In a divorce, how is a spouse’s share determined regarding a mortgaged property?

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In a divorce, how is a spouse’s share determined regarding a mortgaged property?

Timeline: 2003: I bought a house. 2004: I got married. 2007: We added my wife’s name to the deed. Now both our names are on the deed. Still, only my name is on the mortgage. 2011: A divorce looks likely, but neither of us have filed. Balance of the mortgage: about 150K. Home value: about 140K. She said that after the sale, the bank will get the 140K, but I will owe her 70K; the sale is to pay on my mortgage. She will not put her name on the mortgage nor will she sign a “quit” statement. She will do whatever it takes to get that 70K. What should I do about that?

Asked on May 21, 2011 under Family Law, Ohio

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Not a good situation I see.  Sorry for that.  I think what you need to do is to speak with an attorney in your area on the matter. It really depends on case law and local law.  What generally happens though is that you would be entitled to recoup the down payment and possibly any payments made prior to your marriage but I am sure that the courts would not assign her a $70 thousand dollar asset as a plus in her column in the divorce.  It would be inequitable. Now, if you are going to sell the house for less than the mortgage you are going to have a deficiency of $10 - what is left after the sale.  Please make sure that the bank approves the sale - it will technically be a short sale - and that they waive the deficiency.  Please seek legal help here.  Good luck.


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