mortgage. Are they both responsible for the payment if one party claims they are no longer paying the payment?

Asked on June 8, 2018 under Family Law, Missouri

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

Yes, they are both responsible for the payment as far as the bank/lender is concerned, and the bank/lender could sue either or both for the payments or balance due (in the event of a default). The mortgage is a contract: all parties to a contract are bound by its terms, so all the people who took out (are on; who signed) the mortgage are obligated to pay it. The bank/lender was not part of the marriage, was not a party to the divorce, and its rights to be paid by the people on the mortgage are not affected by the divorce. The bank/lender has all the rights it always had vs. both ex-spouses.
If the divorce decree or settlement/agreement addressed the mortgage, it may possibly affect whether one or the other has to make payments towards the mortgage on behalf of the other--but that only affects the ex-spouses rights against each other, not against the bank/lender. Both are obligated still to the bank/lender, even if one of them may have to be paying on behalf of the other. 
If the divorce decree or settlement does not address the mortgage, then if one of the ex-spoueses ends up making payments (such as to avoid default or foreclosure) while the other one does not, the one who made the payments could sue the one who did not for his or her share of the payments made.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

Yes, they are both responsible for the payment as far as the bank/lender is concerned, and the bank/lender could sue either or both for the payments or balance due (in the event of a default). The mortgage is a contract: all parties to a contract are bound by its terms, so all the people who took out (are on; who signed) the mortgage are obligated to pay it. The bank/lender was not part of the marriage, was not a party to the divorce, and its rights to be paid by the people on the mortgage are not affected by the divorce. The bank/lender has all the rights it always had vs. both ex-spouses.
If the divorce decree or settlement/agreement addressed the mortgage, it may possibly affect whether one or the other has to make payments towards the mortgage on behalf of the other--but that only affects the ex-spouses rights against each other, not against the bank/lender. Both are obligated still to the bank/lender, even if one of them may have to be paying on behalf of the other. 
If the divorce decree or settlement does not address the mortgage, then if one of the ex-spoueses ends up making payments (such as to avoid default or foreclosure) while the other one does not, the one who made the payments could sue the one who did not for his or her share of the payments made.


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